Barnes v. Kline

759 F.2d 21, 245 U.S. App. D.C. 1

Opinions

Opinion for the Court filed by Senior Circuit Judge McGOWAN.

Separate dissenting opinion filed by Circuit Judge BORK.

McGOWAN, Senior Circuit Judge:

This appeal from the District Court¹ requires us to determine when legislation presented to the President for his review is subject to a “pocket veto” under Article I, section 7, clause 2 of the United States Constitution. That clause provides, in part, that if the President disapproves of a bill but fails to return it to its originating house, with his objections noted, within ten days after presentment to him, the bill becomes a law “unless the Congress by their adjournment prevent its Return, in which Case it shall not be a law.” The precise issue at stake is whether adjournment of the Ninety-eighth Congress at the end of its first session “prevented” return of a bill presented to the President on the day of adjournment and thus created an opportunity for a pocket veto of that bill.

Appellants are thirty-three individual members of the House of Representatives,² joined by the United States Senate and the Speaker and bipartisan leadership of the House of Representatives.³ Appellees are Ray Kline, Acting Administrator of General Services,⁴ and Ronald Geisler, Executive Clerk of the White House. In the District Court, appellants sought declaratory and injunctive relief that would have nullified the President’s attempted pocket veto in this case and required appellees to deliver and publish as law the bill that forms the subject matter of this litigation. On cross-motions for summary judgment, the court found for appellees on the ground that intersession adjournments⁵ inherently prevent the return of disapproved legislation. Barnes v. Carmen, 582 F.Supp. 163 (D.D. C.1984). Our judgment was announced by order entered August 29, 1984, reversing the District Court’s decision and remanding the case with instructions to enter summary declaratory judgment for appellants. 743 F.2d 45 (C.A.D.C.). The same order noted that this opinion would follow.

I

On September 30, 1983, the House of Representatives passed H.R. 4042, 98th Cong., 1st Sess. (1983). 129 Cong.Rec. H7777 (daily ed. Sept. 30, 1983). The purpose of the bill was to renew, for the fiscal year ending September 30,1984, the human rights certification requirements of the International Security and Development Cooperation Act of 1981 (“ISDCA”), Pub.L. No. 97-113, § 728, 95 Stat. 1519, 1555-57 (1981), reprinted as amended in 22 U.S.C. § 2370 note, at 460-61 (1982) (Restrictions on Military Assistance and Sales to El Salvador).⁶ On November 17th, the Senate passed the bill without amendment. 129 Cong.Rec. S16,468 (daily ed. Nov. 17, 1983). The following day, the Speaker of the House and the President Pro Tempore of the Senate signed the bill, see 1 U.S.C. § 106 (1982), and the House Committee on Administration presented it to the President for his consideration. 129 Cong.Rec. H10,663 (daily ed. Dec. 14, 1983).

On the same day, November 18th, the Ninety-eighth Congress adjourned its first session sine die,⁷ and agreed by joint resolution to convene for its second session on January 23, 1984.⁸ By standing rule of the House of Representatives, the Clerk of the House is authorized to receive messages from the President whenever the House is not in session. See Rules of the House of Representatives, Rule III, cl. 5, reprinted in H.R.Doc. No. 271, 97th Cong., 2d Sess. 318 (1983); 129 Cong.Rec. H22 (daily ed. Jan. 3, 1983). Prior to adjourning, the Senate conferred similar, temporary authority on the Secretary of the Senate. 129 Cong. Rec. S17,192-93 (daily ed. Nov. 18, 1983).

The President took H.R. 4042 under consideration, but neither signed the bill into law nor returned it to the House of Representatives with a veto message. Instead, on November 30th, he issued a statement announcing that he was withholding his approval of the bill. 19 Weekly Comp.Pres. Doc. 1627 (Nov. 30, 1983). Taking the position that the President’s action constituted a valid exercise of the pocket veto power, appellees failed to deliver and publish H.R. 4042 as a public law of the United States.

Five weeks later on January 4th, appellants filed suit in the District Court to overturn the President's attempted pocket veto as constitutionally invalid and to compel the delivery and publication of H.R. 4042 as law. After the District Court advanced and consolidated the trial on the merits with appellants’ application for preliminary relief, the Senate and the Speaker and bipartisan leadership of the House joined the action as intervenors likewise opposed to the President’s action. See supra note 3.

In the District Court, appellants contend: (1) that adherence to constitutional purpose requires limiting the opportunity for a pocket veto to final adjournments between Congresses or to adjournments during which the houses of Congress have prevented return by failing to appoint agents to receive presidential messages during their absence; (2) that consequently President Reagan’s failure to return H.R. 4042 to the House of Representatives vsrithin ten days of its presentment to him had resulted in the bill’s becoming law under the Constitution; and (3) that appellees therefore are under an obligation to deliver and publish the bill as law pursuant to 1 U.S.C. §§ 106a, 112 (1982). In support of their position, appellants cited Wright v. United States, 302 U.S. 583, 58 S.Ct. 395, 82 L.Ed. 439 (1938), in which the Supreme Court held that no opportunity for a pocket veto arises when, on the tenth day after presentment, the originating house is in an intrasession adjournment of three days or fewer, and Kennedy v. Sampson, 511 F.2d 430 (D.C.Cir.1974), in which this circuit held Wright to apply to all intrasession adjournments by one or both houses of Congress, as long as a congressionally authorized agent remains to receive veto messages from the President. The Legislative Branch argued that, because intersession and intrasession adjournments are indistinguishable under modem congressional practice, Wright should be further extended to intersession adjournments.

Appellees responded that the appointment of congressional agents to receive presidential messages while Congress is in adjournment has no constitutional significance, and that in any case the Supreme Court’s ruling in the Pocket Veto Case, 279 U.S. 655, 49 S.Ct. 463, 73 L.Ed. 894 (1929), which upheld a pocket veto during an intersession adjournment of the Sixty-ninth Congress, squarely governs this case. Moreover, while agreeing with appellants that no practical difference exists today between intersession and intrasession adjournments, appellees argued that there is a constitutionally significant distinction between adjournments for three days or less and those for a longer period, as evidenced by Article I, section 5, clause 4, under which neither house may adjourn for more than three days without the consent of the other. Any adjournment of over three days would, according to appellees, create an opportunity for a valid pocket veto.⁹ Appellees contend that either construction of the congressional adjournment involved here — as an intersession adjournment or as one for more than three days — supports a finding that the President validly exercised his pocket veto power in this instance.

Accepting the first of the two alternative arguments raised by appellees, the District Court found the Pocket Veto decision “the only case directly in point” and concluded that “[ujnless and until the Supreme Court reconsiders the rule of that case,” intersession adjournments would be deemed inherently to prevent the return of disapproved legislation to Congress. 582 F.Supp. at 168. Summary judgment was accordingly entered for appellees, whereupon the Legislative Branch filed its present appeal to this court.¹⁰

II

Before examining the merits of this dispute, we address the question of whether appellants have standing to come before a federal court for resolution of the claims they press in the present litigation. In Kennedy v. Sampson, this court held that a single United States Senator had standing to challenge an unconstitutional pocket veto on the ground that it had nullified his original vote in favor of the legislation in question.¹¹ At the same time, the court stated that either house of Congress clearly would have had standing to challenge the injury to its participation in the lawmaking process, since it is the Senate and the House of Representatives that pass legislation under Article I, and improper exercise of the pocket veto power infringes that right more directly than it does the right of individual members to vote on proposed legislation. 511 F.2d at 434-36 & nn. 13 & 17.

In the present action, the thirty-three individual Representatives allege an injury identical to that of the individual lawmaker in Kennedy v. Sampson. The House Bipartisan Leadership Group and the United States Senate assert an injury of the second, more direct type described in that opinion, that is, an injury to the lawmaking powers of the two houses of Congress.¹² Under the law of this circuit,¹³ therefore, all the appellants are properly before this court.

In a wide-ranging dissent from this panel’s decision on standing, Judge Bork propounds the view that neither individual congressmen nor the houses of Congress may challenge in federal court the President’s invocation of the pocket veto power. More broadly, the dissent reads Article III to bar any governmental official or body from pursuing in federal court any claim, the gravamen of which is that another governmental official or body has unlawfully infringed the official powers or prerogatives of the first. The dissent contends that previous decisions of this court permitting congressional standing do not bind this panel because they are the result of the court’s failure to give proper regard to the underpinnings of Article Ill’s standing requirement, namely, the separation of powers. While we are largely content to let this court’s opinions speak for themselves, we wish to make clear the error in the dissent’s understanding of Article III and the doctrine of separation of powers.

