Use of the "Pocket Veto" During Intersession Adjournments of Congress ( 1983 )

Use of the “Pocket Veto” During
Intersession Adjournments of Congress
Under the Constitution, the President has the power to veto an enrolled bill by “retum [ing] it,
with his objections to that House in which it shall have originated” within ten days of the b ill’s
being presented to the President. If, however, “the Congress by their Adjournment prevent [a
bill’s] Return” from the President, he may veto the bill simply by failing to sign it (i.e., by
“putting it in his pocket”). Congress may not override a pocket veto of a bill by a two-thirds
vote o f both Houses. Rather, the bill m ust be reintroduced and repassed by both Houses and
resubmitted to the President for his approval or veto.
The Supreme Court has held that Congress' appointment of an officer or agent to receive
returned bills from the President during an intersession adjournment does not preclude the
President from exercising a pocket veto. The Court has also held, however, that an ordinary
“return veto” was valid when the President returned a bill to the Secretary o f the Senate while
that House was in an intrasession adjournment of three days or less.
Despite lower court decisions questioning the continued validity o f the Supreme C ourt’s reason­
ing, use o f the pocket veto during intersession adjournments remains valid, whatever steps
Congress may take to receive returned bills during such and adjournment. The Supreme Court
has not decided whether the pocket veto can be exercised when one House, but not the other,
has adjourned sine die or for an intersession recess. Nor has that Court decided whether the
pocket veto can be used during intrasession adjournments lasting longer than three days.
December 19, 1983
M em orandum O p in io n for th e C o unsel to the P r e s id e n t
This memorializes our response to your questions whether the President
should use the “pocket veto” or the “return veto” during the present intersession
adjournment of Congress, and whether there have been any recent develop­
ments in the law that would affect the advice that we have previously given to
you on this subject.
Congress is currently in an intersession adjournment. The House and Senate
adjourned sine die on November 18, 1983. See H.R. Con. Res. 221, 129 Cong.
Rec. 34334 (1983). By separate resolution, the House and Senate agreed to
reconvene on January 23, 1984, for the second session of the 98th Congress.
See H.R.J. Res. 421, 129 Cong. Rec. 33123 (1983); id. at 34334.1 Before
1 C ongress traditionally ends a session by a sine die adjournm ent at a date specified by concurrent
resolution o f both Houses. The 20th A m endm ent to the C onstitution requires that C ongress assem ble each
year on January 3 “unless they shall by law appoint a different day.” (E m phasis added.) Thus, although
C ongress can adjourn by concurrent resolution, it must establish a return date other than January 3 by a law.
Therefore, the tim e for reassem bly is fixed, at the time o f adjournm ent, by a join t resolution which m ust be
presented to the President and which, when signed, has the force o f a law. A lthough a join t resolution
specifies the date for return, the adjournm ent by concurrent resolution is considered to be sine die.
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adjourning, the Senate authorized the Secretary of the Senate to receive mes­
sages from the President during the adjournment.2 Under House Rule III-5, the
House Clerk is authorized to receive such messages “at any time that the House
is not in session.”3 H.R. Con. Res. 221 also provides that both Houses may be
reconvened two days after Members are notified to reassemble by the Speaker
and the Majority Leader of the Senate “acting jointly,” after each consults with
the Minority Leader of the House and the Minority Leader of the Senate,
respectively, “whenever, in their opinion, the public interest shall warrant it.”
The practical consequence of a decision to exercise a pocket veto, instead of
a return veto, is significant. Congress may override a return veto by a two-
thirds vote of both Houses; a bill which is pocket vetoed must be reintroduced
and repassed by both Houses and resubmitted to the President for his approval
or veto. But if a court were to determine that an attempted pocket veto of a bill
was ineffective, that bill would become law because it had not been disap­
proved within ten days (Sundays excepted) after it was presented to the President.
