The Pocket Veto: Historical Practice and Judicial Precedent
[The follow ing two m em oranda exam ine historical practice and judicial precedent under the Pocket Veto Clause o f the C onstitution, A rt. I, § 7, cl. 2, in order to advise the President concerning the efficacy o f a p ocket veto during both intrasession and intersession adjournm ents of Congress.]
I.
February 10, 1982
M EM O R A N D U M OPINION FO R THE COUNSEL TO THE PRESIDENT
This m em orandum discusses generally the President’s power to pocket veto legislation, with specific reference to the President’s pocket veto of H.R. 4353 during the recent intersession adjournm ent o f the 97th Congress. A rticle 1, § 7, clause 2 of the Constitution provides:
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, w ho shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Recon sideration two thirds of that House shall agree to pass the Bill, it shall be sent, together w ith the Objections, to the other House, by w hich it shall likewise be reconsidered; and if approved by two thirds o f that House, it shall become a Law. . . . If any Bill shall not be returned by the President w ithin ten Days (Sundays ex cepted) after it shall have been presented to him, the Same shall be a Law, in like M anner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which case it shall not be a Law. (Em phasis supplied.) The italicized phrase is commonly referred to as the “ pocket veto” provision because it empowers the President to prevent a bill’s becom ing law sim ply by placing it in his pocket— i.e., neither signing it nor returning it with his objections to its House of origin. The functional difference
134 between ordinary vetoes and pocket vetoes is that the latter cannot be overridden by Congress. As the President’s recent pocket veto of H.R. 4353 demonstrates, the questions raised by the pocket veto provision have considerable practical significance. If, contrary to the advice given orally by this Office, the pocket veto of H .R . 4353 was ineffective, that provision became law at the expiration of the ten-day period (Sundays excepted) after it was presented to the President. Because of the short time period involved, and because of the possible adverse consequence of an erroneous decision to pocket veto a bill rather than return it to Congress with objections, questions regarding the pocket veto provision often attain consider able urgency and importance. We therefore believe that it is useful to examine in advance the various issues arising under the pocket veto provision in a relatively comprehensive fashion in order to advise you regarding the legality of pocket vetoes in situations that are likely to arise in the future. The pocket veto provision appears to have been adopted without controversy by the Framers; the proceedings and debates of the Constitutional Convention shed no light on its meaning. Interpretation of the provision must therefore rely on historical practice and on three pertinent judicial decisions: The Pocket Veto Case, 279 U .S. 655 (1929); Wright v. United States, 302 U .S. 583 (1938); and Kennedy v. Sampson, 511 F.2d 430 (D .C. Cir. 1974).
I. Historical Practice
Presidents throughout our history have used the pocket veto power fre quently— a fact which is not surprising in light of the tendency on the part of Congress to present a mass of legislation to the President just before it adjourns and in view of the convenience to the President of exercising a veto that cannot be overridden by Congress. M ost pocket vetoes have occurred after final adjourn ments of C ongress or intersession adjournments between the first and second sessions.1 Presidents have also pocket vetoed bills during intrasession adjourn ments2 of varying lengths,3 but this practice has been relatively unusual.4 The historical practice therefore strongly supports the pocket veto during final and intersession adjournm ents, but is inconclusive for intrasession adjournm ents.5
1 See H ouse D oc. N o. 493, 70th C o n g ., 2d Sess. (1928) (m em orandum prepared by the A ttorney G eneral and p resented to C ongress; relied on by Suprem e C ourt in The Pocket Veto Case, 2 7 9 U .S. 655 (1929)). 2 T he A ttorney G eneral rendered an opinion in 1943 concluding that the pocket veto provision w as triggered by an adjournm ent w ithin th e first session o f the 78th C ongress w hich lasted from July 8 to Septem ber 14, 1943. 4 0 Op. A tt'y G en. 274 (1943). 3 See Office o f Legal C ounsel, Pocket Vetoes D uring Short H oliday R ecesses (Jan. 13, 1971), Pocket V etoes D uring A djournm ents o f C ongress W ithin a S ession (Nov 19, 1968). 4 See Kennedy v Sampson, 511 F.2d at 4 4 2 -4 5 (appendix analyzing pocket vetoes d u n n g all in trasessio n adjournm ents o f m ore than three days since 1800) 5 W hile highly relevant, the practice engaged in by the Executive Branch and generally acquiesced in by C o n g ress is not dispositive See The Pocket Veto Case, 279 U .S . at 690 (executive practice, acquiesced in b y the legislature, is entitled to “ great re g a rd ” but is “ not absolutely binding on the ju d icial departm ent. . ” ) (quoting State v South Norwalk, 77 C onn 2 5 7 , 264). It is ultim ately the province and duty o f the Judicial Branch to “ say w hat the law is.” United States v N ix o n ,4 1 8 V .S .6 8 3 ,7 0 3 (l974),quotingM arburyy.M adison,5\J S (J Cranch) 137, 177(1 8 0 3 ). Executive practices, even ones o f long duration, m ust yteld to contrary jud icial interpretations.
