[Deschler's Precedents, Volume 7, Chapters 22 - 25]
[Chapter 24. Bills, Resolutions, and Memorials]
[C. Veto Powers]
[Â§ 18. Effect of Adjournment; the Pocket Veto]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 4928-4935]
 
                               CHAPTER 24
 
              Bills, Resolutions, Petitions, and Memorials
 
                             C. VETO POWERS
 
Sec. 18. Effect of Adjournment; The Pocket Veto

    The President is not restricted to signing a bill on a day when 
Congress is in session. He may sign within 10 days (Sundays excepted) 
after the bill is presented to him, even if that period extends beyond 
the date of the final adjournment of Congress. The President is said to 
``pocket veto'' a bill where he takes no action on the bill during the 
10-day period and where the Congress adjourns before the expiration of 
that time in such a manner as to prevent the return of the bill to the 
originating House.
    The Supreme Court first considered the question of the pocket veto 
in 1929 in what is commonly referred to as the Pocket Veto 
Case.(19) In this case a Senate bill (S. 3185) authorizing 
certain Indian tribes to offer their claims to the Court of Claims was 
presented to the President on June 24, 1926. On July 3 of that year the 
first session of the 69th Congress adjourned sine die. The 10-day 
period for Presidential approval expired on July 6, by which time the 
President had neither signed the bill nor returned it to the Senate 
with his reasons for disapproval.
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19. Okanogan, et al. v U.S., 279 U.S. 655 (1929).
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    Taking the position that the bill had become law, the Indian tribes 
affected sought adjudication of their claims in the Court of Claims in 
accordance with the terms of the bill. The United States demurred to 
their petition on the ground that the bill had not become law. The 
Court of Claims sustained the demurrer and dismissed the petition. The 
Supreme Court granted certiorari in the case (20) to 
determine
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20. 278 U.S. 597.
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[[Page 4929]]

whether ``. . . within the meaning of the last sentence [of art. I, 
Sec. 7, paragraph 2] . . . Congress by the adjournment on July 3 
prevented the President from returning the bill within 10 days, Sundays 
excepted, after it had been presented to him. . . .'' (1) 
The Court answered this question in the affirmative, and held that the 
bill did not become law.(2)
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 1. 279 U.S. 655, 674.
 2. Id. at p. 692.
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    Mr. H. William Sumners, of Texas, a member of the Committee on the 
Judiciary submitted a brief as amicus curiae  in the case in which he 
argued that only a final adjournment of the Congress, terminating its 
legislative existence, would prevent the President from returning a 
bill for reconsideration within the meaning of the Constitution and 
that during interim adjournments the President could return a bill to 
an agent of the House in which the bill originated to be presented as 
unfinished legislative business when that House reconvened.
     Counsel for the petitioners argued further that the term ``ten 
days'' in the Constitution should be construed as meaning 10 
``legislative days'' so that the period would cease running while the 
Congress was not in session.
     The amicus curiae argued that the President has only a qualified 
negative over legislation which requires him to return vetoed bills to 
the Congress along with his written objections. Thus, ``. . . the 
provision as to the return of a bill within a specified time is to be 
construed in a manner that will give effect to the reciprocal rights 
and duties of the President and of Congress and not enable him to 
defeat a bill of which he disapproves by a silent and `absolute veto,' 
that is, a so-called `pocket veto,' which neither discloses his 
objections nor gives Congress an opportunity to pass the bill over 
them. . . .'' (3)
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 3. Id. at p. 676.
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    To this the Court responded that the President does indeed have 
only a qualified negative over legislation which requires the return of 
a disapproved bill along with his written objections. To carry out this 
``monumentous duty,'' however, the President must have the full amount 
of time allotted to him by the Constitution. ``. . . And it is plain 
that when the adjournment of Congress prevents the return of a bill 
within the allotted time, the failure of the bill to become a law 
cannot properly be ascribed to the disapproval of the President . . . 
but is attributable solely to the action of Congress in adjourning 
before the time allowed the Presi

