[Congressional Record Volume 154, Number 160 (Thursday, October 2, 2008)]
[Extensions of Remarks]
[Pages E2197-E2198]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

[[Page E2197]]


                           POCKET-VETO POWERS

                                 ______
                                 

                           HON. NANCY PELOSI

                             of california

                    in the house of representatives

                       Thursday, October 2, 2008

  Ms. PELOSI. Madam Speaker, I submit for the Record a copy of a letter 
signed jointly by myself and the Republican Leader, Mr. Boehner. It is 
addressed to President Bush. In it, we express our views on the limits 
of the ``pocket-veto'' power. I also submit a copy of the letters 
referenced therein.

                                Congress of the United States,

                                   Washington, DC, April 14, 2008.
     Hon. George W. Bush,
     The President, The White House,
     Washington, DC.
       Dear Mr. President: This is in response to your actions of 
     December 28, 2007, on H.R. 1585, the National Defense 
     Authorization Act for Fiscal Year 2008, which you returned to 
     the House of Representatives without your approval. In 
     returning the parchment you transmitted a memorandum of 
     disapproval stating your objections to enactment of the bill. 
     This memorandum of disapproval included the following 
     paragraph:
       ``The adjournment of the Congress has prevented my return 
     of H.R. 1585 within the meaning of Article I, section 7, 
     clause 2 of the Constitution. Accordingly, my withholding of 
     approval from the bill precludes its becoming law. The Pocket 
     Veto Case, 279 U.S. 655 (1929). In addition to withholding my 
     signature and thereby invoking my constitutional power to 
     `pocket veto' bills during an adjournment of the Congress, I 
     am also sending H.R. 1585 to the Clerk of the House of 
     Representatives, along with this memorandum setting forth my 
     objections, to avoid unnecessary litigation about the non-
     enactment of the bill that results from my withholding 
     approval and to leave no doubt that the bill is being 
     vetoed.''
       The circumstances surrounding the presentment and return of 
     H.R. 1585 and the readiness of Congress to reconsider the 
     bill in light of Presidential objections compel us to 
     question the assertion that a pocket veto did or could have 
     occurred. We think you agree that the pocket veto and the 
     return veto are available on mutually exclusive bases and, 
     therefore, during mutually exclusive periods. We think you 
     should also agree that the constitutional concern that a bill 
     not become law without the President's signature when an 
     adjournment prevents a return veto does not arise when the 
     President is able to return the parchment to the originating 
     House with a statement of his objections. Accordingly, we 
     believe that your return of H.R. 1585 with your objections is 
     absolutely inconsistent with this most essential 
     characteristic of a pocket veto, to wit: retention of the 
     parchment by the President for lack of any body to whom he 
     might return it with his objections. Your successful return 
     of H.R. 1585 establishes that you were not prevented from 
     returning it.
       H.R. 1585 was presented to you on December 19, 2007. You 
     returned the bill on December 28, 2007--the eighth of the ten 
     days allowed under the Constitution. The Clerk was available 
     pursuant to the standing rules of the House to receive your 
     message. The Congress was in a position to reconsider the 
     bill in light of Presidential objections, even in the first 
     session of the instant Congress. Although the House had 
     adjourned sine die (without specifying a day of return), it 
     did so with provision for its reassembly. Moreover, both 
     houses were to reassemble in due course for a second session 
     of the instant Congress.
       After an enrolled bill is presented for Presidential 
     approval, the parchment ultimately meets one of four ends. It 
     might be tendered to the Archivist by the President because 
     he signed it or allowed it to become law without his 
     signature. It might be referred to committee by the first 
     house to sustain a veto. It might be tendered to the 
     Archivist by the second house to override a veto. Or it might 
     be retained by the President because he ``pocketed'' it. If 
     the President returns a parchment to the Congress, then he 
     has not pocketed it, and it therefore is subject to 
     reconsideration. Either the Congress has prevented the 
     President from returning the parchment with a statement of 
     his objections or it has not. By returning the parchment a 
     President is admitting that he is not prevented from 
     returning it.
       The House has treated your message of December 28, 2007, on 
     H.R. 1585 as a return veto. On January 15, 2008, the 
     message--comprising the parchment and your memorandum of 
     disapproval--was laid before the House. After the memorandum 
     was read, your objections were entered in the Journal and the 
     House obeyed the command of the Constitution to ``proceed to 
     reconsider'' the bill. Rather than immediately considering 
     the ultimate question on overriding or sustaining the veto, 
     the House chose as its first mode of reconsideration a 
     referral to committee.
       We enclose for your consideration copies of previous 
     letters to President George H. W. Bush and President Clinton, 
     respectively dated November 21, 1989, and September 7, 2000. 
     Those letters from Speaker Foley and Leader Michel and from 
     Speaker Hastert and Leader Gephardt expressed the profound 
     concern of the bipartisan leaderships over similar assertions 
     of pocket vetoes. We echo those concerns and urge you to give 
     appropriate deference to such judicial resolutions of this 
     question as have been possible.
       Thank you for your attention to this matter.
           Best regards,
     Nancy Pelosi,
       Speaker of the House.
     John A. Boehner,
       Republican Leader.
                                  ____
                                  