It is beyond contention that Article Ill’s standing requirement is intended to “limit the federal judicial power ‘to those disputes which confine federal courts to a role consistent with a system of separated powers and which are traditionally thought to be capable of resolution through the judicial process.’ ” Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982) (quoting Flast v. Cohen, 392 U.S. 83, 97, 88 S.Ct. 1942, 1951, 20 L.Ed.2d 947 (1968)); accord Allen v. Wright, — U.S. -, 104 S.Ct. 3315, 3324-25, 82 L.Ed.2d 556 (1984); Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 2204, 45 L.Ed.2d 343 (1975). It is also indisputable that in matters involving another branch of the government, the courts must be especially wary of overstepping their proper role, for “repeated and essentially head-on confrontations between the life-tenured branch and the representative branches of government will not, in the long run, be beneficial to either.” United States v. Richardson, 418 U.S. 166, 188, 94 S.Ct. 2940, 2952, 41 L.Ed.2d 678 (1974) (Powell, J., concurring); accord Valley Forge, 454 U.S. at 473-74, 102 S.Ct. at 759; Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 222, 94 S.Ct. 2925, 2932, 41 L.Ed.2d 706 (1974).

Nonetheless, when a proper dispute arises concerning the respective constitutional functions of the various branches of the government, “[i]t is emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60 (1803). Courts may not avoid resolving genuine cases or controversies— those “of a type which are traditionally justiciable” — simply because one or both parties are coordinate branches. United States v. ICC, 337 U.S. 426, 430, 69 S.Ct. 1410, 1413, 93 L.Ed. 1451 (1949). As Justice Rehnquist has stated:

Proper regard for the complex nature of our constitutional structure requires neither that the Judicial Branch shrink from a confrontation with the other two coequal branches of the Federal Government, nor that it hospitably accept for adjudication claims of constitutional violation by other branches of government where the claimant has not suffered cognizable injury.

Valley Forge, 454 U.S. at 474, 102 S.Ct. at 759. Thus, Supreme Court precedent contradicts the dissent’s sweeping view that Article III bars any governmental plaintiff from litigating a claim of infringement of lawful function. See Immigration & Naturalization Service v. Chadha, 462 U.S. 919, 103 S.Ct. 2764, 2778, 2780, 77 L.Ed.2d 317 (1983) (Congress’s intervention in litigation over the constitutionality of the one-house veto established requisite concrete adverseness); Nixon v. Administrator of General Services, 433 U.S. 425, 439, 97 S.Ct. 2777, 2788, 53 L.Ed.2d 867 (1977) (indicating that incumbent President would “be heard to assert” claim that Presidential Recordings and Materials Preservation Act unconstitutionally impinged upon the autonomy of the Executive Branch); National League of Cities v. Usery, 426 U.S. 833, 837 & n. 7, 96 S.Ct. 2465, 2467 & n. 7, 49 L.Ed.2d 245 (1976) (cities and states had standing to sue federal government over alleged infringement of “ ‘a constitutional prohibition’ running in favor of the States as States ”), overruled on other grounds, Garcia v. San Antonio Metropolitan Transit Authority, — U.S. -, 105 S.Ct. 1005, 83 L.Ed.2d 1016 (1985); United States ex rel. Chapman v. FPC, 345 U.S. 153, 154-56, 73 S.Ct. 609, 611-12, 97 L.Ed. 918 (1953) (Secretary of Interior had standing to press a claim against the Federal Power Commission for alleged infringement of the Secretary’s role); Coleman v. Miller, 307 U.S. 433, 59 S.Ct. 972, 83 L.Ed. 1385 (1939), discussed infra pp. 28-29; see also Goldwater v. Carter, 444 U.S. 996, 100 S.Ct. 533, 62 L.Ed.2d 428 (1979) (suit by congressional plaintiffs claiming an injury to their constitutionally mandated powers was dismissed on ripeness and political question grounds, but not on standing grounds, despite lower court opinions addressing standing issue).¹⁴

In congressional lawsuits against the Executive Branch, a concern for the separation of powers has led this court consistently to dismiss actions by individual congressmen whose real grievance consists of their having failed to persuade their fellow legislators of their point of view, and who seek the court’s aid in overturning the results of the legislative process. See, e.g., Moore v. United States House of Representatives, 733 F.2d 946, 956 (D.C.Cir.1984), cert. denied, — U.S. -, 105 S.Ct. 779, 83 L.Ed.2d 775 (1985); Riegle v. Federal Open Market Committee, 656 F.2d 873, 881 (D.C.Cir.), cert. denied, 454 U.S. 1082, 102 S.Ct. 636, 70 L.Ed.2d 616 (1981); Harrington v. Bush, 553 F.2d 190, 214 (D.C.Cir.1977). Similarly, in Goldwater v. Carter, 444 U.S. 996, 100 S.Ct. 533, 62 L.Ed.2d 428 (1979), Justice Powell, concurring in the judgment, would have dismissed as unripe a claim by several members of Congress that the President’s action in terminating a treaty infringed their constitutional role: “Congress has taken no official action. In the present posture of this case, we do not know whether there ever will be an actual controversy between the Legislative and Executive Branches.” Id. at 998, 100 S.Ct. at 534. As Justice Powell also stated, however, a dispute between Congress and the President is ready for judicial review when “each branch has taken action asserting its constitutional authority” — when, in short, “the political branches reach a constitutional impasse.” Id. at 997, 100 S.Ct. at 533.

There could be no clearer instance of “a constitutional impasse” between the Executive and the Legislative Branches than is presented by this case. Congress has passed an Act; the President has failed to sign it, and has declared it not to be a law; Congress has challenged the validity of that declaration. The court is not being asked to provide relief to legislators who failed to gain their ends in the legislative arena. Rather, the legislators’ dispute is solely with the Executive Branch. And it cannot be said that Congress is asking for an advisory judicial opinion on a hypothetical question of constitutional law; Congress is seeking a declaration, not about the legal possibility of pocket vetoes during intersession adjournments, but about the validity of a particular purported veto. Congress has raised a claim that is founded on a specific and concrete harm to its powers under Article I, section 7 — a “[deprivation of a constitutionally mandated process of enacting law” that has actually occurred. Moore, 733 F.2d at 951; see United Presbyterian Church v. Reagan, 738 F.2d 1375, 1381-82 (D.C.Cir.1984); Dennis v. Luis, 741 F.2d 628, 630-31 (3d Cir.1984). That such injury is judicially cognizable has been clear since the Supreme Court held in Coleman v. Miller, 307 U.S. 433, 59 S.Ct. 972, 83 L.Ed. 1385 (1939), that state legislators had standing to litigate the question of whether the legislature had ratified a constitutional amendment, within the meaning of Article V: “We think that these senators have a plain, direct and adequate interest in maintaining the effectiveness of their votes____ They have set up and claimed a right and privilege under the Constitution of the United States to have their votes given effect ____”¹⁵ As the Executive Branch itself concedes, Congress clearly has standing to litigate the specific constitutional question presented.¹⁶

The dissent believes, however, that the separation of powers would be better served in this case by remitting the question involved to a political solution, rather than a judicial one. The dissent understandably leaves unspecified the precise course of events contemplated: a “political solution” would at best entail repeated, time-consuming attempts to reintroduce and repass legislation, and at worst involve retaliation by Congress in the form of refusal to approve presidential nominations, budget proposals, and the like. That sort of political cure seems to us considerably worse than the disease, entailing, as it would, far graver consequences for our constitutional system than does a properly limited judicial power to decide what the Constitution means in a given case. To quote again from Justice Powell’s opinion in Goldwater:

Interpretation of the Constitution does not imply lack of respect for a coordinate branch. Powell v. McCormack, [395 U.S. 486, 548, 89 S.Ct. 1944, 1978, 23 L.Ed.2d 491 (1969)].... The specter of the Federal Government brought to a halt because of the mutual intransigence of the President and the Congress would require this Court to provide a resolution pursuant to our duty “ ‘to say what the law is.’ ” United States v. Nixon, 418 U.S. 683, 703, 94 S.Ct. 3090, 3105 (1974), quoting Marbury v. Madison, 1 Cranch 137, 177 (1803).

Goldwater, 444 U.S. at 1001, 100 S.Ct. at 536 (Powell, J., concurring in the judgment). By defining the respective roles of the two branches in the enactment process, this court will help to preserve, not defeat, the separation of powers. We turn, therefore, to the merits of this dispute.