[[Page 4930]]

dent for returning the bill had expired. . . .'' (4)
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 4. Id. at pp. 678, 679.
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     The Court rejected the contention of the counsel for the 
petitioners that the 10-day limitation in the Constitution should be 
construed as 10 ``legislative'' days since it could find no precedent 
or reason to so modify the plain meaning of the words used. And for 
like reasons it rejected the contention of the amicus curiae that the 
term ``adjournment'' as used in article I section 7, paragraph 2 means 
the final adjournment of Congress. On the contrary, it found that the 
term adjournment as used in other parts of the Constitution is not 
limited to a final adjournment.
    The Court then considered the contention that the President may 
return a vetoed bill to an agent of the House in which it originated 
when that House is not in session. The Court found that ``. . . under 
the constitutional mandate [a vetoed bill] is to be returned to the 
`House' when sitting in an organized capacity for the transaction of 
business and having authority to receive the return, enter the 
President's objections on its journal, and proceed to reconsider the 
bill; and that no return can be made to the House when it is not in 
session as a collective body and its members are dispersed. . . .'' 
(5)
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 5. As authority for its finding that the term ``House'' means a 
        constitutional quorum assembled for the transaction of 
        business, the Court cited Missouri Pac. Ry. Co. v Kansas, 248 
        U.S. 276, 280, 281, 283: and 1 Curtis' Constitutional History 
        of the United States, 486, n. 1.
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    Finally, the Court found that the Congress had acquiesced in the 
``pocket vetoes'' of Presidents since the administration of James 
Madison, and that, ``long settled and established practice is a 
consideration of great weight in a proper interpretation of 
constitutional provisions of this character.'' (6)
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 6. 279 U.S. 655, 689.
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    The Supreme Court again considered the question of the ``pocket 
veto,'' albeit indirectly, in 1938 in the case of Wright v United 
States.(7)
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 7. 302 U.S. 583.
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    Senate bill No. 713 of the 74th Congress, having passed both 
Houses, was presented to the President on Friday, Apr. 24, 1936. On 
Monday, May 4, 1936, the Senate took a recess until noon, Thursday, May 
7, 1936, while the House of Representatives remained in session. S. 713 
was vetoed by the President and returned along with his message of 
disapproval to the Secretary of

[[Page 4931]]

the Senate on May 5.(8) When the Senate reconvened on May 7, 
the veto message of the President was laid before the Senate, recorded 
in the Journal, and referred to the Committee on Claims. No further 
action was taken on the bill.
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 8. The 10-day constitutional period for Presidential consideration 
        would have expired on the next day, May 6.
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    The bill proposed to grant jurisdiction to the Court of Claims to 
hear the case of David A. Wright. Mr. Wright subsequently sought 
adjudication of his case in the Court of Claims, contending that S. 713 
had become law. The Court of Claims denied his petition, and the 
Supreme Court granted certiorari.(9)
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 9. 301 U.S. 681.
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    The Court held that S. 713 had not become law since the President 
had followed a valid veto procedure. The Court found that since the 
Senate was in recess for less than three days while the House of 
Representatives remained in session in accordance with article I, 
section 5, clause 4, of the Constitution,(10) this was not 
an ``adjournment'' of Congress within the meaning of article I, section 
7, clause 2, that would have prevented the President from returning a 
vetoed bill with his objections. The Court found that the definition of 
``the Congress'' in the Constitution is precise. Both the Senate and 
the House of Representatives constitute the Congress.(11)
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10. That is, ``Neither House, during the Session of Congress, shall, 
        without the Consent of the other, adjourn for more than three 
        days, nor to any other Place than that in which the two Houses 
        shall be sitting.''
11. U.S. Const. art. I, Sec. 1.
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     The Court further answered the objection of the petitioner that a 
vetoed bill could not properly be returned to the Secretary of the 
Senate when that body was in recess:

        . . . The Constitution does not define what shall constitute a 
    return of a bill or deny the use of appropriate agencies in 
    effecting the return.
        Nor was there any practical difficulty in making the return of 
    the bill during the recess. The organization of the Senate 
    continued and was intact.
        The Secretary of the Senate was functioning and was able to 
    receive, and did receive, the bill. . . . To say that the President 
    cannot return a bill when the House in which it originated is in 
    recess during the session of Congress, and thus afford an 
    opportunity for the passing of the bill over the President's 
    objections, is to ignore the plainest practical considerations and 
    by implying a requirement of an artificial formality to erect a 
    barrier to the exercise of a constitutional right.(12)
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12. 302 U.S. 583, 589, 590.
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    A third decision regarding the pocket veto was handed down by