135 II . Judicial Decisions
A. The Pocket Veto Case
The Pocket Veto Case involved a Senate bill which authorized certain Indian tribes to bring suit against the United States in the Court of Claims. The bill passed both Houses and was d u ly presented to the President on June 24 ,1 9 2 6 . On July 3, 1926, the House of R epresentatives adjourned sine die and the Senate adjourned to N ovem ber 12, the date to w hich, sitting as a court of impeachment, it had previously adjourned fo r the trial of certain articles of im peachm ent.6 The July 3 adjournm ent was the final adjournm ent of the first session of the 69th Congress. The ten-day period (Sundays excepted) provided for presidential action under A rticle I, § 7, clause 2 expired on July 6, 1926, three days after the first session o f Congress adjourned. The President neither signed the bill nor returned it to the Senate and th e bill was not published as a law. Contending that the bill had become a law without the President’s signature, the Indian tribes filed suit in the Court of Claims. The Court of Claims sustained the U nited States’ demurrer an d the Supreme Court affirmed unanimously. Justice S anford’s opinion concluded that the word “ adjournm ent” was not lim ited to final adjournments o f a Congress, but also included interim adjourn m ents between or within sessions. The determ inative question, therefore, was not w hether C ongress had “ adjourned,” but rather whether the adjournment was one which “ prevent[ed]” the President from returning a bill to the House in which it originated in the time allowed. The specific question, in the C ourt’s view, was whether the intersession adjournm ent o f C ongress prevented the President from returning the bill, or w hether the Constitution was satisfied by the possibility of delivery to an officer or agent o f the H ouse of origin, to be held by him and delivered to the House when it resum ed its sittings for th e next session. The Court concluded that “ the ‘H ouse’ to which the bill is to be returned, is the House in session.” 279 U .S. at 682. It followed that
under the constitutional mandate [the bill] is to be returned to the “ H ouse” 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 jou rn al, and proceed to reconsider the bill; and that no return can be m ade to the House when it is not in session as a collective body and its members are dispersed.
Id. at 683. In rejecting the contention that delivery to an agent sufficed when the House was not in session, the Court observed that Congress had never authorized agents to receive bills returned by the President during its adjournment. Moreover,
6 T h e im peachm ent pro ceed in g s were b ro u g h t against G eo rg e W. E nglish, a federal d istrict ju d g e English resigned b efore th e dale for th e Senate trial. S ee 68 C ong. R ec 3 - 4 (1926).
136 delivery to such an agent, even if authorized by Congress, “ would not comply with the constitutional mandate.” Id. at 684:
The H ouse, not having been in session when the bill was delivered to the officer or agent, could neither have received the bill and objections at that time, nor have entered the objections upon its journal, nor have proceeded to reconsider the bill, as the Constitu tion requires; and there is nothing in the Constitution which authorizes either House to make a nunc pro tunc record of the return of a bill as of a date on which it had not, in fact, been returned. M anifestly 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 adjournm ent 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 neces sarily causing delay in its reconsideration which the Constitution evidently intended to avoid. In short, it was plainly the object of the constitutional provision that there should be a timely return of the bill, which should not only be a matter of official record definitely shown by the journal of the House itself, giving public, certain and prom pt knowledge as to the status of the bill, but should enable Congress to proceed immediately with its recon sideration; and that the return of the bill should be an actual and public return to the House itself, and not a fictitious return by a delivery of the bill to som e individual which could be given a retroactive effect at a later date when the time for the return of the bill to the House had expired.
Id.
B. Wright v. United States
Wright v. United States, 302 U .S. 583 (1938), involved a Senate bill which granted jurisdiction to the Court of Claims to adjudicate the petitioner’s claim against the U nited States. The bill passed both Houses during the first session of the 74th Congress and was presented to the President on April 24, 1936. On May 4 ,1 9 3 6 , the Senate recessed until noon on May 7; the House of Representa tives remained in session. Because the Senate was in recess for not more than three days, it was not necessary to obtain the consent of the House of Representa
137 tives pursuant to A rticle I, § 5 , clause 4 of the C onstitution.7 On May 5, the tenth day (Sundays excepted) after receiving the bill, the President returned it to the Senate with a m essage stating his objections. The bill and the message were delivered to the Secretary of the Senate. The Senate received the President’s m essage when it reconvened o n May 7 and referred the bill and the President’s m essage to com m ittee. No further action was taken. T he petitioner presented his petition to the Court of Claims, contending that the P resident’s veto of the bill was ineffective because, under The Pocket Veto Case, delivery to an agent o f the Senate did not constitute a constitutionally sufficient retu rn .8 The Court of Claim s denied the petition and the Supreme Court affirm ed. The C o u rt’s opinion, per C hief Justice Hughes, held only that the President’s veto of the legislation was effective; it did not directly concern the pocket veto. In holding that the President was not prevented from vetoing the bill by the tem porary recess of the Senate, however, the opinion necessarily implied that a pocket veto of the bill would have been ineffective. Moreover, the C ourt’s analysis contained broad language which stands in sharp contrast to The Pocket Veto Case. The C ourt held, first, that “ Congress” had not adjourned when only one of its H ouses was in recess. Because “ Congress” was comprised of both Houses, the recess of the Senate while the H ouse rem ained in session did not amount to an adjournm ent of Congress. Second, the C ourt rejected the argument that the President was prevented from returning the bill because of the Senate’s recess. It noted that the Constitution did not forbid return o f a bill to an agent of the Congress such as the Secretary of the Senate. N or was there any practical difficulty in returning the bill during a 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. . . . There is no greater difficulty in returning a bill to one of the two Houses when it is in recess during a session o f Congress than in presenting a bill to the President by sending it to the White House in his tem porary absence. . . . 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 fo r the passing of the bill over the Presi d en t’s objections, is to ignore the plainest practical considerations and by im plying a requirement o f an artificial formality to erect a barrier to the exercise o f a constitutional right.