Ill

The respective roles of Congress and the President in the enactment of legislation are set forth in Article I, section 7, clause 2 of the Constitution, the first of the presentment clauses, which provides as follows:

Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law____ If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.

Thus, once a bill has been passed by both houses of Congress and presented to the President, he has ten days (not including Sundays) in which he may either sign the bill into law or return it to the originating house with his objections noted. If at the end of the time allotted he has done neither, the bill automatically becomes law as long as Congress has not by its adjournment prevented the President from returning the bill. If Congress’s adjournment has prevented return, however, the bill automatically expires, in what has come to be known as a “pocket veto.”

The question we confront is whether H.R. 4042 became law when the President failed to return it to the House of Representatives (where it originated) within the allotted time, or whether the bill expired because return was prevented by Congress’s having adjourned its first session sine die on the day of presentment of the bill. We believe this question has a clear answer. Given that both the House of Representatives and the Senate had expressly arranged before adjourning for an agent specifically authorized to receive veto messages from the President during the adjournment, it is difficult to understand how Congress could be said to have prevented return of H.R. 4042 simply by adjourning. Rather, by appointing agents for receipt of veto messages, Congress affirmatively facilitated return of the bill in the eventuality that the President would disapprove it.

The District Court held, however, that Congress’s adjournment must be .deemed to have “prevented” return of H.R. 4042 to the House, notwithstanding the existence of an agent authorized to receive the President’s veto, and that H.R. 4042 thus expired through a pocket veto. The court rested the decision on its reading of the two Supreme Court opinions and the one opinion by this court that have construed the pocket veto clause. We believe that the District Court has misapplied these precedents and that *its decision consequently frustrates the recognized purpose behind the pocket veto clause.

An examination of the Framers’ intent with respect to the pocket veto clause is a natural place to begin our analysis. Nowhere in the records of the Federal Convention of 1787, however, is there any ref-' erence to the concept of a pocket veto, or for that matter, to any of the specifics of the enactment process. Rather, the delegates were concerned with the broad issues of whether the President ought to have the power to veto legislation and, if so, whether Congress should be able to override a presidential veto.¹⁷ On these issues, however, the records speak plainly and decisively. The delegates were firmly convinced that the President must have some power to revise legislative acts. But an absolute veto, they equally strongly believed, was dangerous and unwarranted. As James Madison put it: "To give such a prerogative would certainly be obnoxious to the temper of this country.” 1 M. Farrand, The Records of the Federal Convention of 1787, at 100 (rev. ed. 1966).¹⁸ Thus, the delegates unanimously voted down an absolute veto, id. at 103, and eventually approved a resolution stating, “That the national Executive shall have a Right to negative any legislative Act, which shall not be afterwards passed, unless by two third Parts of each Branch of the national Legislative.” 2 id. at 132.

The precise means of providing for a qualified presidential veto were devised by the Committee of Detail in what, with minor modifications,¹⁹ would ultimately constitute Article I, section 7, clauses 2 and 3 of the Constitution. The Committee’s product reflects the recognition that to safeguard the qualified veto requires more than simply a set of rules directing Congress to present bills to the President and directing the President to approve or return such bills. For in the absence of any sanctions for violation of such rules, the President might simply decline to act upon a duly presented bill in order to block congressional reconsideration and thereby achieve through inaction what the Framers refused to permit him, namely, an absolute veto. The veto provision therefore mandates that a bill becomes law at the end of a ten-day period if not returned. Without more, however, Congress, which controls its own calendar,²⁰ could in turn vitiate the President’s qualified veto by cutting short or entirely eliminating, through adjournment, the period of time alloted the President to return a bill with his objections. It is that evil which the pocket veto clause forestalls by withholding the status of law from a bill whose return Congress prevented.²¹ The pocket veto clause thus is intended, not as an affirmative grant of power to the Executive, but rather as a limitation on the prerogative of Congress to reconsider a bill upon presidential disapproval, a limitation ■ triggered when Congress “by their Adjournment prevent [the bill’s] Return.”

The manifest purpose of the pocket veto clause has guided application of the clause by the Supreme Court, as well as this circuit.²² In The Pocket Veto Case, 279 U.S. 655, 49 S.Ct. 463, 73 L.Ed. 894 (1929), the earliest judicial discussion of the pocket veto clause, the Supreme Court confronted the issue of whether return of a bill to the Senate, where it originated, had been prevented when the Sixty-ninth Congress adjourned its first session sine die fewer than ten days after presenting the bill to the President. Justice Sanford’s opinion for the Court began by declaring that the term “adjournment” is used in the Constitution to refer to any occasion on which a house of Congress is not in session, and dismissed the contention that the term refers solely to final adjournments of a Congress:

We think that under the constitutional provision the determinative question in reference to an “adjournment” is not whether it is a final adjournment of Congress or an interim adjournment, such as an adjournment of the first session, but whether it is one that “prevents” the President from returning the bill to the House in which it originated within the time allowed.²³

An earlier case, the Court then noted, had held that a house of Congress is only constituted when a quorum of the membership is present. Because the veto provision specifies that the President must return a disapproved bill to its originating house, and because neither house was in session to receive delivery of the returned bill in that instance, the Court reasoned, return must be deemed to have been prevented.

Counsel for the House of Representatives had argued that, when the originating house is not in session, return may be made consistently with the constitutional provisions by delivering the bill, with the President’s objections, to a proper agent of the house of origin, for subsequent delivery to that house when it reconvenes. Addressing itself to this argument, the Court noted first “the fact that Congress has never enacted any statute authorizing any officer or agent of either House to receive for it bills returned by the President during its adjournment, and that there is no rule to that effect in either House.” Id. at 684, 49 S.Ct. at 468. Moreover, the Court stated, “delivery of the bill to such officer or agent, even if authorized by Congress itself, would not comply with the constitutional mandate.” The Court explained its position thus:

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 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 sittings, 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.

Id. at 684, 49 S.Ct. at 468. Two concerns thus led the Court to believe that return to an agent of the original house would not adequately guarantee the President the opportunity to exercise his qualified veto: (1) delivery to an agent unauthorized to make an official record of delivery would engender uncertainty over whether timely return had in fact been made and thus whether the bill had or had not become law; and (2) such a return would be followed by lengthy delay before possible reconsideration by the originating house.

That the Court was not categorically denying the use of agents for delivery of veto messages was made clear in the Court’s next, and last, encounter with the pocket veto clause. In Wright v. United States, 302 U.S. 583, 58 S.Ct. 395, 82 L.Ed. 439 (1938), the Court was called upon to determine the effectiveness of the President’s return of a bill on the tenth day after presentment, during a three-day adjournment by the originating house only. The Court, speaking through Chief Justice Hughes, held that return to that house had not been prevented and that, therefore, delivery of the veto message to the Secretary of the Senate constituted an effective return.

In the first place, the Court noted, the Senate alone had adjourned, not “the Congress.” Under the pocket veto clause, only an adjournment by “the Congress” can prevent return of a bill. Id. at 587, 58 S.Ct. at 397. The Court then dismissed the notion that a bill cannot be returned by the President to the originating house if that house is in an intrasession adjournment. In this instance, the Court stated, there clearly was no “practical difficulty” in making return during the adjournment: “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.” Id. at 589-90, 58 S.Ct. at 397-98. More importantly, the Court held that “[i]n returning the bill to the Senate by delivery to its Secretary during the recess there was no violation of any. express requirement of the Constitution. The Constitution does not define what shall constitute a return of a bill or deny the use of appropriate agencies in effecting the return.’’ Id. at 589, 58 S.Ct. at 397 (emphasis added).

As the Wright Court explained, the Pocket Veto Case was not to the contrary. Although the opinion in the earlier case had expressed the view that return can only be made to a house that is actually assembled and not to an agent of the house, that view did not control this case because it was grounded in concerns that were wholly inapplicable to a brief, intrasession adjournment by the originating house:

In such case there is no withholding of the bill from appropriate legislative record for weeks or perhaps months, no keeping of the bill in a state of suspend ed animation with no certain knowledge on the part of the public whether it was seasonably delivered, no causing of any undue delay in its reconsideration. When there is nothing but such a temporary recess the organization of the House and its appropriate officers continue to function without interruption, the bill is properly safeguarded for a very limited time and is promptly reported and may be reconsidered immediately after the short recess is over. The prospect that in such a case the public may not be promptly and properly informed of the return of the bill with the President’s objections, or that the bill will not be properly safeguarded or duly recorded upon the journal of the House, or that it will not be subject to reasonably prompt action by the House, is we think wholly chimerical.