[[Page 4932]]

the U.S. Court of Appeals for the District of Columbia in 1974, in 
Kennedy v Sampson.(13) The Court there held that a bill--
allegedly pocket-vetoed--did become a law, and an intrasession 
adjournment of Congress did not prevent the President from returning 
the bill where appropriate arrangements had been made for the receipt 
of Presidential messages during the adjournment.
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13. 364 F Supp 1075 (D.D.C. 1973), affirmed, 511 F2d 430 (C.A.D.C. 
        1974).
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    Kennedy v Sampson involved S. 3418 of the 91st Congress (the Family 
Practice of Medicine Act), which passed both Houses and was presented 
to the President on Dec. 14, 1970. On Dec. 22, 1970, Congress adjourned 
by concurrent resolution for the Christmas holidays, the Senate until 
Dec. 28, and the House until Dec. 29. On Dec. 24, the last day of the 
10-day period for Presidential consideration, the President issued a 
memorandum of disapproval on the bill which he did not deliver to the 
Senate, although the Secretary of the Senate had previously been 
authorized to receive such messages during the 
adjournment.(14)
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14. The Secretary of the Senate has been authorized by unanimous 
        consent, on Dec. 22, 1970 [116 Cong. Rec.  43221, 91st Cong. 2d 
        Sess.], to receive messages from the President of the United 
        States during the adjournment from Dec. 22 to Dec. 28. See also 
        Procedure in the U.S. House of Representatives (97th Cong.), 
        Ch. 24 Sec. 12.1.
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    Senator Edward M. Kennedy, of Massachusetts, a supporter of the 
bill in the Senate, sought a declaratory judgment in a U.S. district 
court that S. 3418 had become public law. The court granted the 
declaratory judgment based on his finding that the Congress by 
adjourning for the Christmas holidays did not prevent the return of the 
bill within the meaning of article I, section 7, and that the bill was, 
therefore, not subject to a pocket veto by the President.
    Judge Waddy cited both the Pocket Veto and Wright cases to support 
his conclusion. From the Pocket Veto case he cited the following 
language as an underlying rationale for the court's decision in that 
case:

        ``Manifestly it was not intended that instead of returning the 
    bill to the House itself, as required by the constitutional 
    provision, the President should be authorized to deliver it, during 
    an adjournment of the House, to some individual officer or agent 
    not authorized to make any legislative record of its delivery, who 
    should hold it in his own hands for days, weeks, or perhaps 
    months--not only leaving open possible questions as to the date on 
    which it had been delivered to him, or

[[Page 4933]]

    whether it had in fact been delivered to him at all, but keeping 
    the bill in the meantime in a state of suspended animation until 
    the House resumes its sitting, with no certain knowledge on the 
    part of the public as to whether it had or had not been seasonably 
    delivered, and necessarily causing delay in its reconsideration 
    which the Constitution evidently intended to avoid.'' 279 U.S. at 
    684.

     Judge Waddy then cited the opinion of the Court in the Wright case 
where a direct comment was made on this language:

        ``These statements show clearly the sort of dangers which the 
    Court envisaged. However . . . they appear to be illusory when 
    there is a mere temporary recess.'' 302 U.S. at 595.

     Judge Waddy found this reasoning compelling, in spite of the fact 
that the case before him differed from the Wright  case in that only 
one House was in recess in the latter while both Houses were in recess 
in the former when the 10-day period for Presidential consideration 
expired:

        ``. . . The Senate returned on the third day after the final 
    day for the President to act. The interim two days would have 
    caused no long delay in delivery of the bill; not keeping it in 
    suspended animation. In three days the public would have been 
    promptly and properly informed of the President's objections, and 
    the purposes of the constitutional provisions would have been 
    satisfied.''

