             Presidential Action on Joint Resolution
                     Disapproving Pay Raise
Under the Federal Salary Act of 1987, a pay raise recommended by the President becomes
  effective as law unless it is disapproved by a joint resolution “agreed to by the Congress”
  prior to the end of the 30-day period beginning when the President submits his recom­
  mendation. The Act thus requires passage of the joint resolution by both Houses of
  Congress, but not signature by the President, prior to the end of the period.
The Constitution requires that the joint resolution disapproving the pay raise be presented
  to the President, and he is entitled to the constitutionally prescribed 10-day period to
  consider it. If the President signs the joint resolution dunng this period, the pay raise is
  disapproved. If the President vetoes the joint resolution (and the veto is not overridden),
  the pay raise is effective.
With respect to Article III judges, the President’s approval of the joint resolution after the
  30-day period does not offend the Compensation Clause or section 2 of the joint resolu­
  tion, since as a practical matter no increase in pay would vest m the judges prior to the
  expiration of the period.
                                                                        February 7, 1989
                M emorandum O pinion        for the   Attorney G eneral

   Pursuant to the Federal Salary Act of 1967, as amended, 2 U.S.C. §§
351-361 (the “Act”), the President transmitted to the Congress on January
9, 1989, recommendations for the increase in salaries of certain members
of the executive, legislative, and judicial branches. Pursuant to 2 U.S.C. §
359(1), this recommendation is to become effective as law “unless [the]
recommendation is disapproved by a joint resolution agreed to by the
Congress not later than the last day of the 30-day period which begins on
the date of [sic] which such recommendations are transmitted to the
Congress.”
   The Senate voted in favor of a resolution of disapproval of the
President’s recommendations, S.J. Res. 7, 101st Cong., 1st Sess. (1989),
on February 2, 1989. See 135 Cong. Rec. 1461 (1989). Today, the last day
of the thirty-day period following receipt of the President’s recommenda­
tions, we understand that the House of Representatives either has, or will
vote, in favor of S.J. Res. 7, or another resolution of disapproval, which
will then be transmitted to the Senate for its approval. Under the Act, the
joint resolution must be “agreed to by Congress” within the thirty-day
period. The question has arisen whether this joint resolution must also be
signed by the President within the thirty-day period.
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    Primarily, we think this question is answered by the plain language of
 the Act. By its terms, the Act requires agreement by both Houses of
 Congress prior to the expiration of the thirty-day period, not signature by
 the President. Thus, by its express terms, the Act is stated as a limitation
 on Congress, not the President. This interpretation is also supported by
 the Senate Committee report which, in describing the effect of this lan­
 guage, states: “The Congress will have 30 days to pass a joint resolution
 disapproving those recommendations.” S. Rep. No. 210, 99th Cong., 1st
 Sess. 25 (1985) (emphasis added). Putting to one side for the moment the
 serious constitutional question which would be presented by a purported
 limitation on the President’s constitutionally-defined period of consider­
 ation for a joint resolution, had Congress intended to so limit the
 President, it presumably would have used the term “enacted” rather than
 “agreed to.” As a matter of constitutional law, of course, no joint resolu­
 tion can be enacted into law without it being presented for the President’s
 signature or its constitutionally-prescribed equivalent.1In this regard, the
Act speaks of disapproval by a joint resolution of Congress and the
 Supreme Court’s decision in INS v. Chadha, 462 U.S. 919 (1983), leaves
no doubt that any resolution must be presented to the President pursuant
to Article I of the Constitution if it is to be effective as law.
    It is because of the constitutional requirement of presentment as
affirmed in Chadha, however, that we anticipate it will be argued that
Congress should be understood as intending to require signature by the
President prior to the expiration of the thirty-day period. Indeed, this
interpretation of the statute was advanced by both the House and Senate
counsel in litigation relating to the last pay raise under the Act, see
Humphrey v. Baker, 665 F. Supp. 23 (D.D.C. 1987), affd, 848 F.2d 211
(D.C. Cir.), cert denied, 488 U.S. 966 (1988), although neither the district
nor appellate court passed on the question. See 665 F. Supp. at 30 n.7. For
the reason stated above, we do not believe that this argument will prevail
in litigation. As already indicated, we think this argument is incorrect
because of the literal language of the Act. However, even if one were to
admit ambiguity in the Act’s meaning, we question whether Congress can
by statute deprive the President of the ten-day period of consideration
afforded to him by Article I, Section 7 of the Constitution. In short, the
Act by its express terms only states a thirty-day limitation applicable to
Congress. This thirty-day limitation cannot vitiate either the Constitu­
tion’s requirement that a joint resolution be presented to the President or
the President’s ten-day period of consideration.2