                                    Congress of the United States,


                                     House of Representatives,

                                Washington, DC, September 7, 2000.
     Hon. William J. Clinton,
     The President, The White House,
     Washington, DC.
       Dear Mr. President: This is in response to your actions on 
     H.R. 4810, the Marriage Tax Relief Reconciliation Act of 
     2000, and H.R. 8, the Death Tax Elimination Act of 2000. On 
     August 5, 2000, you returned H.R. 4810 to the House of 
     Representatives without your approval and with a message 
     stating your objections to its enactment. On August 31, 2000, 
     you returned H.R. 8 to the House of Representatives without 
     your approval and with a message stating your objections to 
     its enactment. In addition, however, in both cases you 
     included near the end of your message the following:
       Since the adjournment of the Congress has prevented my 
     return of [the respective bill] within the meaning of Article 
     I, section 7, clause 2 of the Constitution, my withholding of 
     approval from the bill precludes its becoming law. The Pocket 
     Veto Case, 279 U.S. 655 (1929). In addition to withholding my 
     signature and thereby invoking my constitutional power to 
     ``pocket veto'' bills during an adjournment of the Congress, 
     to avoid litigation, I am also sending [the respective bill] 
     to the House of Representatives with my objections, to leave 
     no possible doubt that I have vetoed the measure.
       President Bush similarly asserted a pocket-veto authority 
     during an intersession adjournment with respect to H.R. 2712 
     of the 101st Congress but, by nevertheless returning the 
     enrollment, similarly permitted the Congress to reconsider it 
     in light of his objections, as contemplated by the 
     Constitution. Your allusion to the existence of a pocket-veto 
     power during even an intrasession adjournment continues to be 
     most troubling. We find that assertion to be inconsistent 
     with the return-veto that it accompanies. We also find that 
     assertion to be inconsistent with your previous use of the 
     return-veto under similar circumstances but without similar 
     dictum concerning the pocket-veto. On January 9, 1996, you 
     stated your disapproval of H.R. 4 of the 104th Congress and, 
     on January 10, 1996--the tenth Constitutional day after its 
     presentment--returned the bill to the Clerk of the House. At 
     the time, the House stood adjourned to a date certain 12 days 
     hence. Your message included no dictum concerning the pocket-
     veto.
       We enclose a copy of a letter dated November 21, 1989, from 
     Speaker Foley and Minority Leader Michel to President Bush. 
     That letter expressed the profound concern of the bipartisan 
     leaderships over the assertion of a pocket veto during an 
     intrasession adjournment. That letter states in pertinent 
     part that ``[s]uccessive Presidential administrations since 
     1974 have, in accommodation of Kennedy v. Sampson, exercised 
     the veto power during intrasession adjournments only by 
     messages returning measures to the Congress.'' It also states 
     our belief that it is not ``constructive to resurrect 
     constitutional controversies long considered as settled, 
     especially without notice or consultation.'' The Congress, on 
     numerous occasions, has reinforced the stance taken in that 
     letter by including in certain resolutions of adjournment 
     language affirming to the President the absence of ``pocket 
     veto'' authority during adjournments between its first and 
     second sessions. The House and the Senate continue to 
     designate the Clerk of the House and the Secretary of the 
     Senate, respectively, as their agents to receive messages 
     from the President during periods of adjournment. Clause 2(h) 
     of rule II, Rules of the House of Representatives; House 
     Resolution 5, 106th Congress, January 6, 1999; the standing 
     order of the Senate of January 6, 1999. In Kennedy v. 
     Sampson, 511 F.2d 430 (D.C. Cir. 1974), the court held that 
     the ``pocket veto'' is not constitutionally available during 
     an intrasession adjournment of the Congress if a 
     congressional agent is appointed to receive veto messages 
     from the President during such adjournment.
       On these premises we find your assertion of a pocket veto 
     power during an intrasession adjournment extremely 
     troublesome. Such