Id. at 5 8 9 -9 0 . The C ourt distinguished The Pocket Veto C ase on the ground that the dangers which the C ourt had envisaged with respect to an intersession adjournment by
7 A rtic le I, § 5 , clause 4 provides: “ N either H o u se ,d u rin g the S ession o f C o n g re ss,sh a ll, w ithout the C onsent of the other, adjourn for m ore than three days, n o r to any other Place than that in w hich the tw o H ouses shall b e sitting.” 8 T h e p etitio n er co n ten d ed that the bill had n o t been pocket vetoed because the pocket veto provision applies only w hen both H ouses have adjourned. Brief fo r Petitioner in Wright v United States at 18
138 both Houses were illusory in the context of an intrasession adjournment by one House for a period of three days or less. In the case of such a brief recess, there was no danger that the public would not be promptly and fully informed of the return of the bill with the President’s objections, or that the bill would not be properly safeguarded or duly recorded upon the journal o f the House, or that it would not be subject to reasonably prompt action by the House. Id. at 595. The Court specifically declined to address the question whether an intrasession adjournment of m ore than three days, for which the consent of both Houses is required pursuant to Article I, § 5, clause 4, would prevent the return of a bill and thereby trigger the pocket veto provision. Id. at 598. It held only that where the Congress had not adjourned and the House in which the bill originated is in recess for not more than three days under the constitutional permission while Congress is in session, the bill does not become a law if the President has delivered the bill with his objections to the appropriate officer of that House within the prescribed ten days and the Congress does not pass the bill over his objections by the requisite votes. Id.9
C. Kennedy v. Sampson
Kennedy v. Sampson, 511 F.2d 430 (D .C . Cir. 1974), involved a Senate bill which was presented to the President on D ecem ber 14, 1970. On Decem ber 22 both Houses adjourned pursuant to a concurrent resolution, the Senate until December 28 and the House until December 29. The Senate authorized its Secretary to receive presidential messages during the adjournment. On D e cem ber 24 the President issued a memorandum announcing that he would withhold his signature from the bill; the President did not, however, return the bill to the Senate. T he ten-day period (Sundays excepted) for presidential approval expired on Decem ber 25. The bill was not published as a law. The plaintiff, a United States Senator who had voted for the measure, brought suit in district court against the Administrator o f the General Services Admin istration and the Chief of W hite House Records seeking a declaration that the bill had become law and an order requiring the defendants to publish the bill as law. The defendants contended that the bill had been validly pocket vetoed and had not become law. T he district court granted summary judgm ent for the plaintiff and the U nited States C ourt of A ppeals for the D istrict of C olum bia C ircuit affirm ed.10 The court, p e r Judge Tam m ,11 began by observing that the pocket veto pow er is an exception to the general rule that Congress may override the President’s veto.
9 Justice Stone w rote an opinion, jo in ed by Ju stice B randeis, w hich agreed that the bill did not becom e a law but co n clu d ed, contrary to the m ajority opinion, that the bill had been validly pocket vetoed Justice C ardozo to o k no part in the decision o f the case 10 The S olicitor G en eral determ ined not to petition the S uprem e C ourt for a w rit o f ce rtio ran 11 Ju d ges fiahy and B azelon concurred in the opinion
139 As su ch , in the cou rt’s opinion, the power m ust be limited by the specific purpose w hich it was intended to serve. Applying this narrow construction, the court held that the congressional adjournment at issue fell within the rule of Wright v. United States rather than that o f The Pocket Veto C ase. The court found it immaterial that the adjournm ent was for five days rather than three days, as in Wright. N or was it significant that both Houses had adjourned, rather than only the House of origin as in Wright, since the presence or absence o f the non-originating House could have no relevance to the validity o f the pocket veto. Moreover, Judge Tamm concluded that a pocket veto would have been inap propriate even under the standards set forth in The Pocket Veto Case: “ [t]he m odem practice o f Congress w ith respect to intrasession adjournments creates neither of the hazards— long delay and public uncertainty— perceived in The Pocket Veto C a se .” 511 F.2d at 440. Intrasession adjournments virtually never involved interruptions of the m agnitude considered in The Pocket Veto Case; and “ [m ]odem m ethods of com m unication,” id. at 441, make the return of a disapproved bill to the appropriate officer o f an originating House a matter of public record. T he court therefore concluded broadly that an intrasession adjournment of Congress does not prevent the President from returning a bill which he disapproves so long as appropriate arrangem ents are made for the receipt of presidential messages during the adjournment. Id. at 437. See also id. at 4 4 2 .12
III. Interests Served by the Pocket Veto
T hese cases identify three distinct interests— sometimes conflicting, som e tim es reinforcing— served by the pocket veto provision of the Constitution: (1) the interest in ensuring that both Congress and the President have their due say in the process of lawmaking (the interest in mutuality); (2) the interest in avoiding delay in the process by which Congress determines whether to override a presidential veto (the interest in prompt reconsideration); and (3) the interest in ensuring public awareness of, and certainty about, the status of legislation (the interest in public certainty).
