  The Pocket Veto: Historical Practice and Judicial Precedent

[The follow ing two m em oranda exam ine historical practice and judicial precedent under the Pocket
   Veto Clause o f the C onstitution, A rt. I, § 7, cl. 2, in order to advise the President concerning the
   efficacy o f a p ocket veto during both intrasession and intersession adjournm ents of Congress.]




                                                    I.

                                                                                February 10, 1982

 M EM O R A N D U M OPINION FO R THE COUNSEL TO THE PRESIDENT

   This m em orandum discusses generally the President’s power to pocket veto
legislation, with specific reference to the President’s pocket veto of H.R. 4353
during the recent intersession adjournm ent o f the 97th Congress.
   A rticle 1, § 7, clause 2 of the Constitution provides:

          Every Bill which shall have passed the House of Representatives
          and the Senate, shall, before it become a Law, be presented 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, w ho shall enter the Objections at large on
          their Journal, and proceed to reconsider it. If after such Recon­
          sideration two thirds of that House shall agree to pass the Bill, it
          shall be sent, together w ith the Objections, to the other House, by
          w hich it shall likewise be reconsidered; and if approved by two
          thirds o f that House, it shall become a Law. . . . If any Bill shall
          not be returned by the President w ithin ten Days (Sundays ex­
          cepted) after it shall have been presented to him, the Same shall be
          a Law, in like M anner as if he had signed it, unless the Congress
          by their Adjournment prevent its Return, in which case it shall not
          be a Law.
(Em phasis supplied.) The italicized phrase is commonly referred to as the
“ pocket veto” provision because it empowers the President to prevent a bill’s
becom ing law sim ply by placing it in his pocket— i.e., neither signing it nor
returning it with his objections to its House of origin. The functional difference


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between ordinary vetoes and pocket vetoes is that the latter cannot be overridden
by Congress.
   As the President’s recent pocket veto of H.R. 4353 demonstrates, the questions
raised by the pocket veto provision have considerable practical significance. If,
contrary to the advice given orally by this Office, the pocket veto of H .R . 4353
was ineffective, that provision became law at the expiration of the ten-day period
(Sundays excepted) after it was presented to the President. Because of the short
time period involved, and because of the possible adverse consequence of an
erroneous decision to pocket veto a bill rather than return it to Congress with
objections, questions regarding the pocket veto provision often attain consider­
able urgency and importance. We therefore believe that it is useful to examine in
advance the various issues arising under the pocket veto provision in a relatively
comprehensive fashion in order to advise you regarding the legality of pocket
vetoes in situations that are likely to arise in the future.
   The pocket veto provision appears to have been adopted without controversy
by the Framers; the proceedings and debates of the Constitutional Convention
shed no light on its meaning. Interpretation of the provision must therefore rely
on historical practice and on three pertinent judicial decisions: The Pocket Veto
Case, 279 U .S. 655 (1929); Wright v. United States, 302 U .S. 583 (1938); and
Kennedy v. Sampson, 511 F.2d 430 (D .C. Cir. 1974).

                                            I. Historical Practice

   Presidents throughout our history have used the pocket veto power fre­
quently— a fact which is not surprising in light of the tendency on the part of
Congress to present a mass of legislation to the President just before it adjourns
and in view of the convenience to the President of exercising a veto that cannot be
overridden by Congress. M ost pocket vetoes have occurred after final adjourn­
ments of C ongress or intersession adjournments between the first and second
sessions.1 Presidents have also pocket vetoed bills during intrasession adjourn­
ments2 of varying lengths,3 but this practice has been relatively unusual.4 The
historical practice therefore strongly supports the pocket veto during final and
intersession adjournm ents, but is inconclusive for intrasession adjournm ents.5


