Mark Jan. 3 on your calendar

Mark Jan. 3, 2021 on your calendar.

House Majority Leader Steny Hoyer, D-Md., indicates the new 117th Congress is likely to begin at noon on Jan. 3 – even though it falls on a Sunday. The 20th Amendment to the Constitution mandates that Congress begin at that day and time. But the Constitution offers Congress the option to change the start date – if it can pass a law. Congress has done so many times in recent years, especially if Jan. 3 falls on a Sunday like it does in 2021. But Jan. 3 is more likely this time around for a host of reasons.

The first question is whether Congress can or wants to approve a bill to move the date – although Hoyer did leave open the possibility of beginning the 117th Congress on Jan. 4 or 5.

Moreover, congressional Democrats want as tight a window as possible to end the current 116th Congress – and then begin the new Congress immediately in January.

Before starting the new Congress, the current (old) Congress must adjourn sine die (pronounced sy-nee DIE). That’s Latin for saying the current session ends “without a date to resume.” Congress could conceivably adjourn the 116th Congress sometime in December. But that presents President Trump with a wide berth to prospectively make a recess appointment to the federal courts. The Constitution requires Senate confirmation of executive and judicial branch appointees. But Article II, Section 2 of the Constitution allows the president to fill open posts when Congress is out of session or “adjourned.” Official Washington colloquially refers to such a maneuver as a “recess appointment.” But frankly, everyone should probably call it an “adjournment appointment.” A congressional “recess” is parliamentarily different from an “adjournment” on Capitol Hill.

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If the House and Senate were adjourned sine die for the 117th Congress, Trump has an opportunity to short-circuit the confirmation process and make a recess appointment. Thus, Democrats want to block the president from that option. The Constitution requires both the House and Senate agree to adjourn. Otherwise, the bodies must huddle for at least a few moments at three-day intervals. But the Democratically controlled House wouldn’t let the Senate get away with adjourning. So Congress likely won’t adjourn sine die until 11:59:59 a.m. ET on Jan. 3 – the last possible moment it can remain in session. This hermetically seals the aperture between the end of the 116th and the constitutionally mandated start of the 117th Congress: Jan. 3 at noon ET.

Moreover, there is another scenario on the table, which concerns lots of Democrats and some Republicans: a possible veto of the annual defense policy bill. Trump has threatened to veto the measure. Trump opposes language in the bill to change the names of military bases titled after Confederates. And the president demanded that lawmakers include an extraneous provision in the package to terminate Section 230, which is shorthand for a portion of telecommunication law that shields Big Tech firms from liability.

Regardless, the House and Senate both appear to have the votes to override the president on that issue.

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The House approved the original version of the defense bill on July 21, 295-125. The Senate followed suit on July 23, passing the bill 86-14.

Successful veto overrides require a two-thirds vote. Both the House and Senate demonstrated they could meet the two-thirds threshold to override the president. The House figure is a little close. The House is currently comprised of 431 members. That means 288 members would have to vote to override. But the Senate number is well above two-thirds (67).

That said, the final version of the bill is a little different. And votes on original versions of legislation don’t always translate to the final measure – let alone a potential veto override attempt.

Trump has vetoed eight measures during his time in office. Congress has never overridden one of his vetoes. Successful veto overrides are rare. There have only been 111 in American history. The last successful veto override came in September 2016. The House and Senate overrode President Barack Obama’s veto of a bill to allow the families of victims from the 9/11 attacks to sue Saudi Arabia.

On its face, it would appear the House and Senate have the votes to override Trump if he vetoes the defense measure. But it’s apparent to Fox that some GOPers still fear retaliation from Trump if they cross them. The president tore into Senate Armed Services Committee Chairman Jim Inhofe, R-Okla., on Twitter late last week for declining to add language to repeal Section 230. Inhofe characterized it as a poison pill that could torpedo the entire measure.

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Some GOPers won’t cross the president on this issue. Especially if he will continue to hammer them – as Trump prospectively runs for president again over the next four years. Congressional Republicans still fear the president speaking out against them, tweeting about them and maybe engineering primary challenges.

Starting the new Congress on Jan. 3 may help Congress get around a threatened veto – if lawmakers pass the defense bill soon. However, if Congress passes the defense bill too close to the end of the 116th Congress, it’s possible Trump could conceivably use his “pocket veto” to dismiss the defense bill.

Pocket vetoes are extremely rare and require a unique set of parliamentary circumstances for the president to even have the option. But one could exist in these circumstances.

A “regular” veto is just that. Congress passes a bill. Sends it to the White House. And the president, rather than signing the bill, vetoes it.

However, the “pocket” veto option is available to the president if Congress sends him a bill close to the end of a congressional session.

Article I, Section 7 of the Constitution allows the president to essentially “pocket veto” a bill if he receives it and doesn’t return it to Congress (with his veto) “within ten days (Sundays excepted).” Here’s how this pertains to the end of the 116th Congress and the “pocket veto”:

Congress could pass the final version of the defense bill and send it to the president. If lawmakers dispatch the paperwork to the White House too close to the end of the 116th Congress (remember, the 10 days, Sundays excluded business from Article I, Section 7 of the Constitution), the president can sidestep the prospect of an override effort by simply holding onto the defense bill. He doesn’t have to sign it. He doesn’t have to veto it. He just holds it in his pocket (hence, the term) until the current session of Congress expires.

If Congress adjourns sine die and there is no action by the president on the bill, he has effectively vetoed the measure. Congress has no recourse. The legislation dissolves into thin air. It must start with a new bill in the new Congress.

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Thus, if House and Senate leaders really want to avoid the possibility of a pocket veto, they need to pass the defense bill as soon as possible – and wait as long as possible to adjourn the 116th Congress. Therefore, ending the present Congress at a later date (Jan. 3) could help Congress strip Trump of the opportunity to use a pocket veto for the defense bill.