A. Mutuality
A rticle I, § 7 o f the Constitution provides generally that both the President and the C ongress play a role in the lawmaking process— the President by approving
12 Follow ing the Kennedy decision, the D epartm ent o f Justice issued a press release stating
P resident Ford has determ ined that h e w ill use the return veto rather than the p ocket veto during intrasesston and in tersessio n recesses a n d adjournm ents o f th e C ongress, provided that the H ouse of C ongress to w hich th e bill and the P resident’s objections m ust be returned according to the C onstitution has specifically authorized an officer or other agen t to receive return vetoes during such p eriods.
D epartm ent o f Ju stice P ress R elease, Apr. 13, 1 9 7 6 ,a t 2 [ N o t e * T h e im m ediate occasion for this p ressrelea se was the consent ju d g m e n t in Kennedy v Jones, 4 1 2 F.Supp. 353 (D .D C . 1976) Ed.]
140 or vetoing legislation, the Congress by passing legislation initially and by overriding presidential vetoes. The Fram ers evidently intended that both branches would play their assigned role whenever possible. As the Court said in Wright v. United States, 302 U.S. at 596:
T he c o n stitu tio n a l p ro v isio n s [fo r p re sid e n tial v eto, c o n gressional override, and pocket veto] have two fundamental pur poses: (1) that the President shall have suitable opportunity to consider the bills presented to him, and (2) 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.
The Framers recognized that certain technical rules were necessary in order to prevent frustration of the interest in mutuality. See 1 J. Story, Commentaries on the Constitution o f the United States § 891 (5th ed. 1905). First, there was the possibility that the President would fail to act on a bill presented to him by Congress. Because the bill would not be signed, it would not become a law; but because the President would not return it with his objections to its House of origin, there would be no opportunity for Congress to override a veto. To avoid a de facto veto which would deprive Congress of its power to override, the Framers provided that the President m ust act within ten days (Sundays excepted) or the bill would become law as if he had signed it. This solution, however, created a second problem. If Congress was in adjourn ment on the tenth day (Sundays excepted) after a bill was presented to the President, so as to prevent the President from returning the bill with his objec tions, the bill would automatically become law on the expiration of the tenth day and the President would be deprived of his veto power. Congress could hold up the presentation of legislation to the President until the day it went out of session, thereby essentially writing the President out of the lawmaking process. The pocket veto power dealt with this problem by providing that a bill would not become law if the President failed to sign it and was prevented from returning it because of a congressional adjournm ent.13 The pocket veto serves the interest in mutuality because it achieves the best possible approximation of the shared lawmaking generally contemplated in Article I, § 7 in those situations in which the presidential veto and congressional override powers cannot coexist. When the choice is between depriving the President of his veto or retaining the presidential veto but denying Congress the power to override, the interest in mutuality is best served by the latter alternative. Congress has power to avoid any possibility of a pocket veto by arranging to be in session on the tenth day (Sundays excepted) after a bill is presented to the President, or by delaying presentation of a bill until a time when it is scheduled to be in session on the tenth day (Sundays excepted) following. Moreover, even if a
13 If the P resident signed the bill, it w ould becom e law notw ithstanding the ad journm ent of C ongress Edwards v United States, 286 U .S 482 (1932), La Abra Silver Mining Co v. United States, 175 U S 4 2 3 (1899)
141 bill is pocket vetoed, the Congress can simply reenact it when it returns to session. See The Pocket Veto Case, 279 U .S. at 679 n.6. The President, on the other hand, in the absence o f a pocket veto would have no means of preventing C ongress from presenting bills to him on the last day before an adjournment, thus preventing him from exercising his veto. And when the bill became law, the President would have no way to repeal it without affirmative action by a majority of both Houses o f Congress. T h e interest in ensuring that both the President and C ongress play their assigned roles in lawmaking is thus better served by the presence of the pocket veto than by its absence. Because the pocket veto does not provide for congressional override, it serves the interest in mutuality only when, at the expiration of the ten-day period (Sundays excepted) following presidential receipt of a bill: (1) Congress has adjourned sine die at the end o f its final session and has thereby terminated its legislative existence; or (2) C ongress has taken some other adjournment and has failed to provide any effective means by which the President may return a bill during the adjournment. O nly in these situations is the President unable to exercise his veto power by returning the bill with objections. In all other situations, the interest in m utuality is served by an ordinary veto subject to congressional override and is disserved by a pocket veto.
