The Pocket Veto: Historical Practice and Judicial Precedent (II) ( 1982 )

The Pocket Veto: Historical Practice and Judicial Precedent
n.
November 15, 1982
M EM O R A N D U M OPINION FO R TH E COUNSEL TO THE PRESIDENT
This m em orandum supplements our m em orandum of February 10, 1982, to
you, w hich discussed generally the President’s power to pocket veto legislation.
That m em orandum also addressed the propriety of President Reagan’s pocket
veto o f H .R . 4353 during the intersession recess of the 97th C ongress.' Since that
m em orandum was prepared several matters have come to our attention. While
none of them casts doubt on the conclusions articulated in our earlier memoran­
dum , we believe that they should be brought to the attention of those who might
rely on o u r February 10, 1982, mem orandum in making decisions about the
advisability o f future pocket v etoes.2
In our February 10 memorandum we discussed the 1974 D .C . Circuit decision
in Kennedy v. Sampson, 511 F.2d 430 (D .C . Cir. 1974). We did not discuss the
subsequent district court decision in Kennedy v. Jones, 412F. Supp. 353(D .D .C .
1976). In Kennedy v. Jones, the government entered into a consent judgm ent with
the plaintiff in a case challenging the validity of two pocket vetoes: one, an
intersession pocket veto; the other an intrasession pocket veto during an election
recess of 31 days. On the same day that judgm ent was entered, President Ford
announced publicly that he w ould not invoke his pocket veto power during
intrasession o r intersession recesses if the originating House of Congress had
specifically authorized an officer or other agent to receive return vetoes during
such periods. Department of Justice Press Release, Apr. 13, 1976.3 That an­
1 T h e co n stitu tio n ality o f President R ea g an 's pocket veto o f H R 4 3 5 3 may be litigated in the Lifetim e
C o m m u n ities, I n c ., New York bankruptcy p ro cee d in g now p ending in the S eco n d C ircuit, Lifetime Communities,
Inc. v. The Admin. Office o f the U S Courts {In re Fidelity M ortgage Investors), No. 8 2 -5 0 0 5 The A dm inistrative
O ffice o f the U .S C o u rts, represented by th e D epartm ent o f Ju stice , filed a response on Septem ber 2 7 , 1982, to
ap p e llan ts' m otion for leave to supplement its petition for rehearing to include a challenge to the pocket veto. In that
resp o n se, appellee ag ree d that appellants’ n ew ly raised ch a llen g e to P resident R eagan's pocket veto o f H .R 4353
should be reh ea rd o n the m erits by the S eco n d C ircuit panel. T h e pocket veto o f H R 4353 was, o f co u rse, an
in /ersessio n p o ck e t veto H owever, the ratio n ale supporting the availability o f intersession pocket vetoes w ould
seem eq u ally ap p licab le to pocket vetoes d u rin g extended intrasession recesses. The Lifetime Communities case
m ay affo rd a m ore favorable factual setting th a n the tw o Kennedy cases, as w ell as a different forum , for litigating the
pocket veto issues it presents [The pocket v e to issue was not decided by the court o f ap p eals, see 690 F 2 d 35 (2d
C ir 1982), and certiorari w as denied by th e Suprem e C ourt 462 U S 1106 (1983) ]
2 W ith resp ect to the discu ssio n in that m em o ran d u m regarding the im plications of the p ocket veto ca ses for the
P resid en t's recess app o in tm en t power, see o u r F eb 10, 1982, m em orandum to you at pp [134]. We refer you to ou r
O c to b e r 2 5 , 1982, m em orandum to Counsel to the President F red F Fielding for a discussion o f recent develop­
m ents in th e rece ss a p p o in tm e n ts area
3 T h u s, the im m ediate occasion for the 1976 Ford announcem en t was the 1976 Kennedy v. Jones consent
ju d g m e n t. T h a t an n o u n c em en t w as not m ad e, as erroneously suggested in o u r previous m em orandum , in response
o n ly to th e 1974 Kennedy v Sampson case.
150
nouncement addressed only President Ford’s intended use of the pocket veto
power, and did not purport to bind, nor could it have bound, future Presidents.
President Reagan has made no sim ilar statement, nor did President Carter during
his Presidency.