    1 See H ouse D oc. N o. 493, 70th C o n g ., 2d Sess. (1928) (m em orandum prepared by the A ttorney G eneral and
p resented to C ongress; relied on by Suprem e C ourt in The Pocket Veto Case, 2 7 9 U .S. 655 (1929)).
   2 T he A ttorney G eneral rendered an opinion in 1943 concluding that the pocket veto provision w as triggered by an
adjournm ent w ithin th e first session o f the 78th C ongress w hich lasted from July 8 to Septem ber 14, 1943. 4 0 Op.
A tt'y G en. 274 (1943).
   3 See Office o f Legal C ounsel, Pocket Vetoes D uring Short H oliday R ecesses (Jan. 13, 1971), Pocket V etoes
D uring A djournm ents o f C ongress W ithin a S ession (Nov 19, 1968).
   4 See Kennedy v Sampson, 511 F.2d at 4 4 2 -4 5 (appendix analyzing pocket vetoes d u n n g all in trasessio n
adjournm ents o f m ore than three days since 1800)
   5 W hile highly relevant, the practice engaged in by the Executive Branch and generally acquiesced in by C o n g ress
is not dispositive See The Pocket Veto Case, 279 U .S . at 690 (executive practice, acquiesced in b y the legislature, is
entitled to “ great re g a rd ” but is “ not absolutely binding on the ju d icial departm ent. . ” ) (quoting State v South
Norwalk, 77 C onn 2 5 7 , 264). It is ultim ately the province and duty o f the Judicial Branch to “ say w hat the law is.”
United States v N ix o n ,4 1 8 V .S .6 8 3 ,7 0 3 (l974),quotingM arburyy.M adison,5\J S (J Cranch) 137, 177(1 8 0 3 ).
Executive practices, even ones o f long duration, m ust yteld to contrary jud icial interpretations.


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                                             II . Judicial Decisions

A. The Pocket Veto Case

   The Pocket Veto Case involved a Senate bill which authorized certain Indian
tribes to bring suit against the United States in the Court of Claims. The bill
passed both Houses and was d u ly presented to the President on June 24 ,1 9 2 6 . On
July 3, 1926, the House of R epresentatives adjourned sine die and the Senate
adjourned to N ovem ber 12, the date to w hich, sitting as a court of impeachment,
it had previously adjourned fo r the trial of certain articles of im peachm ent.6 The
July 3 adjournm ent was the final adjournm ent of the first session of the 69th
Congress. The ten-day period (Sundays excepted) provided for presidential
action under A rticle I, § 7, clause 2 expired on July 6, 1926, three days after the
first session o f Congress adjourned. The President neither signed the bill nor
returned it to the Senate and th e bill was not published as a law.
   Contending that the bill had become a law without the President’s signature,
the Indian tribes filed suit in the Court of Claims. The Court of Claims sustained
the U nited States’ demurrer an d the Supreme Court affirmed unanimously.
Justice S anford’s opinion concluded that the word “ adjournm ent” was not
lim ited to final adjournments o f a Congress, but also included interim adjourn­
m ents between or within sessions. The determ inative question, therefore, was
not w hether C ongress had “ adjourned,” but rather whether the adjournment was
one which “ prevent[ed]” the President from returning a bill to the House in
which it originated in the time allowed.
   The specific question, in the C ourt’s view, was whether the intersession
adjournm ent o f C ongress prevented the President from returning the bill, or
w hether the Constitution was satisfied by the possibility of delivery to an officer
or agent o f the H ouse of origin, to be held by him and delivered to the House
when it resum ed its sittings for th e next session. The Court concluded that “ the
‘H ouse’ to which the bill is to be returned, is the House in session.” 279 U .S. at
682. It followed that

            under the constitutional mandate [the bill] is to be returned to the
            “ H ouse” when sitting in an organized capacity for the transaction
            of business, and having authority to receive the return, enter the
            President’s objections on its jou rn al, and proceed to reconsider
            the bill; and that no return can be m ade to the House when it is not
            in session as a collective body and its members are dispersed.

Id. at 683.
   In rejecting the contention that delivery to an agent sufficed when the House
was not in session, the Court observed that Congress had never authorized agents
to receive bills returned by the President during its adjournment. Moreover,

   6 T h e im peachm ent pro ceed in g s were b ro u g h t against G eo rg e W. E nglish, a federal d istrict ju d g e   English
resigned b efore th e dale for th e Senate trial. S ee 68 C ong. R ec 3 - 4 (1926).