[[Page E2198]]

     assertions should be avoided, in appropriate deference to 
     such judicial resolution of the question as has been possible 
     within the bounds of justifiability.
       Meanwhile, citing the precedent of January 23, 1990, 
     relating to H.R. 2712 of the 101st Congress, the House 
     yesterday treated both H.R. 4810 and H.R. 8 as having been 
     returned to the originating House, their respective returns 
     not having been prevented by an adjournment within the 
     meaning of article I, section 7, clause 2 of the 
     Constitution.
           Sincerely,
     J. Dennis Hastert,
       Speaker.
     Richard A. Gephardt,
       Democratic Leader.
                                  ____
                                  


                                Congress of the United States,

                                Washington, DC, November 21, 1989.
     Hon. George Bush,
     President of the United States, The White House, Washington, 
         DC.
       Dear Mr. President: This is in response to your action on 
     House Joint Resolution 390. On August 16, 1989, you issued a 
     memorandum of disapproval asserting that you would ``prevent 
     H.J. Res. 390 from becoming a law by withholding (your) 
     signature from it.'' You did not return the bill to the House 
     of Representatives.
       House Joint Resolution 390 authorized a ``hand enrollment'' 
     of H.R. 1278, the Financial Institutions Reform, Recovery, 
     and Enforcement Act of 1989, by waiving the requirement that 
     the bill be printed on parchment. The hand enrollment option 
     was requested by the Department of the Treasury to insure 
     that the mounting daily costs of the savings-and-loan crisis 
     could be stemmed by the earliest practicable enactment of 
     H.R. 1278. In the end, a hand enrollment was not necessary 
     since the bill was printed on parchment in time to be 
     presented to you in that form.
       We appreciate your judgment that House Joint Resolution 390 
     was, in the end, unnecessary. We believe, however, that you 
     should communicate any such veto by a message returning the 
     resolution to the Congress since the intrasession pocket veto 
     is constitutionally infirm.
       In Kennedy v. Sampson, the United States Court of Appeals 
     held that ``pocket veto'' is not constitutionally available 
     during an intrasession adjournment of the Congress if a 
     congressional agent is appointed to receive veto messages 
     from the President during such adjournment. 511 F.2d 430 
     (D.C. Cir. 1974). In the standing rules of the House, the 
     Clerk is duly authorized to receive messages from the 
     President at any time that the House is not in session. 
     (Clause 5, Rule III, Rules of the House of Representatives; 
     House Resolution 5, 101st Congress, January 3, 1989.)
       Successive Presidential administrations since 1974 have, in 
     accommodation of Kennedy v. Sampson, exercised the veto power 
     during intrasession adjournments only by messages returning 
     measures to the Congress.
       We therefore find your assertion of a pocket veto power 
     during an intrasession adjournment extremely troublesome. We 
     do not think it constructive to resurrect constitutional 
     controversies long considered as settled, especially without 
     notice of consultation. It is our hope that you might join us 
     in urging the Archivist to assign a public law number to 
     House Joint Resolution 390, and that you might eschew the 
     notion of an intrasession pocket veto power, in appropriate 
     deference to the judicial resolution of that question.
           Sincerely,
     Thomas S. Foley,
       Speaker.
     Robert H. Michel,
       Republican Leader.

       

                          ____________________