B. Prompt Reconsideration
The pocket veto also serves the interest in ensuring the possibility of prompt congressional reconsideration o f a bill following a presidential veto. In The Pocket Veto C ase, for example, the C ourt was concerned that delivery to a congressional agent during an intrasession adjournment would permit the agent to hold the disapproved bill fo r “ days, weeks or perhaps months, . . . keeping the bill in the m eantim e in a state of suspended animation . . . and necessarily causing delay in its reconsideration which the Constitution evidently intended to avoid.” 279 U .S . at 684. In Wright v. United States, 302 U .S. 583, the Court em phasized that a three-day recess of one House did not pose the dangers of “ undue delay,” identified in The Pocket Veto Case, because a mere “ brief,” “ sh o rt,” and “ tem porary” recess, extending for a “ very limited time only,” did not create the danger that a vetoed bill “ would not be subject to reasonably prom pt action by the House.” Id. at 595. And Kennedy v. Sampson recognized that “ long d elay ” was one of the hazards perceived in The Pocket Veto Case. 511 F.2d at 440. The interest in prompt reconsideration does not lend itself to precise quan tification. The adjournment at issue in The Pocket Veto Case lasted roughly five m onths; the adjournm ents at issue in Wright v. United States and Kennedy v. Sampson were of three and five days, respectively. Between these figures lies a broad area of uncertainty, in w hich the argum ent favoring the validity of a pocket veto becom es stronger as the period of adjournment increases. The interest in prom pt reconsideration will sometimes reinforce the interest in m utuality. A final adjournment o f Congress, in which the interest in mutuality is
142 strongly im plicated, will typically continue for a substantial period of time. Similarly, non-final adjournments in which Congress has appointed agents to receive presidential m essages, in which the interest in m utuality is not served by a pocket veto, are also typically of brief duration. On the other hand, non-final adjournments can extend for a considerable period of time and final adjournments can be very brief. In some cases, therefore, the interest in mutuality and the interest in prompt reconsideration will conflict.
C. Public Certainty
The third interest underlying the pocket veto provision is that of ensuring that the public is reliably informed about the process of lawmaking. In The Pocket Veto Case, the Court said that return of a disapproved bill to a congressional agent during an intersession adjournm ent would not provide “ certain knowledge on the part of the public as to whether it had or had not been seasonably delivered” because return of the bill would not be “ a matter of official record definitely shown by the journal of the House itself, giving public, certain and prompt knowledge as to the status of the bill. . . . ” 279 U .S. at 684-85. In Wright v. United States, the Court recognized that the pocket veto provision safeguarded against “ [t]he prospect that . . . the public may not be promptly and properly informed of the return of the bill with the President’s objections, or that the bill would not be properly safeguarded or duly recorded upon the journal of the H ouse,” although in the context of a three-day recess of one House only, the Court found this danger was “ wholly chimerical.” 302 U .S. at 595. And Kennedy v. Sampson recognized that the pocket veto provision was designed, in part, to ensure public certainty. See 511 F.2d at 440. The interest in public certainty seems to have factual and legal components. Factually, there is a strong interest in guaranteeing that the public has full knowledge of the President’s decision to veto a bill, and of the reasons for that decision as stated in the President’s objections. Legally, there is a strong interest in providing the public with certain knowledge whether the bill has becom e law. Obviously, segm ents of the public affected by a bill will often have a compelling interest in knowing whether the bill has become a law so that they may structure their actions in order to comply with the law or to obtain the benefits provided thereunder. As a practical matter, as the Court observed in Kennedy v. Sampson, the interest in obtaining the facts of a veto will usually be well served by the availability of “ [m ]odem methods of com m unication,” 511 F.2d at 441. Presi dential vetoes are widely reported in the press. The problem of legal uncertainty, on the other hand, remains pressing today. The need for legal certainty requires hard-and-fast rules that can easily and clearly be applied in individual cases. In this respect, the interest in public certainty stands in tension with the interest in prompt reconsideration since the latter interest increases incrementally in
143 strength with the length of an adjournm ent and is not susceptible to resolution through a clear, non-arbitrary ru le .14 The interest in public certainty reinforces the interest in mutuality in the case of final adjournm ents. In the case of non-final adjournments, the interest in public certainty might occasionally conflict with the interest in mutuality when there are legal questions regarding whether Congress has designated an agent to receive presidential messages during its adjournment. IV. The above analysis provides som e guidance as to the validity of pocket vetoes in a variety of recurring situations. A. Final Adjournments A pocket veto is certainly appropriate after the final adjournment of a Con gress. If it were not, there would be a serious question as to whether the pocket veto provision o f the Constitution had any meaning at all. That pocket vetoes are appropriate after a final adjournment was settled in The Pocket Veto C ase15 and has not been questioned by the subsequent decisions which narrowed The Pocket Veto Case in other