                                                            136
delivery to such an agent, even if authorized by Congress, “ would not comply
with the constitutional mandate.” Id. at 684:

       The H ouse, not having been in session when the bill was delivered
       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 Constitu­
       tion requires; and there is nothing in the Constitution which
       authorizes either House to make a nunc pro tunc record of the
       return of a bill as of a date on which it had not, in fact, been
       returned. M anifestly 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 adjournm ent of the House, to some individual officer or agent
       not authorized to make any legislative 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 keeping the bill in the meantime
       in a state of suspended animation until the House resumes its
       sittings, with no certain knowledge on the part of the public as to
       whether it had or had not been seasonably delivered, and neces­
       sarily causing delay in its reconsideration 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 prom pt knowledge as to the status of the bill, but
       should enable Congress to proceed immediately with its recon­
       sideration; 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 som e 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.

B. Wright v. United States

   Wright v. United States, 302 U .S. 583 (1938), involved a Senate bill which
granted jurisdiction to the Court of Claims to adjudicate the petitioner’s claim
against the U nited States. The bill passed both Houses during the first session of
the 74th Congress and was presented to the President on April 24, 1936. On
May 4 ,1 9 3 6 , the Senate recessed until noon on May 7; the House of Representa­
tives remained in session. Because the Senate was in recess for not more than
three days, it was not necessary to obtain the consent of the House of Representa­

                                        137
tives pursuant to A rticle I, § 5 , clause 4 of the C onstitution.7 On May 5, the tenth
day (Sundays excepted) after receiving the bill, the President returned it to the
Senate with a m essage stating his objections. The bill and the message were
delivered to the Secretary of the Senate. The Senate received the President’s
m essage when it reconvened o n May 7 and referred the bill and the President’s
m essage to com m ittee. No further action was taken.
   T he petitioner presented his petition to the Court of Claims, contending that
the P resident’s veto of the bill was ineffective because, under The Pocket Veto
Case, delivery to an agent o f the Senate did not constitute a constitutionally
sufficient retu rn .8 The Court of Claim s denied the petition and the Supreme Court
affirm ed. The C o u rt’s opinion, per C hief Justice Hughes, held only that the
President’s veto of the legislation was effective; it did not directly concern the
pocket veto. In holding that the President was not prevented from vetoing the bill
by the tem porary recess of the Senate, however, the opinion necessarily implied
that a pocket veto of the bill would have been ineffective. Moreover, the C ourt’s
analysis contained broad language which stands in sharp contrast to The Pocket
Veto Case.
   The C ourt held, first, that “ Congress” had not adjourned when only one of its
H ouses was in recess. Because “ Congress” was comprised of both Houses, the
recess of the Senate while the H ouse rem ained in session did not amount to an
adjournm ent of Congress.
   Second, the C ourt rejected the argument that the President was prevented from
returning the bill because of the Senate’s recess. It noted that the Constitution did
not forbid return o f a bill to an agent of the Congress such as the Secretary of the
Senate. N or was there any practical difficulty in returning the bill during a recess:

             The organization of the Senate continued 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
             a session o f Congress than in presenting a bill to the President by
             sending it to the White House in his tem porary absence. . . . To
             say that the President cannot return a bill when the House in which
             it originated is in recess during the session of Congress, and thus
             afford an opportunity fo r the passing of the bill over the Presi­
             d en t’s objections, is to ignore the plainest practical considerations
             and by im plying a requirement o f an artificial formality to erect a
             barrier to the exercise o f a constitutional right.

Id. at 5 8 9 -9 0 .
   The C ourt distinguished The Pocket Veto C ase on the ground that the dangers
which the C ourt had envisaged with respect to an intersession adjournment by

   7 A rtic le I, § 5 , clause 4 provides: “ N either H o u se ,d u rin g the S ession o f C o n g re ss,sh a ll, w ithout the C onsent of
the other, adjourn for m ore than three days, n o r to any other Place than that in w hich the tw o H ouses shall b e sitting.”
   8 T h e p etitio n er co n ten d ed that the bill had n o t been pocket vetoed because the pocket veto provision applies only
w hen both H ouses have adjourned. Brief fo r Petitioner in Wright v United States at 18


                                                                  138
both Houses were illusory in the context of an intrasession adjournment by one
House for a period of three days or less. In the case of such a brief recess, there
was no danger that the public would not be promptly and fully informed of the
return of the bill with the President’s objections, or that the bill would not be
properly safeguarded or duly recorded upon the journal o f the House, or that it
would not be subject to reasonably prompt action by the House. Id. at 595.
   The Court specifically declined to address the question whether an intrasession
adjournment of m ore than three days, for which the consent of both Houses is
required pursuant to Article I, § 5, clause 4, would prevent the return of a bill and
thereby trigger the pocket veto provision. Id. at 598. It held only that
           where the Congress had 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, the bill
           does not become a law if the President has delivered the bill with
           his objections to the appropriate officer of that House within the
           prescribed ten days and the Congress does not pass the bill over
           his objections by the requisite votes.
Id.9

