Approval and Disapproval of Bills by the President After Sine Die Adjournment of the Congress ( 1982 )

Approval and Disapproval of Bills by the President
After Sine Die Adjournment of the Congress
T he P resident m ay approve a bill after th e sine die adjournm ent of Congress. If he w ishes to
disap p ro v e legislation, the correct procedure is sim ply inaction, w hich results in a pocket veto.
W hile a form al veto m essage is inappropriate, the President m ay express his disapproval through a
m em orandum o f disapproval.
December 30, 1982
MEMORANDUM OPINION FOR THE DEPUTY COUNSEL
TO THE PRESIDENT
This responds to your request for our advice regarding several questions
related to the approval or disapproval of bills by the President after the sine die
adjournment of the 97th Congress.
A. A pproval o f bills. Originally, Presidents had doubts whether they could
approve bills when Congress was not in session.1President Lincoln apparently
was the first President to approve a bill after the adjournment of Congress. The
practice became firmly established during the administrations of Presidents
Wilson and Hoover. 32 Op. A tt’y Gen. 225 (1920); 36 Op. Att’y Gen. 403
(1931). The practice was held constitutional in Edwards v. United States, 286
U.S. 482 (1932). The basic rationale of Edwards is that the Constitution gives the
President ten days to consider whether he should approve a bill and that this
period may not be shortened by a sine die adjournment of Congress. Id. at 493.
Examples of instances in which Presidents have approved legislation after an
adjournment sine die of the Congress and even after its termination are:
1. Following the termination of the 76th Congress on January 3, 1941,
President Roosevelt approved bills as late as January 9, 1941. (See Pub. Res. No,
111, 54 Stat. 1227 (1941).)
2. After the sine die adjournment of the 81st Congress on January 2,1951, and
its termination of January 3, 1951, President Truman approved bills as late as
January 12, 1951. (See The Public Papers of the Presidents, Harry S Truman
1951, 26-27.)
1 These doubts were based on the now rejected theory that the approval of a bill is a legislative act which can be
performed only while Congress is in session. La Abra Silver Mining Co. v. United States, 175 U S. 423, 453-55
(1899).
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3. After the sw ed/e adjournment of the 91st Congress on January 2, 1971, and
its termination on January 3, 1971, President Nixon approved bills as late as
January 13, 1971. (See 7 Weekly Comp. Pres. Doc. 71 (Jan. 18, 1971).)
B. Disapproval of bills. Article I, § 7, clause 2 of the Constitution provides
that if Congress by its adjournment prevents the return of a bill, a bill not
approved by the President within ten days after the presentation “ shall not be a
Law.” The effect of this provision is twofold. First, if the President wants to
disapprove a bill, he cannot return it to the House in which it originated. Second,
if he wants to approve it, he must act positively during the ten-day veto period.
Failure to do anything results in the disapproval of the legislation, i.e., a pocket
veto. Edwards v. United States, 286 U.S. at 491-92.
The correct procedure for disapproving a bill after a sine die adjournment of
the Congress is inaction. A formal veto message is inappropriate. The President’s
disapproval of the legislation may be expressed by a memorandum of disap­
proval. Thus, after the sine die adjournment of the Congress on January 2, 1951,
and its termination on January 3,1951, and the convening of the 82d Congress on
the same day, a memorandum of disapproval, dated January 6, 1951, disclosed
President Truman’s failure to approve a private bill. The Public Papers of the
Presidents, Harry S Thiman 1951, 657. After the termination of the 91st
Congress on January 3, 1971, President Nixon issued a memorandum of disap­
proval, dated January 4, 1971, disclosing his failure to approve a bill to provide
special retirement benefits for firefighters. 7 Weekly Comp. Pres. Doc. 32
(1971).
T h e o d o r e B . O lso n
Assistant Attorney General
Office c f Legal Counsel
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