The pocket veto power is very significant because it may often be much
more difficult for proponents o f legislation to start the legislative process anew,
repass legislation, and overcome a second Presidential veto than simply to
override the first veto. Time and inertia, extremely important factors in Ameri­
can political life, make the pocket veto a potent Presidential weapon. This is
particularly so given Congress’ increasing propensity to be unable to pass
much legislation except in the last few days of a congressional session. Be­
cause of this phenomenon, the pocket veto is available for use against a
disproportionate number of bills. For example, out of 146 bills (public laws
only) passed during the first session of the 97th Congress, 53 or more were
presented to the President within ten days (Sundays excepted) prior to or after
adjournment. Fifty-two of those bills were approved; one was disapproved by
pocket veto. Others presented within the ten days (Sundays excepted) may
have been signed in less than ten days. For the first sessions of 94th, 95th, and
96th Congresses, the corresponding figures are as follows:
94th Congress: 50 or more presented out of 207 passed (48
were signed, 2 were disapproved)
95th Congress: 13 or more presented out of 223 passed
96th Congress: 35 or more presented out of 187 passed
2 S en ato r B aker
ask[ed] unanim ous consent that d u ring the sine die adjournm ent o f the Senate, m essages from the
P resident o f the U nited States and th e H ouse o f R epresentatives may be received by the Secretary
o f th e S enate and appropriately referred , and that the V ice President, President pro tem pore, and
a cting P resident pro tem pore, may b e authorized to sign duly enrolled bills and join t resolutions.
W ith o u t o bjection, it w as so ordered. See A uthority for C ertain Action D uring Sine Die Adjournm ent and
U pon R econvening o f the Senate, 129 C ong. Rec. 34679 (1983).
3 T he H ouse R ule provides:
T he C lerk is authorized to receive m essages from the President and from the Senate at any time
th at the H ouse is not in session.
R ules o f the H ouse o f Representatives, R u le I1I-5.
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As a matter of political dynamics, even a slight increase or decrease in Presi­
dential power may have enormous impact on the President’s influence with
Congress. The pocket veto, therefore, should be appreciated as a tool of no
little significance.
Because of the short time typically available for analysis at the time that a
veto decision is required, and because of the adverse consequences of an
erroneous decision to pocket veto a bill rather than return it, with objections, to
the originating House, we have previously examined in rather comprehensive
fashion the legal issues associated with pocket vetoes in situations that are
likely to arise in the future.4 We have also carefully memorialized oral advice,
whenever we have given it, so that it may be readily available for review when
needed. We continue these practices in this memorandum, which reaffirms and
supplements the conclusions in our prior memoranda and confirms our oral
advice on this occasion.
We have consistently advised your Office on prior occasions that disap­
proval by inaction, the pocket veto, is the appropriate method of Presidential
disapproval after a sine die adjournment of the Congress, where the end of the
President’s constitutional period for approving or disapproving a bill falls
during the adjournment.5 That advice is fully applicable to the present adjourn­
ment. In our view, neither the designation of an agent to receive messages from
the President nor the provision for the possible recall of Members affects this
conclusion.
I. Background
Article I, § 7, cl. 2 of the Constitution provides in part:
Every Bill which shall have passed the House of Representa­
tives and the Senate, shall, before it becomes a Law, be pre­
sented 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 Objec­
tions, to the other House, by which it shall likewise be reconsid­
ered; 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
4 See “A pproval and D isapproval o f Bills by the President after Sine Die Adjournm ent o f the C o n g re ss/’ 6
Op. O .L.C. 846 (1982); “The Pocket Veto: H istorical Practice and Judicial Precedent I,” 6 Op. O .L.C . 134
(1982); “The Pocket Veto: H istorical Practice and Judicial Precedent II,’’ 6 Op. O.L.C. 150 (1982).
5 See the m em oranda cited supra note 4. See also M em orandum for the President from G riffin B. Bell,
A ttorney G eneral (M ay 13, 1977) (attaching M em orandum for the A ttorney General from John M. H arm on,
A cting A ssistant A ttorney G eneral, O ffice o f Legal Counsel (M ay 13, 1977)).
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as if he had signed it, unless the Congress by their Adjournment
p reven t its Return, in which Case it shall not be a Law.
(Emphasis added.) The highlighted phrase is commonly referred to as the
“Pocket Veto Clause” because it empowers the President to prevent a bill from
becoming law simply by placing it in his pocket, i.e., neither signing it nor
returning it with his objections to its House of origin. As noted above, the
functional difference between ordinary vetoes and pocket vetoes is that Con­
gress cannot override the latter.
In The P ocket Veto Case, 279 U.S. 655 (1929), the Supreme Court upheld
the use of a pocket veto during an intersession adjournment of the 69th
Congress. Justice Sanford’s opinion for the Court concluded that the word
“adjournment” was not limited to final adjournments of a Congress, but also
included interim adjournments. The determinative factor with regard to an
adjournment was whether it “prevented” the President from returning the bill
within the time allowed to the House in which it originated. In resolving this
question, the Court rejected the argument that a bill could be “returned” to the
House within the meaning of the constitutional provision if it was returned to
an officer or agent of the House to be held by him and delivered to the House
when it resumed its sittings at the next session. The Court stated:
under the constitutional mandate [the bill] is to be returned to
the ‘House’ when sitting in an organized capacity for the trans­
action of business, and having authority to receive the return,
enter the President’s objections on its journal, and proceed to
reconsider the bill; and . . . no return can be made to the House
when it is not in session as a collective body and its members are
dispersed.