C. Kennedy v. Sampson

   Kennedy v. Sampson, 511 F.2d 430 (D .C . Cir. 1974), involved a Senate bill
which was presented to the President on D ecem ber 14, 1970. On Decem ber 22
both Houses adjourned pursuant to a concurrent resolution, the Senate until
December 28 and the House until December 29. The Senate authorized its
Secretary to receive presidential messages during the adjournment. On D e­
cem ber 24 the President issued a memorandum announcing that he would
withhold his signature from the bill; the President did not, however, return the bill
to the Senate. T he ten-day period (Sundays excepted) for presidential approval
expired on Decem ber 25. The bill was not published as a law.
   The plaintiff, a United States Senator who had voted for the measure, brought
suit in district court against the Administrator o f the General Services Admin­
istration and the Chief of W hite House Records seeking a declaration that the bill
had become law and an order requiring the defendants to publish the bill as law.
The defendants contended that the bill had been validly pocket vetoed and had not
become law. T he district court granted summary judgm ent for the plaintiff and
the U nited States C ourt of A ppeals for the D istrict of C olum bia C ircuit
affirm ed.10
   The court, p e r Judge Tam m ,11 began by observing that the pocket veto pow er is
an exception to the general rule that Congress may override the President’s veto.

   9 Justice Stone w rote an opinion, jo in ed by Ju stice B randeis, w hich agreed that the bill did not becom e a law but
co n clu d ed, contrary to the m ajority opinion, that the bill had been validly pocket vetoed Justice C ardozo to o k no
part in the decision o f the case
   10 The S olicitor G en eral determ ined not to petition the S uprem e C ourt for a w rit o f ce rtio ran
   11 Ju d ges fiahy and B azelon concurred in the opinion


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As su ch , in the cou rt’s opinion, the power m ust be limited by the specific purpose
w hich it was intended to serve. Applying this narrow construction, the court held
that the congressional adjournment at issue fell within the rule of Wright v. United
States rather than that o f The Pocket Veto C ase. The court found it immaterial that
the adjournm ent was for five days rather than three days, as in Wright. N or was it
significant that both Houses had adjourned, rather than only the House of origin
as in Wright, since the presence or absence o f the non-originating House could
have no relevance to the validity o f the pocket veto.
   Moreover, Judge Tamm concluded that a pocket veto would have been inap­
propriate even under the standards set forth in The Pocket Veto Case: “ [t]he
m odem practice o f Congress w ith respect to intrasession adjournments creates
neither of the hazards— long delay and public uncertainty— perceived in The
Pocket Veto C a se .” 511 F.2d at 440. Intrasession adjournments virtually never
involved interruptions of the m agnitude considered in The Pocket Veto Case; and
“ [m ]odem m ethods of com m unication,” id. at 441, make the return of a
disapproved bill to the appropriate officer o f an originating House a matter of
public record. T he court therefore concluded broadly that
             an intrasession adjournment of Congress does not prevent the
             President from returning a bill which he disapproves so long as
             appropriate arrangem ents are made for the receipt of presidential
             messages during the adjournment.
Id. at 437. See also id. at 4 4 2 .12

                               III. Interests Served by the Pocket Veto

   T hese cases identify three distinct interests— sometimes conflicting, som e­
tim es reinforcing— served by the pocket veto provision of the Constitution:
(1) the interest in ensuring that both Congress and the President have their due
say in the process of lawmaking (the interest in mutuality); (2) the interest in
avoiding delay in the process by which Congress determines whether to override
a presidential veto (the interest in prompt reconsideration); and (3) the interest in
ensuring public awareness of, and certainty about, the status of legislation (the
interest in public certainty).