Id. at 595, 58 S.Ct. at 400. Given “the manifest realities of the situation,” the Court held, return to an agent of the originating house was wholly effective. Id. Moreover, other adjournments might well not prevent return, although the Court declined to speculate as to which would or would not:

[Cjases may arise in which ... a long period of adjournment may result. We have no such case before us and we are not called upon to conjecture as to the nature of the action which might be taken by the Congress in such a case or what would be its effect.

Id. at 598, 58 S.Ct. at 401. Thus, the Court expressly left open the possibility that its analysis would apply to render return to an agent effective in adjournments other than brief, one-house, intrasession adjournments. The Court, however, did not leave future courts without guidance in applying the veto provisions, for it made clear that those provisions are to be interpreted in the light of their “two fundamental purposes.” Id. at 596, 58 S.Ct. at 400. Although we have already set these forth at length, the Wright Court’s formulation is important. On the oné hand, the Court stated, the veto provisions are meant to ensure that “the President shall have suitable opportunity to consider the bills presented to him____ It is to safeguard the President’s opportunity that Paragraph 2 of § 7 of Article I provides that bills which he does not approve shall not become laws if the adjournment of the Congress prevents their return.” Id. (citation omitted). At the same time, the provisions ensure “that the Congress shall have suitable opportunity to consider his objections to bills and on such consideration to pass them over his veto provided there are the requisite votes.” Id. The Court plainly stated: “Weshould not adopt a construction which would frustrate either of these purposes.” Id. (emphasis added).

Wright thus has twofold significance. First, and most important, its rule of construction requires a court to find that the President was truly deprived of his opportunity to exercise his qualified veto power before it may hold that return was “prevented”; a court that fails in this responsibility ends up sacrificing, without justification, Congress’s right to reconsider disapproved legislation. Second, Wright indisputably establishes that mere absence of the originating house does not prevent return if (1) there is an authorized agent to accept delivery of a veto message, and (2) such a procedure would not entail £he delay and uncertainty justly feared by the Court in the Pocket Veto Case.

Ten years ago, in Kennedy v. Sampson, 511 F.2d 430 (D.C.Cir.1974), this circuit applied the teaching of Wright to hold that return is not prevented by an intrasession adjournment of any length by one or both houses of Congress, so long as the originating house arranged for receipt of veto messages. Dismissing the argument distinguishing Wright on the ground that only the originating house had adjourned in that case, this court stated: "To hold that a return veto is possible while the originating House alone is in brief recess but not when both Houses are in recess would embrace ritual at the expense of logic.” Id. at 440 (footnotes omitted). As did the Court in Wright, this court demonstrated that the concerns that had led the Court in the Pocket Veto Case to disapprove return to a house not in session were simply unjustified in the context of the particular type of adjournment at issue. This court stated: “The modern practice of Congress with respect to intrasession adjournments creates neither of the hazards — long delay and public uncertainty — perceived in the Pocket Veto Case.” Id. This court noted that, whereas at the time of the Pocket Veto Case “intersession adjournments of five or six months were still common,” id. at 441 (footnote omitted), in the past decade Congress’s intrasession adjournments have typically consisted of “several recesses of approximately five days for various holidays and a summer recess (or recesses) lasting about one month.” Id. (footnote omitted). Thus, this court concluded, “intrasession adjournments of Congress have virtually never occasioned interruptions of the magnitude considered in the Pocket Veto Case.” Id. (footnote omitted).

As to the concern for public uncertainty, this court stated:

Modem methods of communication make it possible for the return of a disapproved bill to an appropriate officer of the originating House to be accomplished as a matter of public record accessible to every citizen. The status of such a bill would be clear; it has failed to receive presidential approval but may yet become law if Congress, upon resumption of its deliberations, passes the bill again by a two-thirds majority. This state of affairs generates no more public uncertainty than does the return of a disapproved bill while Congress is in actual session.

Id. (footnote omitted). Indeed, the Sampson court observed, “[t]he only possible uncertainty about this situation arises from the absence of a definitive ruling as to whether an intrasession adjournment ‘prevents’ the return of a vetoed bill. Hopefully, our present opinion eliminates that ambiguity.” Id. (footnote omitted).

In addressing ourselves to the issue in this appeal, we are of course cognizant of the fact that the Pocket Veto Case remains the only decision concerning the opportunity vel non for a pocket veto during an intersession adjournment. It was the District Court’s belief that the Pocket Veto Case is therefore “the only case directly in point.” 582 F.Supp. at 168. Emphasizing that Wright did not purport to approve of delivery to agents during anything other than a three-day adjournment and that even Sampson’s expansion of Wright did not reach beyond the line between intrasession and intersession adjournments, the District Court concluded that “neither Wright nor Kennedy v. Sampson give it license to depart from ... Pocket Veto.” Id. The court accordingly held, in essence, that intersession adjournments per se create an opportunity for a valid pocket veto.

We appreciate the District Court’s desire to remain within the boundaries of precedent. We disagree, however, with its assessment of where those boundaries lie. Moreover, we believe that the District Court’s holding fails to serve the essential purposes of the veto provisions.

The principle that we believe runs through Pocket Veto and Wright is a simple one: whenever Congress adjourns, return of a veto message to a duly authorized officer of the originating house will be effective only if, under the circumstances of that type of adjournment, such'a procedure would not occasion undue delay or uncertainty over the returned bill’s status. Thus, in Pocket Veto, the Court disapproved delivery to a congressional officer during intersession adjournments because of the length of such adjournments — then five months or longer — as well as the uncertainty resulting from the lack of any regularized procedure for recording returns. By the samé token, the brief duration of the one-house adjournment in Wright as well as the continued functioning of the entire congressional apparatus led the Court to an opposite result in that case. Finally, in Sampson, this court, following Wright’s lead, reasoned that the pocket veto clause did not apply to any intrasession adjournments, because they did not pose either of the problems cited in Pocket Veto to any greater degree than did the three-day adjournment in Wright.

Nor, we are convinced, do intersession adjournments pose either of those problems, for as appellees freely conceded before the District Court,²⁴ such adjournments do not differ in any practical respect from the intrasession adjournments at issue in Wright and Kennedy v. Sampson. To be sure, an intersession adjournment delays possible reconsideration of a returned bill: But the delay is not substantial. In stark contrast to the five or six month intersession adjournments typical at the time of the Pocket Veto Case, intersession adjournments of the modern era have an average length of only four weeks, and are thus often even shorter than intrasession adjournments.²⁵ In this case, the adjournment was for nine weeks, somewhat longer than the average but still considerably shorter than the half-year-long adjoummente common at the time of the Pocket Veto Case.26

The opportunity for immediate reconsideration after the intersession adjournment is guaranteed by the rules of each house of Congress, which mandate that all business unfinished at the end of the first session shall be resumed at the start of the second.²⁷ Moreover, because in this case, as is typical, the adjournment resolution provided that Congress could be reassembled at any time, and because the rules of the two houses permit the convening of congressional committees during adjournments,²⁸ reconsideration of a bill returned during an intersession adjournment is not necessarily delayed even the several weeks that such an adjournment lasts.

Uncertainty no more characterizes return during adjournment than does delay. As in the case of intrasession adjournments, the organization of each house of Congress remains unchanged, and their respective staffs continue to function uninterrupted.²⁹ More importantly, neither house any longer lacks an authorized procedure for acceptance of veto messages during adjournment. The House of Representatives provides by rule that return may be made to the Clerk of the House; the Senate, by resolution, provides for acceptance of veto messages by the Senate Secretary.³⁰ In both cases, the time of delivery is recorded on the journal of the respective house, and the message is retained by the authorized officer for presentation on the floor of the house immediately upon the house’s reconvening. The return may thus “be accomplished as a matter of public record accessible to every citizen.” Kennedy v. Sampson, 511 F.2d at 441. The status of a bill returned during an intersession adjournment therefore “would be clear; it has failed to receive presidential approval but may yet become law if Congress, upon resumption of its deliberations, passes the bill again by a two-thirds majority. This state of affairs generates no more public uncertainty than does the return of a disapproved bill while Congress is in actual session.” ³¹

That intersession adjournments no longer present any real obstacle to the President’s exercise of his qualified veto power was recognized by Presidents Ford and Carter, both of whom assumed the effectiveness of return vetoes made during such an adjournment.³² To conclude otherwise 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.” Wright, 302 U.S. at 590, 58 S.Ct. at 398. For the line that divides the first session of a Congress from the second has ceased to have any practical significance. Were it not for the Article I, section 4, clause 2 requirement that “[t]he Congress shall assemble at least once in every Year,” that line, it seems to us, would completely dissolve.³³

We fully recognize that clear rules respecting the pocket veto are vitally necessary in order that the status of bills in presidential disfavor be promptly resolved. In seeking clarity, we must be careful not to stray into arbitrariness by drawing an irrational line between intrasession and intersession adjournments. For we must be guided by the evident purpose of the pocket veto clause, which is simply to ensure that the President not be deprived of an opportunity to disapprove legislation. Manifestly, the president is no more deprived of that opportunity by a modern intersession adjournment than he was by the adjournments in Wright and Sampson. The line between intersession and intrasession adjournments, although a bright one, in no way furthers the intent behind the pocket veto clause, and it therefore fails to comport with the authorities interpreting the clause. Nothing is gained by drawing such a line. And what is lost is substantial, for a rule based on such a line deprives Congress of the final word on a significant portion of its legislation and grants the President an absolute veto, even though Congress has shown no disrespect for the President’s role in the enactment process.