respects. Moreover, in the context of a final adjournment of Congress all three interests served by the pocket veto provision suggest the appropriateness of a pocket veto. W ithout a pocket veto, the President could be denied his proper role in lawmaking by the presentation of numerous bills towards the end of the final session of Congress (interest in mutuality); final adjournm ents are often lengthy (interest in prompt reconsideration); and a rule providing for pocket vetoes in this situation is capable of hard-and-fast applica tion (interest in public certainty). Accordingly, the President m ay pocket veto bills after the final adjournment of a Congress without fear that his veto will be ineffective and the bills will become law. B. Intersession Adjournments We also believe the President may pocket veto bills during intersession adjournm ents. Adjournments between sessions are typically accomplished by means of concurrent resolutions16 adjourning the session sine d ie .17 The Presi 14 Judge T am m ’s distin ctio n between intrasession and intersession adjournm ents in Kennedy v. Sampson appears based, largely, on the need for hard-and-fast rules in this area. A sh arp distinction betw een intersession and intrasession adjournm ents w ould be inappropriate if the only criterion w ere the length o f an adjournm ent, since w hile intersession ad jo u rn m en ts are also generally relatively lengthy and intrasession adjournm ents relatively brief, this rs not alw ays the case M “ It is also co n ced ed , as w e understand, that the P resident is necessarily prevented from returning a bill by a final adjournm ent o f th e C o n g ress, since su c h adjournm ent term inates the legislative existence o f the C o n g ress and m akes it im possible to return th e bill to e ith e r H ouse.” 279 U .S at 681. Ih A co ncurrent resolution is required by A rticle I, § 5 , clause 4 , pro h ib itin g eith er H o u se from adjourning for m ore than three days w ithout the consent o f the other. See note 7 supra 17 A sine die ad jo u rn m en t is necessary because any adjournm ent to a date certain w ithin the session w ould not term inate the sessio n . In The Pocket Veto C ase Congress adjourned its first session even though the Senate adjourned to a date certain w ithin the session rather th a n sine die. T h is w as because o f an unusual situatton in w hich the Senate agreed to return to p erform non-legislative b usiness, th e consideration o f certain articles o f im peachm ent A fter m eeting to co n sid e r these artic le s, the S en ate, sitting as a court o f im peach m en t, voted to adjourn sine die See note 6 and accom panying te x t, supra.
144 dent’s pocket veto of H .R . 4353 on December 29, 1981, occurred during a sine die adjournm ent of the first session o f the 97th C ongress, beginning D e cember 16, 1981.18 By joint resolution, Congress agreed to reconvene for the second session on January 2 5 ,1 9 8 2 .19 In this section we confirm the advice given orally by this Office that the President was authorized to pocket veto H.R. 4353. The Pocket Veto Case stands at least for the proposition that a pocket veto is appropriate during an intersession adjournment. The Court in Wright, dis tinguishing The Pocket Veto Case, strongly implied that the case retained force in the context o f intersession adjournments:
However real th[ej dangers [envisaged by the Court in The Pocket Veto Case] may be when Congress has adjourned and the mem bers of its Houses have dispersed at the end of a session, the situation with which the Court was dealing, they appear to be illusory when there is a mere tem porary recess.
302 U .S. at 595. Similarly, the court in Kennedy v. Sampson limited its holding to intrasession adjournments and sharply distinguished these from intersession adjournments. Although we believe, and have frequently advised, that the pocket veto is appropriate in the context of intersession adjournments, we recognize that objections could be made to this conclusion based on an analysis of the interests underlying the pocket veto provision. The interest in mutuality is not particularly strong in the case of a pocket veto during an intersession adjournment, at least so long as the House of origin has appointed an agent to receive presidential messages. The President could veto the bill and return it, together with his objections, to the agent who would lay the m atter before the House for recon sideration upon its return. Thus the President would not be deprived of his power to veto legislation. A pocket veto, on the other hand, arguably disserves the interest in m utuality in this circumstance because it would deprive Congress of its power to override. The interest in prompt reconsideration is served by a pocket veto during lengthy intersession adjournments but not by pocket vetoes during brief intersession adjournments. Thus, pocket vetoes during brief intersession adjournments are somewhat more vulnerable than those during lengthy interses sion adjournm ents. However, we believe that the interest in public certainty justifies a hard-and-fast rule that pocket vetoes are always appropriate during intersession adjournm ents. See note 14 supra. The alternative of a rule based upon the length of an adjournment lacks any constitutional basis. The alternative of a rule that intersession pocket vetoes are not appropriate could seriously fru stra te th e in terest in p ro m p t re c o n sid e ra tio n in the case o f len g th y adjournm ents.
'* See S . C on. R es 57, 97th C ong -. 1st Sess , 127 C ong. R ec. S15631 (daily ed Dec 16. 1981) 19 See H J . Res 37 7 , 97lh C ong , 1st Sess , 127 C ong. Rec. H 9638 (daily ed Dec 16, 1981).
145 It is our opinion, therefore, that the President may validly pocket veto bills during all intersession adjournm ents.20 Accordingly, the President’s pocket veto of H .R . 4353 was effective and prevented the bill from becoming law.