A. Mutuality

   A rticle I, § 7 o f the Constitution provides generally that both the President and
the C ongress play a role in the lawmaking process— the President by approving

   12 Follow ing the Kennedy decision, the D epartm ent o f Justice issued a press release stating

           P resident Ford has determ ined that h e w ill use the return veto rather than the p ocket veto during
        intrasesston and in tersessio n recesses a n d adjournm ents o f th e C ongress, provided that the H ouse of
        C ongress to w hich th e bill and the P resident’s objections m ust be returned according to the
        C onstitution has specifically authorized an officer or other agen t to receive return vetoes during such
        p eriods.

D epartm ent o f Ju stice P ress R elease, Apr. 13, 1 9 7 6 ,a t 2 [ N o t e * T h e im m ediate occasion for this p ressrelea se was
the consent ju d g m e n t in Kennedy v Jones, 4 1 2 F.Supp. 353 (D .D C . 1976) Ed.]


                                                                140
or vetoing legislation, the Congress by passing legislation initially and by
overriding presidential vetoes. The Fram ers evidently intended that both
branches would play their assigned role whenever possible. As the Court said in
Wright v. United States, 302 U.S. at 596:

          T he c o n stitu tio n a l p ro v isio n s [fo r p re sid e n tial v eto, c o n ­
          gressional override, and pocket veto] have two fundamental pur­
          poses: (1) that the President shall have suitable opportunity to
          consider the bills presented to him, and (2) that the Congress shall
          have suitable opportunity to consider his objections to bills and on
          such consideration to pass them over his veto provided there are
          the requisite votes.

   The Framers recognized that certain technical rules were necessary in order to
prevent frustration of the interest in mutuality. See 1 J. Story, Commentaries on
the Constitution o f the United States § 891 (5th ed. 1905). First, there was the
possibility that the President would fail to act on a bill presented to him by
Congress. Because the bill would not be signed, it would not become a law; but
because the President would not return it with his objections to its House of
origin, there would be no opportunity for Congress to override a veto. To avoid a
de facto veto which would deprive Congress of its power to override, the Framers
provided that the President m ust act within ten days (Sundays excepted) or the bill
would become law as if he had signed it.
   This solution, however, created a second problem. If Congress was in adjourn­
ment on the tenth day (Sundays excepted) after a bill was presented to the
President, so as to prevent the President from returning the bill with his objec­
tions, the bill would automatically become law on the expiration of the tenth day
and the President would be deprived of his veto power. Congress could hold up
the presentation of legislation to the President until the day it went out of session,
thereby essentially writing the President out of the lawmaking process. The
pocket veto power dealt with this problem by providing that a bill would not
become law if the President failed to sign it and was prevented from returning it
because of a congressional adjournm ent.13
   The pocket veto serves the interest in mutuality because it achieves the best
possible approximation of the shared lawmaking generally contemplated in
Article I, § 7 in those situations in which the presidential veto and congressional
override powers cannot coexist. When the choice is between depriving the
President of his veto or retaining the presidential veto but denying Congress the
power to override, the interest in mutuality is best served by the latter alternative.
Congress has power to avoid any possibility of a pocket veto by arranging to be in
session on the tenth day (Sundays excepted) after a bill is presented to the
President, or by delaying presentation of a bill until a time when it is scheduled to
be in session on the tenth day (Sundays excepted) following. Moreover, even if a

  13 If the P resident signed the bill, it w ould becom e law notw ithstanding the ad journm ent of C ongress Edwards v
United States, 286 U .S 482 (1932), La Abra Silver Mining Co v. United States, 175 U S 4 2 3 (1899)


                                                        141
bill is pocket vetoed, the Congress can simply reenact it when it returns to
session. See The Pocket Veto Case, 279 U .S. at 679 n.6. The President, on the
other hand, in the absence o f a pocket veto would have no means of preventing
C ongress from presenting bills to him on the last day before an adjournment, thus
preventing him from exercising his veto. And when the bill became law, the
President would have no way to repeal it without affirmative action by a majority
of both Houses o f Congress. T h e interest in ensuring that both the President and
C ongress play their assigned roles in lawmaking is thus better served by the
presence of the pocket veto than by its absence.
   Because the pocket veto does not provide for congressional override, it serves
the interest in mutuality only when, at the expiration of the ten-day period
(Sundays excepted) following presidential receipt of a bill: (1) Congress has
adjourned sine die at the end o f its final session and has thereby terminated its
legislative existence; or (2) C ongress has taken some other adjournment and has
failed to provide any effective means by which the President may return a bill
during the adjournment. O nly in these situations is the President unable to
exercise his veto power by returning the bill with objections. In all other
situations, the interest in m utuality is served by an ordinary veto subject to
congressional override and is disserved by a pocket veto.