Appellees contend, nonetheless, that failure to recognize the intersession-intrasession line constitutes a departure from an historical understanding that the pocket veto clause is to apply during intersession adjournments. Brief for the Appellees at 29-30. In support of their argument they point to a change made between two drafts of the clause in the Committee of Detail. The clause, as taken from the New York Constitution, originally stated that an unreturned bill would become law, “unless the Legislature by their Adjournment prevent [the bill’s] Return; in which Case it shall be returned on the first Day of the next Meeting of the Legislature.” 2 M. Farrand, supra p. 31, at 167. This language would presumably have precluded the pocket veto entirely. The concluding phrase of the clause was stricken, however, and in its place were substituted the words “in which case it shall not,” that is, it shall not become a law. Id. The change, appellees contend, evidences a conception on the part of the drafters that intersession adjournments would prevent return.

We would not deny the plausibility of appellees’ explanation of the deletion of one phrase and the substitution of another in the Committee of Detail’s early drafts of the veto provision. Indeed, that explanation receives indirect support from evidence indicating that the Framers envisioned that Congress would convene its annual session, complete its business within several months, and adjourn for the remaining three-fourths of the year.³⁴ As was the rule in the English Parliament of the era, business unfinished in the first session of a Congress was likely thought not to carry over to the second session.³⁵ With such a calendar in mind, members of the Committee of Detail may well have been of the view that adjournment at the end of the first session would prevent return of a bill.

But the adjournment practices of Congress as envisioned by members of the Committee bear no resemblance to the actual adjournment practices of the modern-day Congress, and to accord determinative weight to the Committee’s supposed views on whether intersession adjournments prevented return would therefore seriously disserve the larger purpose of the pocket veto clause as understood by the Supreme Court.³⁶ Given that under the principles of Wright and the Pocket Veto Case, intercession adjournments no longer pose the least obstacle to the President’s exercise of his qualified Veto, it cannot be dispositive that the Committee of Detail may have believed they would.

Appellees point out that the view that intercession adjournments do create an opportunity for a pocket veto has been accepted throughout most of the history of the Republic by both the President and Congress. Brief for the Appellees at’22-29. Beginning with President Jefferson and continuing through President Nixon, twenty-five of the thirty Presidents who have exercised the pocket veto power at all have done so during intercession adjournments. In each of these pocket vetoes— 272 in all — Congress has acquiesced. What is more, appellees argue, Congress in 1868 would have codified this practice of acquiescence into law with a bill to limit pocket vetoes to intercession adjournments, were it not for successful objections that so limiting intrasession pocket vetoes would be unconstitutional.

Clearly, however, neither the past practice of the Executive nor Congress’s acquiescence in that practice is conclusive in this case. See Immigration and Naturalization Service v. Chadha, 462 U.S. 919, 103 S.Ct. 2764, 2780-81, 2784, 77 L.Ed.2d 317 (1983). Nor is that practice particularly relevant here, given that it developed under adjournment conditions markedly different from those prevailing today.

Appellees raise a final argument in support of the result arrived at by the District Court. Conceding the absence of any practical difference between intrasession and intercession adjournments, they contend that the truly correct “bright line” must be drawn at the three-day mark. Thus, if the tenth day after presentment falls during an adjournment of oVer three days, a bill that has not yet been returned expires by pocket veto, regardless of the existence of procedures that would ensure actual return to the originating house. Appellees contend that this principle is, in fact, revealed by reading Pocket Veto and Wright together; the former case established the legal irrelevance of procedures that ensure return during the absence of Congress; the latter, it is suggested, declared that the only adjournments that do not prevent return are those of three days or fewer. Appellees also argue that the three-day rule correctly captures the intent of the Framers regarding operation of the pocket veto clause. That clause, they assert, must be read in conjunction with clause 4 of Article I, section 5 of the Constitution, which provides, in part, that “[njeither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days.” Appellees argue that, because every adjournment of over three days is, by the terms of that provision, necessarily either a simultaneous adjournment of both houses or an adjournment of one house pursuant to joint action by both houses, every such adjournment is one by “the Congress.” When, therefore, the Framers mandated that an unreturned bill expires if “the Congress by their Adjournment prevent its Return,” they must have been referring to all adjournments of over three days.

As appellees readily admit, under their interpretation of the pocket veto clause, Kennedy v. Sampson, which denied the use of the pocket veto in all intrasession adjournments of any length, was wrongly decided and should be overruled. Of course, as appellees must also be aware, this panel is not free to reconsider a decision by another panel of this court. Until it is overruled by the full court sitting en banc, Kennedy v. Sampson will remain the law of this circuit. Brewster v. Commissioner, 607 F.2d 1369, 1373 (D.C.Cir.), cert. denied, 444 U.S. 991, 100 S.Ct. 522, 62 L.Ed.2d 420 (1979).

But even if Sampson had never been decided, we would be compelled to reject appellees’ three-day rule, for we cannot agree that any special connection exists between the pocket veto clause and the clause governing adjournments by one house. Indeed, there is strong reason to believe that the Framers intended no such connection whatsoever. The pocket veto clause speaks of adjournment by “the Congress.” The phrase “by their Adjournment” by itself plainly refers to any adjournment by Congress, including an adjournment of one day, two days, or three days. Thus, the words of the pocket veto clause cannot support the three-day rule. But neither can reference to clause 4 of Article I, section 5, for that provision relates only to one-house adjournments. Appellees’ choice of three days as a bright line thus appears to have no textual grounding at all.

Appellees propose the three-day rule, it seems likely to us, because they could not credibly argue for the extreme position that every adjournment by the Congress, no matter how short, creates an opportunity for a valid pocket veto. Such an argument would render nugatory the phrase “prevent its return”; the pocket veto clause would operate as if it read “unless the Congress adjourn, in which case the bill shall not become a law.” That reading, in direct contravention to the purpose of the clause, would permit the President an absolute veto whenever Congress is not physically within the walls of the Capitol. Wright, 302 U.S. at 594, 58 S.Ct. at 399. Such an interpretation would also plainly contravene the Supreme Court’s statement in Pocket Veto that “the determinative question in reference to an ‘adjournment’ is ... whether it is one that ‘prevents’ the President from returning the bill.” 279 U.S. at 680, 49 S.Ct. at 466. Only those adjournments that actually prevent return create the opportunity /or a pocket veto. Appellees argue that every adjournment of four days or more does precisely that. But the Supreme Court’s cases plainly teach us that it is impossible to know whefher an adjournment prevents return merely from the fact that it is a particular type of adjournment. Rather, a court must examine the conditions surrounding that type of adjournment and determine whether any obstacle to exercise of the President’s qual ified veto is posed.³⁷ To choose a three-day line, or any line, simply because it is a line ignores the Court’s mandate and the purpose of the pocket veto clause.

The distinction between a three-day adjournment and a four-day adjournment is no more worthy of constitutional significance than is the distinction between modem intrasession and intersession adjournments. Neither distinction finds any support in Article I, section 7, clause 2. Both are arbitrary and frustrate the goal of protecting Congress’s right to overrule presidential disapproval without furthering the goal of protecting the President’s opportunity to disapprove of legislation. By rejecting these distinctions we do not by any means read the pocket veto clause out of the Constitution. The clause necessarily applies to the final adjournment by a Congress, because under Article I, section 2, clause 1, that Congress has gone permanently out of existence and therefore cannot reconsider a vetoed bill. See Kennedy, supra note 34, at 381. Moreover, we do not hold that intersession adjournments can never prevent return. Congress might someday revoke the existing authority of its agents to receive presidential veto messages, or rescind its rules mandating the carryover of unfinished business from the, first session to the second, or resume its early practice of half-year intersession adjournments. In such a case, an intersession adjournment would resemble that involved in the Pocket Veto Case, and that case would unquestionably govern. But the present case is not a second Pocket Veto Case. The existence of an authorized receiver of veto messages, the rules providing for carryover of unfinished business, and the duration of modern intersession adjournments, taken together, satisfy us that when Congress adjourned its first session sine die on the day it presented H.R. 4042 to the President, return of that bill to the originating house was not prevented.' We therefore hold that H.R. 4042 became law, and accordingly reverse and remand the decision of the District Court with instructions to enter summary declaratory judgment for appellants.

