Whether a Three-Day Recess by One Chamber of Congress Constitutes an Adjournment for Purposes of the Pocket Veto Clause ( 1934 )

Whether a Three-Day Recess by One Chamber of
Congress Constitutes an Adjournment for
Purposes of the Pocket Veto Clause
It is doubtful that a three-day recess by the Senate, with the House continuing in session, constitutes an
adjournment by Congress that would “prevent [the] Return” of a bill that has been presented to the
President under the Pocket Veto Clause of the Constitution.
March 16, 1934
LETTER OPINION FOR THE EXECUTIVE CLERK OF THE WHITE HOUSE
Following up our conversation, I have not had time to make a complete or
satisfactory investigation of the important and interesting question presented by
you, but we agree that the Bill to which you referred will become a law today
“unless the Congress by their Adjournment prevent its Return,” as provided in the
Constitution.
The question then is whether a three-day recess by the Senate, with the House
continuing in session, constitutes an adjournment by the Congress. Manifestly
such a recess for three days constitutes a temporary adjournment by the Senate,
but I doubt if an adjournment of the Congress thereby results.
The Pocket Veto Case clearly states that “the determinative question in refer-
ence to an ‘adjournment’ is not whether it is a final adjournment of Congress or an
interim adjournment, such as an adjournment of the first session, but whether it is
one that ‘prevents’ the President from returning the bill to the House in which it
originated within the time allowed,” 279 U.S. 655, 680 (1929), but it must be
observed that there was in that case an actual adjournment of both Houses, and
therefore of the Congress, which is not the situation before us now.
I find no clear decision, but if the President wishes to make sure of his veto, I
think he should follow Senator Robinson’s suggestion of disapproving* and
returning the Bill, but if he should wish to obtain a clear-cut decision on the
question presented, the opportunity is an excellent one for that purpose.** I should
perhaps add that I have not had the opportunity of discussing this question with the
Attorney General.
ANGUS D. MACLEAN
Assistant Solicitor General
*
Editor’s Note: The Unpublished Opinions of the Assistant Solicitor General include a cross-
reference here to the opinion on the next page (Exercising the Pocket Veto, 1 Op. O.L.C. Supp. 26
(June 26, 1934)).
**
Editor’s Note: Four years later, in Wright v. United States, 302 U.S. 583 (1938), the Supreme
Court addressed this precise question and ruled that a three-day recess by the Senate, while the House
remained in session, did not constitute an adjournment that prevented the return of a bill.
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