B. Prompt Reconsideration

    The pocket veto also serves the interest in ensuring the possibility of prompt
congressional reconsideration o f a bill following a presidential veto. In The
Pocket Veto C ase, for example, the C ourt was concerned that delivery to a
congressional agent during an intrasession adjournment would permit the agent
to hold the disapproved bill fo r “ days, weeks or perhaps months, . . . keeping
the bill in the m eantim e in a state of suspended animation . . . and necessarily
causing delay in its reconsideration which the Constitution evidently intended to
avoid.” 279 U .S . at 684. In Wright v. United States, 302 U .S. 583, the Court
em phasized that a three-day recess of one House did not pose the dangers of
“ undue delay,” identified in The Pocket Veto Case, because a mere “ brief,”
“ sh o rt,” and “ tem porary” recess, extending for a “ very limited time only,” did
not create the danger that a vetoed bill “ would not be subject to reasonably
prom pt action by the House.” Id. at 595. And Kennedy v. Sampson recognized
that “ long d elay ” was one of the hazards perceived in The Pocket Veto Case. 511
F.2d at 440.
    The interest in prompt reconsideration does not lend itself to precise quan­
tification. The adjournment at issue in The Pocket Veto Case lasted roughly five
m onths; the adjournm ents at issue in Wright v. United States and Kennedy v.
Sampson were of three and five days, respectively. Between these figures lies a
broad area of uncertainty, in w hich the argum ent favoring the validity of a pocket
veto becom es stronger as the period of adjournment increases.
    The interest in prom pt reconsideration will sometimes reinforce the interest in
m utuality. A final adjournment o f Congress, in which the interest in mutuality is

                                        142
strongly im plicated, will typically continue for a substantial period of time.
Similarly, non-final adjournments in which Congress has appointed agents to
receive presidential m essages, in which the interest in m utuality is not served by
a pocket veto, are also typically of brief duration. On the other hand, non-final
adjournments can extend for a considerable period of time and final adjournments
can be very brief. In some cases, therefore, the interest in mutuality and the
interest in prompt reconsideration will conflict.


C. Public Certainty


   The third interest underlying the pocket veto provision is that of ensuring that
the public is reliably informed about the process of lawmaking. In The Pocket
Veto Case, the Court said that return of a disapproved bill to a congressional agent
during an intersession adjournm ent would not provide “ certain knowledge on the
part of the public as to whether it had or had not been seasonably delivered”
because return of the bill would not 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. . . . ” 279 U .S. at 684-85. In Wright v.
United States, the Court recognized that the pocket veto provision safeguarded
against “ [t]he prospect that . . . the public may not be promptly and properly
informed of the return of the bill with the President’s objections, or that the bill
would not be properly safeguarded or duly recorded upon the journal of the
H ouse,” although in the context of a three-day recess of one House only, the
Court found this danger was “ wholly chimerical.” 302 U .S. at 595. And
Kennedy v. Sampson recognized that the pocket veto provision was designed, in
part, to ensure public certainty. See 511 F.2d at 440.
   The interest in public certainty seems to have factual and legal components.
Factually, there is a strong interest in guaranteeing that the public has full
knowledge of the President’s decision to veto a bill, and of the reasons for that
decision as stated in the President’s objections. Legally, there is a strong interest
in providing the public with certain knowledge whether the bill has becom e law.
Obviously, segm ents of the public affected by a bill will often have a compelling
interest in knowing whether the bill has become a law so that they may structure
their actions in order to comply with the law or to obtain the benefits provided
thereunder.
   As a practical matter, as the Court observed in Kennedy v. Sampson, the
interest in obtaining the facts of a veto will usually be well served by the
availability of “ [m ]odem methods of com m unication,” 511 F.2d at 441. Presi­
dential vetoes are widely reported in the press. The problem of legal uncertainty,
on the other hand, remains pressing today. The need for legal certainty requires
hard-and-fast rules that can easily and clearly be applied in individual cases. In
this respect, the interest in public certainty stands in tension with the interest
in prompt reconsideration since the latter interest increases incrementally in