C. Intrasession Adjournments
Any decision to pocket veto legislation during an intrasession adjournment would in all probability be met with an im m ediate court challenge in which the prospects that the Executive’s position will be sustained are uncertain at best. Wright v. U nited States rejected the contention that the President could pocket veto legislation during a three-day intrasession adjournment of the House of origin. A lthough the Wright decision contained language that could be read as lim ited to adjournm ents of three days or less, for which the consent of the other H ouse is not required under A rticle I, § 5, clause 4, the subsequent decision in Kennedy went further. Kennedy involved, on its facts, a recess of both Houses for w hich the consent of the other House was required. Moreover, the court in Kennedy clearly stated that pocket vetoes are never appropriate during intrases sion adjournm ents. The rule adopted by the C ourt in Kennedy may best be understood by exam ining the interests underlying the pocket veto provision. The interest in m utuality is disserved by the pocket veto during intrasession adjournments because the President is not disabled from returning a bill with his objections so long as the H ouse of origin has em powered an agent to receive presidential m essages. The interest in prom pt reconsideration is served only during lengthy intrasession adjournm ents, which have always been uncommon and which have becom e increasingly rare in recent years. The interest in public certainty would be served by a hard-and-fast rule perm itting pocket vetoes during all adjourn ments of the H ouse of origin w hich require the consent of the other House under A rticle I, § 5, clause 4; but the Kennedy and Wright decisions indicate that the courts are m ore likely to endorse a flat rule against any pocket vetoes during intrasession adjournments. It could plausibly be argued, however, that the interest in public certainty is equally served by a rule permitting pocket vetoes during adjournm ents lasting m ore than a set period of time. For example, the interest in public certainty would be served by a rule permitting pocket vetoes during adjournm ents of ten days or more. A pocket veto during an intrasession adjournment would be directly contrary to the language in Kennedy and inconsistent with at least the spirit of Wright. The interests underlying the pocket veto provision do not clearly resolve the question w hether pocket vetoes are appropriate during intrasession adjournments. This is not to say that a pocket veto should never be considered during a session. There is room to argue that Kennedy was an erroneous decision and that the broad dicta in
20 P ocket vetoes d u rin g intersession adjournm ents are, we b eliev e, valid w hether o r not the H ouse o f o rigin has ap p o in ted an agent to receive presidential m essages It appears that the H ouse o f Representatives d id not appoint such an agent du rin g the intersession ad jo u rn m en t o f the 97th C ongress
146 Wright should not be followed today. It must be recognized, however, that such an argument would face an uphill battle in the courts. We would recommend that the President not pocket veto legislation during intrasession adjournm ents unless he is willing to risk an almost certain court challenge in which he may not be successful. If the President does wish to exercise his pocket veto, he may wish to choose a bill which would not appreciably damage his program if it were enacted into law.21 We would advise that the President not pocket veto bills unless the intrasession adjournm ent involved extends for a significant period of time— ten days at least— and that both Houses be in adjournment on the date set for return of the bill.
D. One House Only Adjourns Sine Die
An intermediate case is that in which one House adjourns sine die and the other remains in session.22 Read broadly, Wright v. United States would preclude a pocket veto since that case stated that the adjournment of one House only does not trigger the pocket veto provision. See 302 U .S. at 587-88. This clearly was not the basis for the C o u rt’s decision, however, since the Court expressly reserved the question whether a one-House adjournment lasting for more than three days would “ prevent” the return of a vetoed bill. Id. at 598. See Kennedy v. Sampson at 440 n.29. We are of the opinion that a pocket veto would be effective when the House of origin has adjourned sine die at the end of a final session. A similar conclusion is appropriate when the House o f origin has remained in session and the other House has adjourned sine die at the end of its final session, since it would be impossible in this situation for Congress as a whole to override the President’s veto. Somewhat more difficult is the situation in which the House of origin has adjourned sine die at the end of the first session and the other House has remained in session. This Office has advised that either a pocket veto or a return veto would be appropriate in this situation.23 However, a pocket veto would probably be ineffective when the House of origin remains in session and the other House adjourns sine die at the end of the first session.
V. Miscellaneous Problems
Finally, we address certain miscellaneous problems which have arisen in connection with the pocket veto.
A. Procedure in Uncertainty
The President is placed in a somewhat difficult position when he wishes to veto a bill but is uncertain whether or not he has authority to exercise the pocket veto.