It is so ordered.

Footnotes

1

. Barnes v. Carmen, 582 F.Supp. 163 (D.D.C.1984).

2

. They have sued both in their individual capacities and as members of the House. Thirty-one of the thirty-three members voted in favor of the legislation in question; two took no part in the measure's final adoption on the floor. 582 F.Supp. at 164.

3

. The Senate intervened in the District Court pursuant to Fed.R.Civ.P. 24(a)(1) and 2 U.S.C. §§ 288b(c), 288e(a), 2881(a) (1982). The resolution directing Senate Legal Counsel to undertake intervention was jointly sponsored by Senators Howard Baker and Robert Byrd, Majority and Minority Leaders, respectively, of the Senate. S.Res. 313, 98th Cong., 2d Sess. (1984); 130 Cong.Rec.’S223-24 (daily ed. Jan. 26, 1984) (remarks of Sen. Baker). The Speaker of the House of Representatives and the House Bipartisan Leadership Group, which includes the Majority and Minority Leaders and Whips, intervened in their official capacities pursuant to Fed.R.Civ.P. 24(a)(2), or in the alternative under Fed.R.Civ.P. 24(b)(2). All applications of intervention were granted without opposition in the District Court, 582 F.Supp. at 164 n. 1.

4

. Mr. Kline has been substituted for his predecessor, Gerald P. Carmen, who was the General Services Administration defendant in the District Court.

5

. "Intersession" adjournments separate the first and second sessions of each Congress, in contrast to "intrasession” adjournments (those within a session) and "final" adjournments (those at the end of a Congress).

6

. Those requirements made semi-annual certification by the President that El Salvador is progressing in protecting human rights a pre-condition to continued military aid to the government of that country. ISDCA § 728(b)-(e). H.R. 4042 sought to extend those requirements through fiscal year 1984 or until Congress enacted new legislation governing the subject. H.R. 4042, 98th Cong., 1st Sess., 129 Cong.Rec. H7777 (daily ed. Sept. 30, 1983). Under the bill, the President was required to make certification on January 16, 1984, and again 180 days thereafter. See Joint Brief for the Plaintiff-Appellants and Senate Intervenor-Appellant at 5 n. 2.

7

. 129 ConcJ*ec. H 10,469, SI6,779 (daily ed. Nov. 18, 1983). Although the duration of a sine die adjournment is by definition unspecified. Congress in this instance followed its usual end-of-session practice of vesting joint authority in the Speaker of the House and the Majority Leader of the Senate to reassemble the Congress “whenever, in their opinion, the public interest shall warrant it." H.Con.Res. 221, § 2, 98th Cong., 1st Sess., 129 Cong.Rec. H10.105 (daily ed. Nov. 16, 1983); id. at S16.858 (daily ed. Nov. 18, 1983).

8

.H.J.Res. 421, 98th Cong., 1st Sess., 129 Cong. Rec. H10,105 (daily ed. Nov. 16, 1983); id. at S16,858 (daily ed. Nov. 18, 1983). The Ninety-eighth Congress convened its second session as scheduled on January 23, 1984.

9

. Appellants accordingly take the position that the merits aspect of Kennedy v. Sampson was incorrectly decided. See Brief for the Appellees at 57-63.

10

. Since the appeal was filed, Congress passed, and the President signed, a supplemental appropriations bill, Pub.L. No. 78-332, which approved disbursement of certain funds for military assistance to El Salvador upon the President’s meeting certification requirements that differ somewhat from those imposed by H.R. 4042. See Supplemental Brief for the Plaintiff-Appellants and Senate Intervenor-Appellant. Because the new law supersedes H.R. 4042 only with respect to the particular funds appropriated thereunder, and because Congress may make further appropriations to which the certification requirements of H.R. 4042 might apply if that bill became law, a live controversy remains for us to resolve.

11

.511 F.2d at 433-36. The Senator himself characterized the injury as a deprivation of his constitutional prerogative of voting to override the President’s veto. Id. at 434 n. 13. The court noted that, strictly speaking, the opportunity to override never arose because the President had not attempted a return veto. Id. Under either characterization, however, the result of the President’s inaction was a diminution of the Senator’s power to participate in the enactment of legislation through voting on proposed or returned bills. See id. at 435-36.

12

. The Senate has intervened in this action to protect "a direct constitutional interest in the efficacy of its legislative action," see Motion of the United States Senate to Intervene at 2, Barnes v. Carmen, 582 F.Supp. 163 (D.D.C.1984), while the Speaker and bipartisan leadership of the House have intervened “to fulfill their time-honored duty of asserting the rights and privileges of the House of Representatives," see Motion of the Hon. Thomas P. O’Neill, Jr., et al., to Intervene at 4, Barnes v. Carmen.

13

. See also Moore v. United States House of Representatives, 733 F.2d 946, 950-54 (D.C.Cir.1984), cert. denied, - U.S. -, 105 S.Ct. 779, 83 L.Ed.2d 775 (1985) (holding that individual members of House of Representatives have standing to sue for declaration that a tax law was unconstitutional because it originated in the Senate rather than the House).

14

. Massachusetts v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078 (1923), heavily relied upon by the dissent is in no respect to the contrary. That case involved a Tenth Amendment challenge by Massachusetts to a federal statute that established certain standards for reducing maternal and infant mortality and provided for grants of funds to states complying with the standards. The Court stated:

[T]he complaint of the plaintiff State is brought to the naked contention that Congress has usurped the reserved powers of the several States by the mere enactment of the statute, though nothing has been done and nothing is to be done without their consent; and it is plain that that question, as it is thus presented, is political and not judicial in character____

Id. at 483, 43 S.Ct. at 599 (emphasis added). The Court was moved to dismiss the suit, not because it was brought by a state, but because no invasion of any state’s power had occurred. The Court distinguished the case from, among other cases, Missouri v. Holland, 252 U.S. 416, 40 S.Ct. 382, 64 L.Ed. 641 (1920), a suit brought by a state in which "there was an invasion, by acts done and threatened, of the quasi-sovereign right of the State to regulate the taking of wild game within its borders." 262 U.S. at 482, 43 S.Ct. at 599. The Court concluded: "No rights of the State falling within the scope of the judicial power have been brought within the actual or threatened operation of the statute and this Court is ... without¡ authority to pass abstract opinions upon the constitutionality of acts of Congress.” Id. at 485, 43 S.Ct. at 600 (emphasis added). Clearly, then, Massachusetts v. Mellon did not establish that governmental officials and entities necessarily and always lack standing to raise claims of infringement of lawful functions. Rather, the case explicitly leaves open the possibility of suit by a state when "rights of the State falling within the scope of the judicial power” are at stake, a possibility later to become an actuality in, e.g.. National League of Cities, supra.

Similarly misplaced is the dissent’s reliance on Allen v. Wright, supra. In Allen, the Court held that parents of black school children lacked standing to bring a suit against the I.R.S. alleging that I.R.S. regulations governing the tax-exempt status of racially discriminatory private schools interfered with the ability of the plaintiffs’ children to obtain an education in desegregated schools. The Court reiterated the traditional standing criteria — concrete injury directly traceable to defendant’s conduct and remediable by a favorable decision — and, echoing Valley Forge and Warth v. Seldin, supra, emphasized that those criteria are grounded in, and are to be applied with reference to, the principle of separation of powers. 104 S.Ct. at 3325. The case has nothing to do with “governmental standing,” nor does the Court mention the subject.

15

. Id. at 438-42, 59 S.Ct. at 975-77. That Coleman cannot fairly be distinguished on the ground that it concerned state, rather than federal, legislators’ standing is clear from the Court’s emphasis of "the legitimate interest of public officials and administrative commissions, federal and state, to resist the endeavor to prevent the enforcement of statutes in relation to which they have official duties.” Id. at 442, 59 S.Ct. at 977.