Id. at 683.
Delivery of the bill to an officer or agent, even if authorized by Congress,
“would not comply with the constitutional mandate”:
The House, not having been in session when the bill was deliv­
ered 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
Constitution requires . . . . 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 legisla­
tive 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
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keeping the bill in the meantime in a state of suspended anima­
tion until the House resumes its sittings, with no certain knowl­
edge on the part of the public as to whether it had or had not been
seasonably delivered, and necessarily causing delay in its recon­
sideration 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 prompt
knowledge as to the status of the bill, but should enable Con­
gress to proceed immediately with its reconsideration; 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
some 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. at 684-85.
Use of the return veto during a brief, intrasession recess of only one House of
Congress was upheld in Wright v. United States, 302 U.S. 583 (1938).6 There,
the Supreme Court held that “Congress” had not adjourned when only one
House, the Senate, recessed for three days while the other was in session.7 The
Court rejected both legal and practical arguments that the President was “pre­
vented” from returning a bill because of the Senate’s recess:
In returning the bill to the Senate by delivery to its Secretary
during the recess there was no violation of any express require­
ment of the Constitution. . . .
Nor was there any practical difficulty in making the return of
a bill during the recess. The organization of the Senate contin­
ued 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 the session of Congress than in
presenting a bill to the President by sending it to the White
House in his temporary absence.
Id. at 589-90.
6 We do not believe that there is any constitutional significance to the designation o f a period when one or
both H ouses are not in session as a “recess” o r an “adjournm ent” for purposes o f determ ining w hether a return
or a pocket veto is appropriate. There are certain technical practices which are unique to the House or the
Senate and from which certain parliam entary consequences flow, but the difference does not depend on
duration o r the consent o f the other H ouse. In this memorandum, we use the terms “recess" and “adjourn*
m ent” to mean any p eriod in which C ongress or one H ouse is not in session. W e do not, how ever, characterize
the normal day-to-day o r weekend interruptions in the session o f C ongress as adjournm ents for pocket veto
purposes w ithin the m eaning o f the C onstitution.
7 The C onstitution provides that “neither House, during the Session o f C ongress, shall, w ithout the C onsent
o f the other, adjourn for more than three days." U.S. Const, art. I, § 5, cl. 4.
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The Court distinguished The Pocket Veto Case on the ground that the
dangers inherent in an intersession adjournment were not present in the context
of a brief intrasession recess of three days or less by only one House. Id. at 595.
As discussed more fully in Part II, below, the Court specifically declined to
address the question whether an intrasession adjournment of more than three
days, for which the consent o f both Houses is required pursuant to Article I,
§ 5, cl. 4, would prevent the return of a bill and thereby trigger the pocket veto
provision. Id. at 598. The holding of the case was therefore expressly limited to
the statement that the return veto could be used to prevent a bill from becoming
law “where the Congress has 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.” Id. at 598.
More recently, in Kennedy v. Sampson, 511 F.2d 430 (D.C. Cir. 1974), the
United States Court of Appeals for the District of Columbia Circuit considered
a challenge by a Senator to a pocket veto of a bill, for which he had voted,
during a brief intrasession adjournment (six days for one House, five for the
other) of both Houses. The district court granted summary judgment for the
plaintiff. The court of appeals affirmed, holding that the adjournment fell
within the rule of Wright v. U nited States, not The Pocket Veto Case. More­
over, the court’s opinion concluded that a pocket veto would have been
inappropriate even under the standards set forth in The Pocket Veto Case: “The
modem practice of Congress with respect to intrasession adjournments creates
neither of the hazards — long delay and public uncertainty — perceived in the
P ocket Veto Case." Id. at 440. According to the court, “intrasession adjourn­
ments of Congress have virtually never occasioned interruptions of the magni­
tude considered in the Pocket Veto Case,” id. at 441.; and “[m]odem methods of
communication” make the return of a disapproved bill to the appropriate
officer of the originating House a matter of public record accessible to every
citizen. Id. The court therefore broadly concluded that:
an intrasession adjournment of Congress does not prevent the
President from returning a bill which he disapproves so long as
appropriate arrangements are made for the receipt of presiden­
tial messages during the adjournment.
Id. at 437. See also id. at 442.