21 H R. 4353, w hich the P resident pocket vetoed on D ecem ber 29, 1981, is an exam ple o fa g o o d test case. A s the President noted in his veto statem ent, the m easure “ w ould benefit the creditors o f a single large asset b an k ru p tcy ” and was in effect an “ effort to co n fe r special relief m the guise of general legislation." 17 W eekly Com p. Pres D oc. 1429 (1981) 22 D uring the first session o f th e 96th C ongress, for exam ple, the Senate adjourned sine die: the H ouse d id not adjourn sine die but held pro form a sessions up to and including the date it reconvened for the second sessio n . 23 M em orandum for H onorable Lloyd N Cutler, Jan 2. 1980
147 If the President attem pts a pocket veto, there is always the danger that his action will be ineffective and that the bill will be held to have become law without his signature. On the other hand, if h e attempts to return the bill with his objections to the House of origin, there is the danger that his actions will undermine the argum ent, which he might wish to make in a future case, that he was “ prevented” from returning the bill within the meaning of the pocket veto provision.24 This dilem m a is not fully resolvable; difficulties will persist so long as the contours of the pocket veto pow er remain indistinct. We believe that the President would be justified in taking eith er of two courses of action. First, he could establish a policy of pocket vetoing all bills during final adjournments, interses sion adjournm ents, and intrasession adjournments lasting for a set period of time or longer. This policy would have the virtue of consistency and would frame the constitutional issues sharply for a court challenge. On the other hand, it must be recognized that this policy would pose serious litigation risks if the policy was to pocket veto bills during intrasession adjournm ents of relatively brief duration. Second, the President could adopt a case-by-case approach to the problem, taking account of the degree o f litigation risk and of the importance to the President’s program that the bill not be enacted. If the bill is unimportant to the President’s program and the chances of success in court appear high, the better course may be to pocket veto.25 If the bill is im portant or the chances of success appear low, the better course may be to return the bill with objections which explicitly state that the President believes he would be within his right to pocket veto the legislation.
B. Recess Appointments
A rticle II, § 2, clause 3 of the Constitution provides: “ The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting C om m issions which shall expire at the end of their next Session.” The President’s power to make recess appointm ents has been the subject of some uncertainty and disagreement w ith Congress in recent years. The recess appoint m ent and pocket veto powers are related because of the similarity between the concepts of a “ recess” of the Senate in which the President can make temporary appointm ents w ithout obtaining the advice and consent of the Senate and an “ adjournm ent” o f the House o f origin w hich, if it prevents the return of a bill with objections, will permit th e President to prevent the bill from becoming law without subm itting his veto to a possible congressional override. Practice under
24 A d ifferent problem m ay a n se when th e P resident w ishes to en su re that a bill w hich has been presented to him less than ten days (S undays excepted) b efo re an adjournm ent b eco m es law. If the President fails to sign the b ill, there is no g u aran tee that the bill w ill autom atically becom e law upon the expiration o f the tim e period since it may have been pocket vetoed T h is problem does n o t pose a serious d ilem m a, however, for the President can sim ply sign the bill w ithin the ten-day p erio d , thus e n su rin g that the bill becom es law w h ile p reserving his argum ents under the pocket veto provision. It has long been se ttle d that the P resident m ay sign legislation after C ongress has adjourned See note 13, supra 25 To avoid an im plication that he has exercised a return rather than a pocket veto, the President should not deliv er a m essage to the H ouse o f origin stating h is objections if he intends to exercise the pocket veto power.
148 the pocket veto provision may therefore have some bearing on an interpretation of the scope of the recess appointm ent power. There are sound reasons to believe that the President has authority to make recess appointments in situations in which a pocket veto might well be inap propriate. First, even if “ recess” and “ adjournm ent” have the same meaning in the Constitution, this fact would not equate the pocket veto and recess appoint ment powers. The decisions holding that the President could not pocket veto bills during brief intrasession adjournments were not premised on the notion that these were not “ adjournments” in the constitutional sense; rather, they were bottomed on the theory that, although they were adjournments, they did not “ prevent” the return of disapproved bills. Second, it is by no means clear that “ adjournm ent” and “ recess” do have the same meaning in the Constitution. In common parlance, the word “ recess” connotes a brief break in continuity, whereas an “ adjournm ent” may include relatively brief periods but will more typically refer to a longer or indefinite suspension of activity. It is therefore possible that a very brief suspension will amount to a “ recess” but not an “ adjournment.” Despite the above analysis, the decisions in Wright v. United States and Kennedy v. Sampson counsel caution in making recess appointments. This Office has generally advised that the President not make recess appointments, if possible, when the break in continuity of the Senate is very brief.
C. Nominations
You have expressed concern that the President may prejudice his ability to pocket veto legislation if he sends nominations to the Senate during an interses sion adjournm ent. We assume that a nomination would be delivered to the Secretary of the Senate, who is typically designated by that body to receive messages from the President during adjournm ents.26 The sending of a nomination to the Senate would not, we believe, seriously prejudice the President’s stand on the pocket veto. Simply sending over a nomination has no legal significance unless and until the Senate takes action evidencing its understanding that a nomination has been validly made. At most, it would evidence the President’s understanding that the Secretary of the Senate is indeed authorized to receive presidential messages— a question which is not seriously in doubt in light of the Wright and Kennedy decisions and the explicit authorization to this effect ty p ically approved by the Senate. However, we can perceive no strong reason to send nominations to the Senate during intersession adjournments.
Theodore B. O lson
Assistant Attorney General Office c f Legal Counsel
26 See, e.g ., 127 C ong Rec S 15632 (daily ed. D ec. 16, 1981) T h e Secretary o f the Senate m ay have inherent authority even in the absence of specific authonzation to receive presidential m essages See Wright v United States, 302 U .S at 599 (S tone, J , dissenting in part)