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strength with the length of an adjournm ent and is not susceptible to resolution
through a clear, non-arbitrary ru le .14
   The interest in public certainty reinforces the interest in mutuality in the case
of final adjournm ents. In the case of non-final adjournments, the interest in
public certainty might occasionally conflict with the interest in mutuality when
there are legal questions regarding whether Congress has designated an agent to
receive presidential messages during its adjournment.
                                                              IV.
   The above analysis provides som e guidance as to the validity of pocket vetoes
in a variety of recurring situations.
A. Final Adjournments
   A pocket veto is certainly appropriate after the final adjournment of a Con­
gress. If it were not, there would be a serious question as to whether the pocket
veto provision o f the Constitution had any meaning at all. That pocket vetoes are
appropriate after a final adjournment was settled in The Pocket Veto C ase15 and
has not been questioned by the subsequent decisions which narrowed The Pocket
Veto Case in other respects. Moreover, in the context of a final adjournment of
Congress all three interests served by the pocket veto provision suggest the
appropriateness of a pocket veto. W ithout a pocket veto, the President could be
denied his proper role in lawmaking by the presentation of numerous bills
towards the end of the final session of Congress (interest in mutuality); final
adjournm ents are often lengthy (interest in prompt reconsideration); and a rule
providing for pocket vetoes in this situation is capable of hard-and-fast applica­
tion (interest in public certainty).
   Accordingly, the President m ay pocket veto bills after the final adjournment of
a Congress without fear that his veto will be ineffective and the bills will become
law.
B. Intersession Adjournments
  We also believe the President may pocket veto bills during intersession
adjournm ents. Adjournments between sessions are typically accomplished by
means of concurrent resolutions16 adjourning the session sine d ie .17 The Presi­
   14 Judge T am m ’s distin ctio n between intrasession and intersession adjournm ents in Kennedy v. Sampson appears
based, largely, on the need for hard-and-fast rules in this area. A sh arp distinction betw een intersession and
intrasession adjournm ents w ould be inappropriate if the only criterion w ere the length o f an adjournm ent, since
w hile intersession ad jo u rn m en ts are also generally relatively lengthy and intrasession adjournm ents relatively brief,
this rs not alw ays the case
   M “ It is also co n ced ed , as w e understand, that the P resident is necessarily prevented from returning a bill by a
final adjournm ent o f th e C o n g ress, since su c h adjournm ent term inates the legislative existence o f the C o n g ress and
m akes it im possible to return th e bill to e ith e r H ouse.” 279 U .S at 681.
   Ih A co ncurrent resolution is required by A rticle I, § 5 , clause 4 , pro h ib itin g eith er H o u se from adjourning for
m ore than three days w ithout the consent o f the other. See note 7 supra
   17 A sine die ad jo u rn m en t is necessary because any adjournm ent to a date certain w ithin the session w ould not
term inate the sessio n . In The Pocket Veto C ase Congress adjourned its first session even though the Senate adjourned
to a date certain w ithin the session rather th a n sine die. T h is w as because o f an unusual situatton in w hich the Senate
agreed to return to p erform non-legislative b usiness, th e consideration o f certain articles o f im peachm ent A fter
m eeting to co n sid e r these artic le s, the S en ate, sitting as a court o f im peach m en t, voted to adjourn sine die See note 6
and accom panying te x t, supra.


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dent’s pocket veto of H .R . 4353 on December 29, 1981, occurred during a sine
die adjournm ent of the first session o f the 97th C ongress, beginning D e­
cember 16, 1981.18 By joint resolution, Congress agreed to reconvene for the
second session on January 2 5 ,1 9 8 2 .19 In this section we confirm the advice given
orally by this Office that the President was authorized to pocket veto H.R. 4353.
   The Pocket Veto Case stands at least for the proposition that a pocket veto is
appropriate during an intersession adjournment. The Court in Wright, dis­
tinguishing The Pocket Veto Case, strongly implied that the case retained force in
the context o f intersession adjournments:

         However real th[ej dangers [envisaged by the Court in The Pocket
         Veto Case] may be when Congress has adjourned and the mem­
         bers of its Houses have dispersed at the end of a session, the
         situation with which the Court was dealing, they appear to be
         illusory when there is a mere tem porary recess.