     In the 93d Congress, the President returned a House bill without 
his signature to the Clerk of the House, who had been authorized to 
receive messages from the President during an adjournment to a day 
certain, and the President asserted in his veto message that he had 
``pocket vetoed'' the bill during the adjournment of the House to a day 
certain. The House regarded the President's return of the bill without 
his signature as a veto within the meaning of article 1, section 7 of 
the Constitution and proceeded to reconsider and to pass the bill over 
the President's veto, after postponing consideration to a subsequent 
day. Subsequently, on Nov. 21, 1974, the Senate also voted to override 
the veto and pursuant to 1 USC Sec. 106a the enrolling clerk of the 
Senate forwarded the bill to the Archives for publication as a public 
law. The Administrator of General Services at the Archives, upon 
instructions from the Department of Justice, declined to promulgate the 
bill as public law on the day received. The question as to the efficacy 
of the congressional action in passing the bill over the President's 
veto was mooted when the House and Senate passed on Nov. 26, 1974, an 
identical bill which was signed into law on Dec. 7, 1974 (Pub. L. No. 
93-516). See also Kennedy v Jones, 412 F Supp 353 (D.D.C.

[[Page 4934]]

 1976); and for a discussion of the constitutionality of intersession 
or intrasession pocket vetoes see Kennedy, ``Congress, The President, 
and The Pocket Veto,'' 63 Va. L. Rev. 355 (1977). See also the most 
recent edition of the House Rules and Manual Sec. 112 (annotation 
following Art. I, Sec. 7 of the 
Constitution).
                          -------------------

Form of Notification of Pocket Veto

Sec. 18.1 On the first meeting day of the Senate after the Congress has 
    taken an adjournment to a day certain, the President notified that 
    body of his approval of certain bills and, in the same message, his 
    pocket veto of one bill.

    On Apr. 12, 1944,(15) the Senate met after an 
adjournment that began on Apr. 2. A message from the President was 
presented announcing that he had approved a bill (S. 662) authorizing 
pensions for certain physically or mentally helpless children as well 
as a bill (S. 1243) authorizing the construction and operation of 
demonstration plants to produce synthetic liquid fuels. In the same 
message the President announced the pocket veto on Apr. 11, 1944, of 
the bill (S. 555) for the relief of Almos W. Glasgow.
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15. 90 Cong. Rec. 3408, 78th Cong. 2d Sess.
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    Parliamentarian's Note: Announcement to the Congress of pocket 
vetoes have taken various forms. On Apr. 9, 1956, the President 
transmitted to Congress a copy of a press release announcing his 
``pocket veto'' of a bill (H.R. 3963) for the relief of Ashot and 
Ophelia Knatzakanian. This press release was attached to a veto message 
of another bill, but it was not printed in the Congressional Record.

Sec. 18.2 The President pocket vetoed three bills during a two-month 
    adjournment to a day certain, and wrote separate memorandums 
    explaining his reasons for so doing in each instance.

    On July 19, 1943,(16) there was recorded in the Journal 
memorandums of disapproval from the President of three bills he had 
pocket vetoed. They were: (1) H.R. 986, an act to define misconduct for 
compensation and pension purposes; (2) H.R. 1712, an act for the relief 
of Sarah Elizabeth Holliday Foxworth and Ethel Allene Brown Haberfeld; 
and (3)
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16. 89 Cong. Rec. 7551, 78th Cong. 1st Sess.
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[[Page 4935]]

H.R. 1396, an act making certain regulations with reference to 
fertilizers or seeds that may be distributed by agencies of the United 
States.

Sec. 18.3 The President informed the House that he had withheld his 
    approval of numerous bills during an adjournment to a day certain.

    On July 26, 1948,(17) there were received in the House 
during a period of adjournment several messages from the President 
announcing his disapproval of numerous bills.
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17. 94 Cong. Rec. 9368-73, 80th Cong. 2d Sess.
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    The Congress had adjourned on June 19, 1948, pursuant to House 
Concurrent Resolution 218, until Dec. 31, 1948. The President's 
memoranda of disapproval of each of these bills were dated July 2, 
1948, more than 10 days (excluding Sunday) after the Congress had 
adjourned.(18)
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18. See House bills 851, 1733, 1779, 3499, 1910, 4199, 4590, 6184, and 
        6818 in Calendars of the United States House of Representatives 
        and History of Legislation, final edition, 80th Cong. (1947-
        1948).
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