Wiki’s article on the pocket veto only mentions conflicting court cases without examining them.
My first thought is that if the Senate is in session sufficiently to block recess appointments, then it is in session sufficiently to call for a veto override. But my second thought is that appropriations bills have to start with the House, so the House’s status is what’s controlling. But then what official status does the House clerk have?
Can we just talk about the law and who is in session and who needs to be in session and pocket veto history in general rather than debating the contents of the bill?
The question seems to focus on whether Congress has adjourned sine die. Each two year Congress (we’re currently in the 110th Congress) is divided into two sessions. Between each session, both the House and the Senate must agree to a concurrent resolution establishing a period of recess or adjournment for longer than three days, as required by the Constitution. An adjournment sine die marks the period at which the 1st Session of a Congress (in the first year of the Congress) or the whole Congress (as in the second year, which marks the end of the last period of work before a new membership is sworn in and a new Congress begins) formally ends each session.
This year, Congress did something rather unusual, which, to my knowledge, hasn’t been done before. I can’t link to a temporary file, but here’s what the resolution says:
Yeah, this is very complicated, and everyone has something that they can pin their hat to. Here’s what I’d guess would be the two interpretations:
Congress’ view: the resolution provides for Congress to be called back into session with the agreement of all four leaders of Congress. The Senate is actually in recess with pro forma sessions every three days until January 3, so the Senate is still able to receive messages. If the Senate is actually meeting in pro forma sessions (which consist of the Senate being gaveled to order and then immediately recessed), and the House can be called back with the agreement of leadership, it is unreasonable for the President to say that Congress is unable to meet in accordance with what the Constitution foresaw as the reason for a pocket veto.
White House view: While the Senate may be in short periods of recess, the House has actually adjourned sine die on December 19. If one house has actually adjourned, regardless of what conditions there may be, one house is adjourned and having an agent receive messages for the House isn’t what the Constitution intended when the pocket veto was designed for situations when Congress isn’t able to act on vetoed bills.
The Constituional background, for those not familiar, is outlined in Article I, Section 7 of the Constitution. Loosely summarized, for a measure to become law, it must be passed by both houses of Congress (by simple majority) and transmitted to the President. He then has three options: to sign it into law, to return it to Congress with a statement of his objections (i.e., to veto it), or to hang onto it without either signing or vetoing. If he hangs onto it for ten days while Congress is sitting, it becomes law. But if they send him a bill and then adjourn, they’ve prevented him from sending them a veto message, so holding a bill “in his pocket” at that time is tantamount to vetoing it – hence the term “pocket veto.”
Since the purpose of the “pocket veto” is to have a means whereby the President can refuse to put a law in place when he is prevented by the adjournment of Congress from sending them a veto message (and Constitutionally his saying “I veto this bill” is not enough; he has to transmit that message to Congress with his objections to it), and further, there is a specified ten-day limit (not counting Sundays) on holding a law before it becomes law without his signature or is pocket-vetoed, and since Congress has established a provision by which they will reconvene “if…the public interest shall warrant it” (which would, I presume, include receiving veto messages), it would be my personal opinion that the President cannot use the pocket veto. Of course, my opinion and $6.95 will get you a paperback copy of the Constitution at any bookstore.
It might be interesting to see what the SDSAB jurisconsults have to say.
This situation is not without precedent. Disputes about the “pocket veto” have arisen before, and twice have made it to the Supreme Court of the United States. Let’s start by looking at these two cases.
In The Pocket Veto Case, 279 U.S. 655 (1929), the Supreme Court determined that the expiration of the ten day period for Presidential approval of a passed bill during the adjournment sine die of both houses of Congress (pursuant to joint resolution as required by Article I, Section 5) resulted in the negation of the bill. In the case, the Congress had passed a bill which endeavored to allow certain Indian tribes in Washington state to present claims to the Court of Claims. After the bill was passed, and before the ten days allowed under the Constitution expired, the Congress adjourned for the intersession break (the period between the first session of each Congress and the second session; see Article I, Section 4). The bill was not signed into law by the President, nor returned by him to the Senate, where it had originated. Subsequently, a certain tribe to which the bill would have applied attempted to prosecute a claim; the government demurred citing the fact that the bill had not been enrolled as a law.
The case is interesting not only because it presented a totally new point of law regarding the veto power, but also because there was an impressive amicus curiae brief from Representative Hatton Sumners, who was a member of the Judiciary Committee of the House of Representatives, arguing in favor of a determination that the bill should be considered to have become law. This ends up being referred to later by the Court in a subsequent case. However, in this matter, the Court refused to accept the arguments of Rep. Sumner.