   1 Presidential signature is not the only method by which a bill becomes law under Article I of the
Constitution In addition, a bill becomes law if (absent an ac^joumment of Congress) the President does
not return to Congress the bill within ten days, or if he does return it with his objection, his objection is
ovemdden by a two-thirds vote of each house U S Const, art. 1, § 7, cl 2. In this memorandum, howev­
er, we use “signature” as a shorthand reference for the three methods by which a bill becomes law.
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   Nonetheless, given the stakes involved, if the President does not sign
the joint resolution today within the 30-day period, we believe litigation
is likely. Accordingly, as a matter of prudence, if the President wishes to
avoid litigation over the pay raise, however unmeritorious, we recom­
mend that he sign the joint resolution of disapproval before midnight
tonight.
   As we write this, we have not been advised of the exact language of the
final enrolled joint resolution. In this regard, we are unaware if it incor­
porates section 2 of S.J. Res. 7, which contains its own effective date pro­
visions. Section 2(a)(1) of S.J. Res. 7 provided that “if the date of the
enactment of this resolution is on or after February 8, 1989, the rates of
pay for all offices and positions increased by the recommendations,”
shall revert to their prior levels. But it adds the proviso in section
2(a)(2)(B) that: “[t]he provisions of [section 1] and [section 2] shall not
apply to reduce the rate of pay of any judge or justice appointed pursuant
to article III of the Constitution of the United States.”
   The question raised by section 2 of S.J. Res. 7 is — if the joint resolution
is signed by the President, and thus “enacted” into law on or after
February 8 (after the thirty-day period)— will Article III judges be entitled
to the pay raise by virtue of section 2(a)(2)(B). We think not. Accepting
our initial conclusion that the pay raise will not go into effect even if the
President signs the disapproval resolution (which is section 1 of S.J. Res.
7) after the thirty-day period has expired, the pay of Article IQ judges will
never have been “increased,”3 and thus the joint resolution disapproving
the pay raise can be applied to Article III judges without “reduc[ing]” their
rate of pay as forbidden by section 2(a)(2)(B) of S.J. Res. 7.
   In conclusion, the thirty-day limitation in the Act is by its terms applic­
able only to Congress. Moreover, the Constitution requires that the joint

  2 This interpretation is not inconsistent with section 359(2), which provides that the effective date of
the pay increase in section 359(1) shall be the first day of the first pay period beginning after the close
of the thirty-day period. It is true that if the thirty-day penod ends just before the beginning of a pay peri­
od, the President might not have acted on a joint resolution on the first day of the first pay penod after
Congress agrees to the joint resolution. But there is no reason a pay increase cannot be retroactive to an
earlier date, should the President determine to disapprove the joint resolution.
  3 We understand that the next applicable pay penod for Article 111judges begins March 1, 1989. Under
United Stales v. Will, a judge’s salary increase “Vests’ for purposes of the Compensation Clause only
when it takes effect as part of the compensation due and payable to Article III judges ” 449 U.S 200, 229
(1980) (emphasis added). Because section 359(2) of the Act provides that the recommended pay increas­
es do not become effective until the first day of the first pay penod after expiration of the thirty days, we
read United States v. WiU to mean that no vesting within the meaning of the Compensation Clause of the
Constitution, Article III, Section 1, would occur so long as the judges’ raises did not become effective
conclusively or were rescinded pnor to March 1, 1989.
  Even were the judges’ pay penod not March 1, 1989, but rather a date preceding the date on which the
President signed the bill, we doubt that the judges would constitutionally be entitled to receive a raise
under the Compensation Clause. While the Act designates the pay period on which the raises are to take
effect, this designation must be purely for accounting purposes to be consistent with the Supreme Court’s
decision in Chadha. Consistent with Chadha, after the passage of the joint resolution, neither the judges
nor anyone else would be entitled to a pay raise unless and until the President vetoed the joint resolution.
                                                      52
resolution be presented to the President, and we believe that the
President is entitled to the prescribed ten-day period to consider it. If the
President signs the joint resolution during this period, the pay raise is dis­
approved. If the President vetoes the joint resolution (and the veto is not
overridden), the pay raise is effective in accordance with section 359(2)
of the Act. With respect to Article III judges, the President’s approval of
the joint resolution after the thirty-day period does not offend the
Compensation Clause or section 2 of S.J. Res. 7, since as a practical mat­
ter, we understand no increase in pay would vest in the judges prior to
March 1, 1989.
                                               D ouglas W. Kjvuec
                                          Assistant Attorney General
                                            Office of Legal Counsel




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