In a subsequent case, Kennedy v. Jones, 412 F. Supp. 353 (D.D.C. 1976), the
Government entered into a consent judgment with the plaintiff, who had
challenged the President’s pocket veto of two bills, one during an intersession
adjournment and the other during an intrasession election adjournment of
thirty-one days. The same day that judgment was entered, President Ford
announced that he would not invoke his pocket veto power during intrasession
or intersession recesses or adjournments if the originating House had specifi­
cally authorized an officer or other agent to receive returned bills during such
periods. That announcement was limited to President Ford’s intended use of
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the pocket veto.8 It did not purport to bind, and, in our view, could not have
bound, future Presidents. President Reagan has made no similar statement, nor
did President Carter during his Presidency.
n . Analysis
As we have stated in our prior memoranda, we are confident that the
President may pocket veto bills when the President’s constitutional period for
exercising his veto power ends during an intersession adjournment of Congress.
A. The Case Law
We believe that The Pocket Veto Case stands for the proposition that
intersession pocket vetoes are not only appropriate, but required. The Court in
Wright distinguished The Pocket Veto Case and strongly implied that the
earlier decision was still the law with respect to intersession adjournments:
However real th[e] dangers may be when Congress has ad­
journed and the members of its Houses have dispersed at the end
of a session — the situation with which the Court [in The Pocket
Veto Case ] was dealing — they appear to be illusory when there
is a mere temporary recess.
302 U.S. at 595.
Our conclusion that pocket vetoes are the appropriate veto mechanism
during an intersession adjournment is not inconsistent with the District of
Columbia Circuit’s holding in Kennedy v. Sampson, which involved intrasession
vetoes. To the extent that the district court’s judgment in Kennedy v. Jones is
inconsistent with our conclusion, we believe that it is incorrect and inconsistent
with both The Pocket Veto Case and Wright. In any event, Kennedy v. Jones is
not a meaningful precedent because of the nonadversarial nature of the out­
come. The court never did address the issues on the merits.
We therefore continue to read the case law to preserve the President’s power
to use the pocket veto during an intersession adjournment of Congress. We
believe that the holding in Wright regarding a recess of one House should be
limited to the facts of that case: a short (up to three day) intrasession recess or
adjournment of one House. For, just as Wright held that the return veto was
appropriate on those facts, The Pocket Veto Case held that the pocket veto was
required during a lengthy intersession adjournment by both Houses. Wright
neither expressly overruled The Pocket Veto Case nor challenged that Court’s
8 Follow ing the decision in the Kennedy v. Jones, the D epartm ent o f Justice issued a press release stating:
President Ford has determ ined that he will use the return veto rather than the pocket veto during
intrasession and intersession recesses and adjournm ents o f the Congress, provided that the House
o f Congress to w hich the bill and the P resid en t's objections must be returned according to the
C onstitution has specifically authorized an officer or other agent to receive return vetoes during
such periods.
D epartm ent o f Justice Press Release (Apr. 13, 1976).
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perception of and remedy for the dangers attendant to a lengthy intersession
adjournment. See The Pocket Veto Case, 279 U.S. at 684-85. In between the
extremes of these two cases lies a number of other factual situations in which
the result cannot be clearly derived from Wright. For example, we suspect that
the holding in Wright would not control if either House has adjourned sine die
at the end of a Congress: the Congress as a whole would not be in a position to
reconsider a bill returned to it. An intersession adjournment by one House
might also present a much more difficult issue for the Court than the short
recess in Wright. Finally, the most difficult situation under the analysis in
Wright would be an intrasession adjournment by one House of Congress longer
than three days. The Court in Wright expressly declined to predict the result in
such circumstances, stating:
[W]e 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.
Wright, 302 U.S. at 598. It is therefore clear that Wright cannot be read as the
final word on these issues. It goes without saying, of course, that what Wright
preserved of The Pocket Veto Case, the District of Columbia Circuit could not
on its own authority destroy. Thus, we conclude that if both Houses of Con­
gress have adjourned sine die between sessions of Congress, their adjournment
“prevents” the President’s return of a bill within the meaning of the Pocket
Veto Clause.
B. The Effect o f President F o rd ’s Announcement
As we stated in our November 15, 1982 memorandum, see 6 Op. O.L.C. at
151-52, we do not believe that subsequent Presidents should consider them­
selves bound by President Ford’s self-imposed restrictions on his use of the
pocket veto. Moreover, as the Supreme Court so recently reaffirmed, any doubt
that the President’s approval could immunize a practice from constitutional
scrutiny was resolved in M arbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).
See INS v. Chadha, 462 U.S. 919, 942 n.13 (1983).