In its holding, the Court basically stated: 1) “Adjournment” means any adjournment, not just a “final” adjournment at the end of the Congress (which happens at the end of the last session of every biennial Congress). 2) The President cannot “return” a bill with his objections to a “House” unless that House is in session. 3) Congress had on only one occasion attempted to designate a procedure for receiving returned bills from the President while not in session, and that effort (during 1862) had failed in large measure because of questions about its constitutionality. 4) Any such measure would be constitutionally insufficient (this part is really obiter dictum, that is, unnecessary to the holding). 5) Prior practice of Congress and the President over the course of over 100 years had been to consider any measure not signed or returned by the President during an intersession break negated (the Court notes that some 119 such cases had occurred, and in no case until the present one had there been any attempt to consider such bills valid laws).
Perhaps the most important language of the unanimous opinion of the Court is:
Thus, the Court seemed to be most importantly focused on the impact of the adjournment on the ability of the President to act to either approve or return the bill for consideration by Congress.
The Supreme Court in the second case seems to have seized upon this narrow focus. In Wright v. United States, 302 U.S. 583 (1938), the Court upheld a veto by President Roosevelt when the return was accomplished on a day that the Senate (the originating house) was adjourned for three days. In the case, the bill in question attempted to revive a claim by one Mr. Wright and allow him to pursue it before the Court of Claims. The President returned the bill with a list of his objections to the Senate, which, at the time of the return, had adjourned for three days; the House of Representatives was still in session. The matter was referred to the Senate’s Committee on Claims when they returned to session; it died there without further effort. When Mr. Wright attempted to petition the Court of Claims pursuant to the putative authority of the bill, the Government opposed the petition on the ground that the bill had not become law.
Now, on the face of it, language in the opinion of The Pocket Veto Case would appear to indicate that the bill must have been negated, even without the action of the President. It’s not certain why the Government did not simply argue that the return was ineffective and that the bill had died pursuant to the holding in the aforementioned case. But instead, the Government took the position that the return of the President (an actual veto, not a “pocket” veto) was valid as such. To arrive at this determination, the Court would have to accept that, had the President NOT signed the bill, it would have become law, pursuant to the provisions of Article I, Section 7. Indeed, the petitioner, to prevail, had to convince the Court that, while the intrasession adjournment did not deprive the Congress of the ability to accept the return of the bill by the President, nevertheless the attempt by the President to do just that had failed because the Senate was not actually in session. This particular effort at logical legerdemain is the sort of thing that makes one wonder how stupid lawyers can really be at times. But the Supreme Court apparently felt it of vital importance to take the case up, perhaps because they wanted to correct by implication what they saw as a flaw in the ruling in The Pocket Veto Case.
So, in its majority (6/2 - 0; Cardozo taking no part) opinion, Chief Justice Hughes reasoned: 1) “Congress” did not adjourn, only the Senate; thus, the final clause of the veto language of the Constitution did not apply. 2) The language of the Constitution does not preclude return of a bill with objections by the president to the originating house during a temporary recess of a few days by that house. 3) The Pocket Veto Case holding should not be construed to require otherwise, because the dangers observed by the opinion in that case do not apply when there is a mere temporary recess by one of the two houses for a very short period of time. 4) This is consistent with the purpose of the provisions of the Constitution, that on the first hand, the President be allowed sufficient time to discharge his duty of either signing the bill or returning it with his objections, and on the second hand, that the Congress immediately take up the consideration of those objections so that the status of the bill is not placed into some sort of suspended animation.
Now, having adopted this line of reasoning, the Court then explained the practical concerns it had: if the final clause was applicable, then the ability of the Congress to deal with a veto could potentially be frustrated by the decision of the originating house to recess temporarily, thus resulting in a “pocket veto” which allows no ability to reconsider by the Congress and over-ride. By contrast, if the final clause was not applicable, then the bill would become law unless the President cut short his consideration to less than the allowed ten days, and, indeed, the house of origin could enforce the enactment of the bill by suddenly recessing at some point on day seven, for the period of three days. Pleased with this explanation of the dangers inherent in simply applying the holding of The Pocket Veto Case, the majority opinion stated:
Now, the apparent stupidity of all this was not lost upon the whole court. In a well-reasoned partial dissent, partial concurrence, Justice Stone took the Court to task. Joined by Justice Brandeis, he simplified the case: the bill didn’t become law because the holding in The Pocket Veto Case said it didn’t. Justice Stone noted that neither house of Congress had attempted in the intervening nine years to identify an “agent” for receipt of returned bills during recess. Justice Stone noted that the holding in the case at hand didn’t appear to identify any particular distinguishing aspect of the case from that which existed in the prior case. So, the issue of what exactly would be a valid “pocket” veto and what would be a valid enactment into law through inaction of the President was entirely undefined as a result of the Court’s determination. His opinion (302 U.S. 583, 598) is an instructive read in analyzing what can happen when the Court falls in love with a legal concept at the expense of a more simple approach to resolution of the case.