President Ford’s statement confines its application to those situations in which
the House of origin has specifically authorized an agent to receive messages dur­
ing the adjournment in question, as had been done in the case of the intrasession
pocket veto challenged in Kennedy v. Jones. See S. Con. Res. 120, § 3, 120
Cong. Rec. 36038 (1974) (intrasession election adjournment of the 2d Session of
the 93d Congress). Specific authorizations of an agent to receive messages from
the President becam e custom ary for intrasession and intersession recesses in both
the Senate and the H ouse,4 and apparently still are in the Senate.5 At the
beginning of the 97th Congress, however, the House amended its Rules to add
new Rule of the House III-5 , which authorizes the Clerk to receive messages “ at
any time that the House is not in session.” 6 The House Parliamentarian’s com ­
ments on new Rule III—5 state that this language is an effort to prevent intrases­
sion pocket vetoes, citing Kennedy v. Sampson. Those comments make no
mention of /n/ersession pocket vetoes or of Kennedy v. Jones. The legislative
history of new 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. 100-03 (1981). His explanation
of proposed new Rule III-5 states that it applies only to “ non sine die adjourn­
ments.” Id. at 100.
With respect to President R eagan’s pocket veto of H .R. 4353 during the
intersession recess of the 97th Congress, to which our February 10, 1982,
memorandum was addressed, several observations should be made. First, it was
an intersession veto, and thus fell outside the scope of the D .C. Circuit’s decision
in Kennedy v. Sampson. Second, there was no specific resolution adopted by the
House authorizing its agent to receive presidential messages during the interses­
sion recess of the 97th Congress, nor was there unanimous consent to do so, as we
noted in that memorandum. Third, although the broad language of new House
Rule III-5, quoted above, arguably covers intersession pocket vetoes, its com ­
mentary and legislative history indicate that it was aimed specifically at intrases­
sion pocket vetoes. Thus, we believe that the pocket veto of H .R . 4353 would
probably have been considered appropriate even under President Ford’s self-
imposed limitations on the exercise of his pocket veto power.
More importantly, however, we do not believe that subsequent Presidents
should consider themselves bound by President Ford’s self-imposed restrictions
on his use of the pocket veto power. Our February 10, 1982, memorandum and
the Supreme Court cases which it analyzes set forth the rationale supporting the
4 S e e , e g . , S C on. Res 120, § 3, 120 C ong Rec 36038 (1974), H .R . C on Res 5 18, § 3 , 121 C ong R ec.
41973 (1975), H R C on Res 44 2 , § 2 , 123 C ong. Rec 39132 (1977).
5 127 C ong. Rec. S 1^5632 (daily ed. Dec 16, 1981); 128 C ong Rec S13262 (daily ed. O ct 1, 1982).
6 5 e ^ H R Res 5 , 1 2 7 C ong Rec 9 8 -1 1 3 (1981) The Senate R ules have not been sim ilarly am ended See
Senate M anual 1981 (S D oc. N o. I, 97th C o n g ., 1st Sess. (1981)).
151
use of pocket vetoes during both intersession and extended intrasession recesses.
While we strongly believe that the pocket veto power should be interpreted in
accordance with the principles set forth in our February 10,1982, memorandum,
the cases discussed there, as well as the subsequent developments mentioned
here, suggest caution in exercising that power during at least intrasession recesses
until m ore favorable court decisions have been obtained. The consequence of an
unfavorable court ruling on a pocket veto is that the legislation becomes law. If a
return veto is utilized, of course, the veto must be overridden in order for the bill
to becom e law. W ith respect to the present extended (October 2-N ovem ber 29)
intrasession adjournm ent, the broad statem ent of the holding by the court in
Kennedy v. Sampson counsels against use of a pocket veto,7 at least with regard to
im portant legislation. The adjournm ent sine die of the 2d Session of the 97th
Congress will presum ably terminate that Congress, and bills presented within ten
days o f that final adjournment would be subject to pocket vetoes. As noted in our
February 10 mem orandum, the propriety of a pocket veto after a final adjourn­
ment (as opposed to an intrasession o r intersession adjournment) remains un­
questioned, “ since such an adjournm ent terminates the legislative existence of
the Congress and makes it im possible to return the bill to either House.” The
Pocket Veto Case, 279 U.S. 655, 681 (1929).
T heodore B. O lson
Assistant Attorney General
Office of Legal Counsel
7 Even though the case itself involved an intrasession pocket veto during an adjournment of only six days’
duration.
152