C. The R eceipt o f M essages
As we discussed in our previous memoranda, specific authorizations of
agents to receive messages from the President have been customary for
intersession and intrasession adjournments in both Houses. The Senate’s provi­
sion for receipt of messages by the Secretary of the Senate during the present
intersession adjournment appears unexceptional in this regard. Since 1981, it
has not been necessary for the House to adopt a d hoc provisions because it has
maintained a standing Rule providing for receipt of messages from the Presi­
dent and the Senate whenever the House is not in session. As we noted in our
memorandum of November 15, 1982, however, the House Parliamentarian’s
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comments make clear that the House Rule, originally adopted by the 97th
Congress, H.R. Res. 5, 127 Cong. Rec. 98 (1981), was added to facilitate, if
possible, the use of the return veto during intrasession recesses and thereby to
discourage use of the pocket veto at that time. See 6 Op. O.L.C. at 151. The
Parliamentarian’s comments do not mention intersession pocket vetoes. More­
over, the legislative history of House Rule III-5 supports this interpretation.
Congressman Michel entered an analysis of the January 1981 Rules changes
into the Congressional Record prior to their adoption, 127 Cong. Rec. 99-102
(1981), in which he explained that the proposed rule applied only to “non sine
die adjournments.” Id. at 100. We therefore believe that the Senate’s appoint­
ment of an agent to receive messages during the current adjournment and the
House’s standing delegation of authority to receive messages were not in­
tended to, and do not, require the President to use a return veto during an
intersession adjournment.
D. The Recall Provision
For similar reasons, we believe that the provision in H.R. Con. Res. 221,
authorizing the recall of Members upon two days’ notice by joint action of the
Speaker of the House and the Majority Leader of the Senate, does not affect the
use of the pocket veto during an intersession adjournment. First, there is no
indication in either the language or the legislative history of the Concurrent
Resolution that it was intended to prevent the President’s use of the pocket
veto. The “public interest” standard specified in the Concurrent Resolution for
the recall of Congress is at least as consistent with a conclusion that the
provision was intended to permit Congress to reconstitute itself to deal with
unanticipated crises in foreign or national affairs. A similar clause was in­
cluded, for example, in H.R. Con. Res. 68, by which the 79th Congress
adjourned during the first session in 1945 shortly after the end of World War II.
See 91 Cong. Rec. 7733-34,7911-12 (1945). See also H.R. Con. Res. 412,93d
Cong., 1st Sess., 119 Cong. Rec. 43323, 43327 (1973).9
Second, even if the Congress had indicated an intention to preclude use of
the pocket veto during this intersession adjournment, we do not believe that the
provision in H.R. Con. Res. 221 could accomplish that objective. The Concur­
rent Resolution merely provides that the Speaker and the Majority Leader,
acting jointly, may, at their discretion, recall the Members on two days’ notice.
Under the reasoning of The Pocket Veto Case, once Congress adjourns, there is
no functioning “House” in the constitutional sense to which a bill can be
returned. Moreover, because the recall is discretionary, the President could not
9 A prior m emorandum w ritten in this O ffice considered the effect o f the recall provision in H.R. Con. Res.
412 on the use o f the pocket veto during the intersession sine die adjournm ent o f the 93rd Congress. That
m emorandum concluded that the recall provision w as not effective to require the use o f the return veto. A
sim ilar recall provision w as included in S. Con. Res. 42, 93d Cong., 2d Sess., 119 Cong. Rec. 26427 (1973).
The Guide to Congress (C ongressional Q uarterly, 3d ed. 1982) states that S. Con. Res. 42 revived a procedure
that had not been used in 25 years. See also H.R. Con. Res. 6 9 7 ,93d Cong., 2d Sess., 120 C ong. Rec. 41815
(1974).
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know in advance whether Congress in fact would be recalled to reconsider a
bill returned with his objections. The Congress could remain adjourned and
“prevent” the return of the bill — the precise situation the Pocket Veto Clause
was designed to prevent. We do not believe the mere possibility that Congress
could be recalled can affect the constitutional power of the President that arises
on the adjournment of Congress sine die. Indeed, under the Constitution, the
President always retains the authority to recall the Congress. U.S. Const, art. II,
§ 3. That he could have done so did not lead the Court in The Pocket Veto Case
to conclude that a return veto could have been exercised in lieu of the pocket
veto. We thus conclude that the mere reservation by the congressional leader­
ship of the power to recall the Congress does not alter the fact that Congress has
adjourned and dispersed, rendering a pocket veto appropriate.
Theodore B. O lson
Assistant Attorney General
Office o f Legal Counsel
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