And, indeed, it can be seen that the Court’s language in Wright has been used to frustrate the purpose of the Constitution. In a series of cases spawned during the Ford administration, the D.C. Circuit Court of Appeals used the holding in Wright to justify claims that the President was precluded from exercising a “pocket” veto over bills which had their ten day review period expire during a) a 5-day adjournment, b) a 32-day adjournment, and c) an intersession adjournment. The first case spawned Kennedy v. Sampson, 511 F.2d 430 (D.C. Cir. 1974), in which the appellate court held that President Ford’s attempted “pocket” veto of legislation failed because the houses of Congress had appointed agents to receive returns of vetoed bills during a concurrent 5-day recess. The result was not appealed to the Supreme Court. The latter two cases spawned Kennedy v. Jones, Civil Action No. 74-194 (D.D.C.), which were resolved by decree when the President agreed not to use the “pocket” veto during any intra- or intersession recess, provided that the house of origin had designated an agent for return of vetoed bills.
This agreement was repudiated by President Reagan during a dispute with Congress in 1983 over efforts to provide continued military aid to El Salvador. Congress attempted to attach provisions to the funding bill requiring a certification of efforts by El Salvador to improve human rights; the President refused to sign or return the bill, the ten day period having expired during an intersession adjournment, the President considered it negated and it was not published in the statues at large. Various members of Congress filed suit against the Archivist, asserting that the attempted “pocket” veto was invalid. The District Court granted summary judgment in favor of the defendants, upholding the veto (Barnes v. Carmen, 582 F.Supp. 163 (DC 1984)), but the Court of Appeals overturned, again citing Wright (Barnes v. Kline, 759 F.2d 21 (1984)). However, when the case got to the Supreme Court, the putative law itself by it’s own provisions had “expired”, and in the opinion of the Supreme Court, made the whole matter moot. However, the Court then ordered the holding of the Court of Appeals vacated, and remanded it for dismissal (Burke v. Barnes, 479 U.S. 361 (1987)). This means that the holding of the Court of Appeals no longer exists in that matter, which may be interpreted as an indication that the Supreme Court did not agree with the holding.
Where does all this leave us? We don’t know. As forseen by Justice Stone, the very clear holding of The Pocket Veto Case has been muddied by the decision in Wright. The attempt by the Court in Wright to limit that holding to the very specific situation presented has been ignored by the D.C. Circuit on two separate occasions. So we are left with an open question on some important points:
Can the houses of Congress appoint agents to receive returns of bills from the President during intrasession and/or intersession recesses, thereby forcing the President to return a bill with objections (preventing the “pocket” veto)?
Can the “pocket” veto be exercised during any intersession or intrasession adjournment (that is, to what extent is the decision in The Pocket Veto Case good law)?
Where the Senate is in session through the artifice of short sessions every couple days, is “Congress” in “adjournment?”
I predict that the issue will be mooted by the passage of an emergency bill replicating the effect of the one in question without the possibility of claims against Iraq. So, most likely, we won’t see any litigation on this issue. But it does offer an interesting platform for discussion, because there certainly could have been a somewhat more major fight of this nature develop. If, in fact, the whole point of the decision in Wright was to force Presidents to complete a veto through an actual return with objections anytime Congress is in either intersession or intrasession recess, then the Court was taking a very pro-Congress viewpoint the veto matter. On the other hand, if the point of the Court was to simply say, “Look, folks, an ‘adjournment’ for three days recess isn’t what they really meant by the words in the final clause of Paragraph 2,” then we are left with wondering what exactly is sufficient adjournment for the purpose of activating a potential “pocket” veto? Does it require that both houses be adjourned? Does it require a certain number of days recess to be sufficient? Can Congress comply with Art. I, Sec. 4 and stay in session by artifice through the day that the next session starts, and thus prevent any “pocket” veto from happening prior to the end of the biennial Congress? Will the Court ever go back to the simple formulation espoused by the Court in The Pocket Veto Case, and, indeed, should it?
Even if that happens, couldn’t someone still bring suit against Iraq though, claiming that the first bill is actually law as it wasn’t properly vetoed, thus forcing the Court to decide if the Pocket Veto was valid or not?
And thanks for the last post, interesting reading.