Nor are we persuaded by the dissent’s argument that Coleman's finding of cognizable injury was premised on a grant of standing by the state supreme court below and thus is inapposite to cases originating in federal court. A pair of earlier Supreme Court cases, cited in Coleman, is instructive in this respect. In Fairchild v. Hughes, 258 U.S. 126, 42 S.Ct. 274, 66 L.Ed. 499 (1922), a citizen of New York brought suit in the Supreme Court of the District of Columbia to challenge the effectiveness of the ratification of the Nineteenth (women’s suffrage) Amendment. The court found the plaintiff to assert no judicially cognizable injury, and dismissed the suit. The same day, in Leser v. Garnett, 258 U.S. 130, 42 S.Ct. 217, 66 L.Ed. 505 (1922), the Court reached the merits of a similar challenge initiated in state court by a Maryland citizen. The fact that one case was brought in federal court while the other originated in state court, however, does not account for the differing results. The Fairchild Court stated the basis for its jurisdictional holding as follows:

[Pjlaintiff is not an election officer; and the State of New York, of which he is a citizen, had previously amended its own constitution so as to grant the suffrage to women and had ratified this Amendment. Plaintiff has only the right, possessed by every citizen, to require that the Government be administered according to law and that the public moneys be not wasted. Obviously this general right does not entitle a private citizen to institute in the federal courts a suit to secure by indirection a determination whether a statute if passed, or a constitutional amendment about to be adopted, will be valid.

258 U.S. at 129-30, 42 S.Ct. at 275 (citations omitted). By contrast, in Leser, the Court pointed out that "the constitution of Maryland limits the suffrage to men," 258 U.S. at 135, 42 S.Ct. at 217, and the "Legislature of Maryland had refused to ratify” the Nineteenth Amendment. Id. at 136, 42 S.Ct. at 217. The plaintiff in Leser thus could correctly claim that his vote would be diluted by adoption of the Nineteenth Amendment, whereas in Fairchild, that same claim was clearly false. That difference, we think, provides a more plausible basis for distinguishing the two cases than does the difference between the respective courts in which the suits originated.

Similarly, we believe, the Coleman Court thought Leser a "controlling authority,” 307 U.S. at 441, 59 S.Ct. at 976, not because both cases had come up from state courts, but rather because the plaintiffs in both asserted injury to their legal interest in an effective franchise. The majority stated: "The interest of the plaintiffs in Leser v. Garnett as merely qualified voters at general elections is certainly much less impressive than the interest of the twenty senators in the instant case.” 307 U.S. at 441, 59 S.Ct. at 976. And Justice Frankfurter, writing separately, characterized the majority opinion thus: "The right of the Kansas senators to be here is rested on recognition by Leser v. Garnett, 258 U.S. 130, of a voter’s right to protect his franchise." 307 U.S. at 469, 59 S.Ct. at 980. See also Dyer v. Blair, 390 F.Supp. 1291, 1297 n. 12 (N.D.Ill.1975) (three-judge court, per Stevens, J.) (reading Coleman as direct support for granting legislators standing to pursue in federal court claims of infringement of official role).

16

. The concession was in terms based on the participation in this case by a single house of Congress, namely the Senate. See Tape Recording of Oral Argument at 204-11. Similarly, in Kennedy v. Sampeon, 511 F.2d at 434, the Executive Branch noted that either or both houses would have standing to challenge a purported pocket veto. While, as the dissent correctly observes, parties may not create jurisdiction by mere stipulation, an interprelation of Article Ill’s "case or controversy” requirement by a coordinate branch of the federal government must not be wholly disregarded.

17

. See Immigration & Naturalization Serv. v. Chadha, 462 U.S. 919, 103 S.Ct. 2764, 2782 n. 14, 77 L.Ed.2d 317 (1983) (citing historical sources). Also debated were the fraction of Congress necessary to override a veto and the question of whether the Judicial Branch ought to have a voice in the veto process. Id.

18

. Other comments are also enlightening. Elbridge Gerry saw "no necessity for so great a controul over the legislature as the best men in the Community would be comprised in the two branches of it.” 1 M. Farrand, supra, at 98. Similarly, Roger Sherman objected to "enabling any one man to stop the will of the whole" on the grounds that "[n]o one man could be found so far above all the rest in wisdom____ [W]e ought to avail ourselves of his wisdom in revising the laws, but not permit him to overrule the decided and cool opinions of the Legislature.” Id. at 99. Benjamin Franklin, drawing on his experience with the government of Pennsylvania, voiced the specific fear that an absolute veto power would lead to a situation in which "[n]o good law whatever could be passed without a private bargain with [the Executive]." Id. at 99. Only two members — James Wilson and Alexander Hamilton — spoke in favor of an absolute negative. Id. at 98-100. Later, Hamilton himself eloquently defended the qualified veto as against the "more harsh” absolute veto power. See The Federalist No. 73 (A. Hamilton).

19

. The only significant modification undergone by the Committee’s draft after being reported back to the convention was in the time allotted to the President to consider bills, which was increased from seven to ten days.

20

. The only exception to Congress’s control over its own adjournments is in case of a disagreement between the two houses "with Respect to the Time of Adjournment," in which case the President “may adjourn them to such Time as he shall think proper.” U.S. Const, art. II, § 3.

21

. See Edwards v. United States, 286 U.S. 482, 486, 52 S.Ct. 627, 628, 76 L.Ed. 1239 (1932); J. Story, Commentaries on the Constitution of the United States § 891, at 652 (5th ed. 1905) (1st ed. Cambridge 1833).

22

. The recognition of the purpose of the veto provision also underlies the Supreme Court’s treatment of an issue related to the pocket veto, namely, whether the President may sign a bill into law during an adjournment of Congress. In La Abra Silver Mining Co. v. United States, 175 U.S. 423, 20 S.Ct. 168, 44 L.Ed. 223 (1899), the Court held that an intrasession adjournment does not preclude presidential approval of a' bill. The Court reasoned:

[I]n order that his refusal or failure to act may not defeat the will of the people, as expressed by Congress, if a bill be not approved and be not returned to the House in which it originated within that time, it becomes a law in like manner as if it had been signed by him. We perceive nothing in these constitutional provisions making the approval of a bill by the President a nullity if such approval occurs while the two Houses of Congress are in recess for a named time.

Id. at 454, 20 S.Ct. at 178.

Later, in Edwards v. United States, supra, the Court extended the reasoning and holding of La Abra to final adjournment of Congress. The Court stated:

The last sentence of [Article I, section 7, clause 2] clearly indicates two definite and controlling purposes: First. To insure promptness and to safeguard the opportunity of the'Congress for reconsideration of bills which the President disapproves; hence, the fixing of a time limit so that the status of measures shall not be held indefinitely in abeyance through inaction on the part of the President. Second. To safeguard the opportunity of the President to consider all bills presented to him, so that it may not be destroyed by the adjournment of the Congress during the time allowed to the President for that purpose.

286 U.S. at 486, 52 S.Ct. at 628. Emphasizing that "[rjegard must be had to the fundamental purpose of the constitutional provision to provide appropriate opportunity for the President to consider the bills presented to him,” id. at 493, 52 S.Ct. at 631, the Court concluded:

No possible reason, either suggested by constitutional theory or based upon supposed policy, appears for a construction of the Constitution which would cut down the opportunity of the President to examine and approve bills merely because the Congress has adjourned. No public interest would be conserved by the requirement of hurried and inconsiderate examination of bills in the closing hours of a session, with the result that bills may be approved which on further consideration would be disapproved, or may fail although on such examination they might be found to deserve approval.

Id. at 493-94, 52 S.Ct. at 431.

23

. 279 U.S. at 680, 49 S.Ct. at 466. The Court also rejected the argument that “within ten days" refers to ten legislative days rather than ten calendar days. Id. at 679-80, 49 S.Ct. at 466.

24

. 582 F.Supp. at 165-66.

25

. See Joint Brief for the Plaintiff-Appellants and Senate Intervenor-Appellant, apps. I & II, at 63-70.

26

. The adjournment in Pocket Veto differs from that at issue here, not only in its much greater duration, but also in that it divided two very different sessions of Congress, a "long” session and a "lame-duck” session. Before passage of the Twentieth Amendment in 1933, each Congress lasted from March 4 of the odd-numbered year to March 3 of the next odd-numbered year. The first session of each Congress began on the first Monday in December, as provided in U.S. Const., art. I, § 4, cl. 2, and usually lasted well into spring. The second session commenced the following December, after the November congressional elections, and had to be adjourned by March 3. With many of its members having given up or lost their seats for the following term and with only a few months in which to work, Congress during its second session was unable to give serious consideration to many of the items before it. Adjournment of the first session hence in fact often precluded reconsideration.