Well, the holding in Kennedy v. Sampson is still valid within the D.C. Circuit, but the fact that the attempt of the D.C. Circuit to apply Wright to the Reagan case was specifically vacated by the Supreme Court may well indicate to that Circuit that they need a different analysis. The Pocket Veto Case has dicta that says you can’t appoint an agent; Wright didn’t even require one. The cases from the Supreme Court, then, are in direct conflict, and the answer to your question is, who knows?
Surely the constitution meant for Congress to be out for some substantial period. I mean, surely, no one argues that when Congress adjourns for the evening, the President can pocket veto a bill at midnight.
But then again, the whole idea is arcane in this day and time of instant communications, but the appointing of an agent to receive the veto message still doesn’t satisfy the plain text or meaning of the constitution.
I think under the spirit of the constitution, Bush could return this bill with his objections, but under the plain text and original understanding, he cannot…
Or does it? The text says that a bill becomes law without signature “unless the Congress, by their Adjournment prevent its Return”. If an agent is appointed, then arguably no adjournment–whether for an hour, a day, or six months–prevents anything from being returned.
The intent of the pocket veto, it seems clear, is to prevent bills from becoming law on a technicality because the President wanted to veto them and return them to Congress but couldn’t (because of adjournment). As long as that can’t happen, I hold that the pocket veto shouldn’t apply.
However, by the text of the adjournment resolution, the House is currently adjourned sine die. The appointment of an agent doesn’t change the fact that the House is now adjourned until January. Whether an agent is appointed or not, the House could only return if both the Democratic and Republican Leaders agree that the House should reconvene before that, and regardless of whether that is likely or unlikely to happen, the fact remains that one house of Congress has already agreed to adjourn for a significant period of time, and the appointment of an agent doesn’t change that fact at all.
IMHO, I think it is implicit in the constitution that a house of congress not only be able to receive the veto message, but be able to act upon it by being in session.
Also, the constitution seems pretty clear that an adjournment itself prevents the return of a veto message ("…by their adjournment prevent its Return.")
This is illogical. If Congress designates an agent to receive messages, then ipso facto it must believe that it is capable of acting on them. Otherwise, there is no reason to designate an agent.
If Congress is in fact incapable of acting on a veto message, then the President has nothing to lose by using a conventional veto instead of a pocket veto.
By using this double-barreled approach arguments as to whether one aspect was valid or invlaid are rendered somewhat pointless other than for intellectual interest. If the pocket veto is invalid in this case, then the normal veto is valid. If the normal veto is invalid, then the pocket veto is valid. There is no loophole in the practical veto exercise here, as both vetoes were claimed, only in the question of which form of veto authority applies under the circumstances. It’s still a legitimate veto either way.
Pelosi can claim that the pocket veto exercise is invalid all she wants, but only by affirming that the normal veto exercise was proper, as the bill WAS returned to “that House in which it shall have originated” in otherwise proper form. Point being that Congress cannot successfully construct circumstances to breach the presidential veto authority.
Yes, this is in a way the opposite side of the coin from the silly situation resulting from Wright. IF it turns out that the adjournment of the House of Representatives precludes the return of the bill, then the President has exercised a “pocket” veto. IF it turns out that the identification of an agent for purposes of receiving returned bills is sufficient to avoid the application of the final clause of Art. I, Sec. 7, Para. 2, then the President has vetoed the bill in actuality. Regardless of which way it goes, it’s a veto.
A Democratic congressional aide pointed out that a pocket veto cannot be overridden by Congress and allows Bush to distance himself from the rejection of a major Pentagon bill in a time of war.
Sheer bull. While a pocket veto cannot be overridden, there is nothing at all to prevent Congress from re-passing the exact same legislation when it reconvenes in January. In that sense it’s even easier to “override” a pocket veto than a regular veto, as the bill can be re-passed with simple majorities rather than two-thirds majorities. Of course, if they do that the president can then turn right around and re-veto the legislation.
The White House can claim that it is taking both actions, but that cannot stand as the actions are contradictory.
A pocket veto cannot be overturned; a returned bill can. The debate therefore is obviously not moot from an intellectual standpoint. (Congress may yet act in a way to make the practical case moot, but that’s different.)
If Pelosi affirms that the pocket veto was invalid, then she can schedule a vote to re-approve the bill. If the House and Senate do so, the bill becomes law with the objectionable provision intact. What does the White House do then?
The statement from the White House you cite is a meaningless act of having it both ways. It can’t have it both ways. That’s the entire point of this thread.
Good write-up on the cases, BTW. Most of the people screechign about the veto right now just want to cherry-pick Wright without considering the whole of the decision, or the context.