27

. Rule XVIII of the Standing Rules of the Senate, S. Doc. No. 10, 98th Cong., 1st Sess. 13 (1983), provides:

At the second or any subsequent session of a Congress the legislative business of the Senate which remained undetermined at the close of the next preceding session of that Congress shall be resumed and proceeded with in the same thanner as if no adjournment of the Senate had taken place.

House Rule XXVI states: “All business before committees of the House at the end of one session will be resumed at the commencement of the next session of the same Congress in the same manner as if no adjournment had taken place." Constitution, Jefferson’s Manual and Rules of the House of Representatives, H. Doc. No. 271, 97th Cong., 2d Sess., § 901, at 610-11 (1983). Further, ”[t]he business of conferences between the two Houses is not interrupted by an adjournment of a session which does not terminate the Congress, and even where one House asks a conference at one session the other may agree to it in the next session.” Id. at 611 annotation (citations omitted).

In light of the carryover rules, it would be difficult to justify finding that return was prevented simply by delay alone. Because neither the Constitution nor the rules of either house place any time limit on reconsideration of returned bills, reconsideration of a bill returned during session could easily be delayed longer than reconsideration of a bill returned during adjournment.

28

.Congressional committees, “which, in the legislative scheme of things, [are] for all practical purposes Congress itself,” Doe v. McMillan, 412 U.S. 306, 344, 93 S.Ct. 2018, 2040, 36 L.Ed.2d 912 (1973) (Rehnquist, J., concurring-and dissenting), are authorized during adjournments to continue to sit, to hold hearings, to conduct investigations, and to compel testimony and the production of documents. S.Doc. No. 10, supra note 27, at 33-34 (Rule XXVI); H.Doc. No. 271, supra note 27, § 589, at 275.

29

. Wright, 302 U.S. at 595, 58 S.Ct. at 400. Congressional practice conforms to the modern understanding under the Twentieth Amendment that the houses of each Congress constitutionally exist from January 3 of each odd-numbered year through January 3 of the next odd-numbered year, regardless whether the houses are sitting or in adjournment. Thus, even when the houses are not in session, they can exchange messages and have bills enrolled, signed, and presented to the President. H.Doc. No. 271, supra note 27, § 560, at 263 annotation (messages); id. §§ 574-577, at 268-70 (enrollment, signing, and presentation); see, e.g., 129 Cong. Rec. S17.192 (daily ed. Nov. 18, 1983); 127 Cong.Rec. S15.632 (daily ed. Dec. 16, 1981);' 125 Cong.Rec. 37,317, 37,475 (1979); 123 Cong.Rec. 38,948, 39,081 (1977); 121 Cong.Rec. 41,975, 42,276-77 (1975); 119 Cong.Rec. 43,327 (1973).

30

. See supra p. 24.

31

. Id. The procedure for return during intersession adjournment is in every respect identical to the procedure used in intrasession adjournments, the constitutional effectiveness of which has been clear to both the Executive and the Legislative Branches since Wright. President Reagan himself has frequently delivered veto messages during an adjournment of Congress, by using this procedure. See Joint Brief for the Plaintiff-Appellant app. Ill, at 71-72.

No more uncertainty surrounds this procedure than accompanies the corresponding procedure by which the Executive Clerk receives bills for the President and returns them to Congress. See Eber Bros. Wine & Liquor Corp. v. United States, 337 F.2d 624, 167 Ct.Cl. 665 (1964) (delivery of bill to the Executive Clerk while the President is overseas constitutes effective "presentment”), cert. denied, 380 U.S. 950, 85 S.Ct. 1082, 13 L.Ed.2d 968 (1965).

32

.The Ford Administration made its position on intersession pocket vetoes clear in the aftermath of Kennedy v. Jones, 412 F.Supp. 353 (D.D.C.1976), a case arising shortly after Sampson that involved a challenge by Senator Kennedy to two pocket vetoes, one during the intersession adjournment of the Ninety-third Congress and the other during a one-month intrasession adjournment of that Congress. The Executive Branch conceded to the entry of summary judgment in Senator Kennedy’s favor. Attorney General Levi announced the President’s decision that he would thereafter return disapproved bills during any intrasession and intersession adjournments of Congress, as long as appropriate arrangements for receipt of veto messages were made. 122 Cong.Rec. 11,202 (1976). On December 31, 1975, and January 2, 1976, during Congress’s intersession adjournment. President Ford vetoed, respectively, S. 2350 and H.R. 5900, which had been passed during the first session of the Ninety-fourth Congress. House Calendar, 94th Cong. 130-31 (final ed. 1977). The vetoed bills were accepted by the appointed officers of the respective houses and were noted in the respective journals. Senate Journal, 94th Cong., 1st Sess. 1431 (1975); House Journal, 94th Cong., 1st Sess. 2246-47 (1975). Upon the convening of the second session, the messages were laid before the houses. 122 Cong.Rec. 2, 145 (1976). Both vetoes were sustained. House Calendar, 94th Cong. 130-31 (final ed. 1977).

Like President Ford, President Carter also refrained from using the pocket veto during intersession adjournments. He returned S. 2096, 96th Congress, to the Senate, by delivery to the Secretary of the Senate, after the Senate had adjourned its first session sine die. 126 Cong. Rec. 6-7 (1980).

33

. The District Court apparently believed that to take the reality of intersession adjournments into consideration in determining whether they prevent return of disapproved bills would run afoul of the Supreme Court’s recent statement that the fact that a practice might be “efficient, convenient, and useful in facilitating functions of government, standing alone, will not save it if it is contrary to the Constitution." Immigration & Naturalization Serv. v. Chadha, 462 U.S. 919, 103 S.Ct. 2764, 2780-81, 77 L.Ed.2d 317 (1983). We do not agree with the District Court that Chadha'is apposite to the issue presented here. Chadha involved a procedure that, although of long-standing use, was nonetheless manifestly contrary to the dictates of the Constitution. By contrast, the issue here is whether the constitutional provision applies pX all. No court can blind itself to the facts of a situation in determining whether it falls within the intended scope of a particular provision, as both the Pocket Veto Case and Wright plainly demonstrate. See also Edwards v. United States, 286 U.S. 482, 493, 52 S.Ct. 627, 631, 76 L.Ed. 1239 (1932) (construing veto provisions to permit President to approve bills after Congress has adjourned, on the ground that ”[n]o public interest would be conserved” by a contrary rule); discussed supra, at note 22.

34

. See 2 M. Farrand, supra p. 31, at 199-200 (debate over whether Congress should sit during Winter or Spring); Kennedy, Congress, the President, and the Pocket Veto, 63 Va.L.Rev. 355, 362 (1977).

35

. See Note, The Presidential Veto Power: A Shallow Pocket, 70 Mich.L.Rev. 148, 165 (1971).

36

. As Senator Ervin remarked:

[A]t the time the Constitution was written and for many years thereafter, it was the custom of the Congress to meet only during the first few months of each year and then to go home. The 10-day provision obviously was written into the Constitution to cover the adjournments at the end of a session, since Congress would be absent from the Capitol for many months. Today, of course, we have a different situation entirely. The Founding Fathers ... did not foresee that Congress would become a year-round operation, often straining to finish its business before the constitutional end of a Congress.

Constitutionality of the President’s “Pocket Veto" Power: Hearing Before the Subcomm. on Separation of Powers of the Comm, on the Judiciary, United States Senate, 92d Cong., 1st Sess. 3 (1971); see Comment, The Veto Power and Kennedy v. Sampson: Burning a Hole in the President’s Pocket, 69 Nw.U.L.Rev. 587, 610 (1974) ("[Ijmproved transportation and a more burdensome workload have drastically altered the character of the congressional schedule. Journeys which in past years lasted days are now measured in hours. The modern Congress works almost year-round to complete a staggering agenda. These factors have produced congressional calendars marked by numerous short recesses rather than a single lengthy one.”).

37

. Thus, contrary to appellees' understanding, whether return was prevented within the meaning of the pocket veto clause and whether return was practically impossible are not two "very different" questions, Brief for the Appellees at 58, but rather are one and the same question. To determine "constitutional prevention” is, as the Court’s approach in Pocket Veto and Wright makes clear, precisely to determine "actual prevention”; such a determination cannot be made without regard for "the manifest realities of the situation." Wright, 302 U.S. at 595, 58 S.Ct. at 400. The distinction appellees draw between the two issues simply defies logic and common sense.