302 U .S. at 595. Similarly, the court in Kennedy v. Sampson limited its holding to
intrasession adjournments and sharply distinguished these from intersession
adjournments.
    Although we believe, and have frequently advised, that the pocket veto is
appropriate in the context of intersession adjournments, we recognize that
objections could be made to this conclusion based on an analysis of the interests
underlying the pocket veto provision. The interest in mutuality is not particularly
strong in the case of a pocket veto during an intersession adjournment, at least so
 long as the House of origin has appointed an agent to receive presidential
messages. The President could veto the bill and return it, together with his
objections, to the agent who would lay the m atter before the House for recon­
sideration upon its return. Thus the President would not be deprived of his power
to veto legislation. A pocket veto, on the other hand, arguably disserves the
interest in m utuality in this circumstance because it would deprive Congress of its
power to override. The interest in prompt reconsideration is served by a pocket
veto during lengthy intersession adjournments but not by pocket vetoes during
brief intersession adjournments. Thus, pocket vetoes during brief intersession
adjournments are somewhat more vulnerable than those during lengthy interses­
sion adjournm ents. However, we believe that the interest in public certainty
justifies a hard-and-fast rule that pocket vetoes are always appropriate during
intersession adjournm ents. See note 14 supra. The alternative of a rule based
upon the length of an adjournment lacks any constitutional basis. The alternative
of a rule that intersession pocket vetoes are not appropriate could seriously
fru stra te th e in terest in p ro m p t re c o n sid e ra tio n in the case o f len g th y
adjournm ents.


  '* See S . C on. R es 57, 97th C ong -. 1st Sess , 127 C ong. R ec. S15631 (daily ed Dec 16. 1981)
  19 See H J . Res 37 7 , 97lh C ong , 1st Sess , 127 C ong. Rec. H 9638 (daily ed Dec 16, 1981).

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   It is our opinion, therefore, that the President may validly pocket veto bills
during all intersession adjournm ents.20 Accordingly, the President’s pocket veto
of H .R . 4353 was effective and prevented the bill from becoming law.

C. Intrasession Adjournments

   Any decision to pocket veto legislation during an intrasession adjournment
would in all probability be met with an im m ediate court challenge in which the
prospects that the Executive’s position will be sustained are uncertain at best.
Wright v. U nited States rejected the contention that the President could pocket
veto legislation during a three-day intrasession adjournment of the House of
origin. A lthough the Wright decision contained language that could be read as
lim ited to adjournm ents of three days or less, for which the consent of the other
H ouse is not required under A rticle I, § 5, clause 4, the subsequent decision in
Kennedy went further. Kennedy involved, on its facts, a recess of both Houses for
w hich the consent of the other House was required. Moreover, the court in
Kennedy clearly stated that pocket vetoes are never appropriate during intrases­
sion adjournm ents.
   The rule adopted by the C ourt in Kennedy may best be understood by
exam ining the interests underlying the pocket veto provision. The interest in
m utuality is disserved by the pocket veto during intrasession adjournments
because the President is not disabled from returning a bill with his objections so
long as the H ouse of origin has em powered an agent to receive presidential
m essages. The interest in prom pt reconsideration is served only during lengthy
intrasession adjournm ents, which have always been uncommon and which have
becom e increasingly rare in recent years. The interest in public certainty would
be served by a hard-and-fast rule perm itting pocket vetoes during all adjourn­
ments of the H ouse of origin w hich require the consent of the other House under
A rticle I, § 5, clause 4; but the Kennedy and Wright decisions indicate that the
courts are m ore likely to endorse a flat rule against any pocket vetoes during
intrasession adjournments. It could plausibly be argued, however, that the
interest in public certainty is equally served by a rule permitting pocket vetoes
during adjournm ents lasting m ore than a set period of time. For example, the
interest in public certainty would be served by a rule permitting pocket vetoes
during adjournm ents of ten days or more.
   A pocket veto during an intrasession adjournment would be directly contrary
to the language in Kennedy and inconsistent with at least the spirit of Wright. The
interests underlying the pocket veto provision do not clearly resolve the question
w hether pocket vetoes are appropriate during intrasession adjournments. This is
not to say that a pocket veto should never be considered during a session. There is
room to argue that Kennedy was an erroneous decision and that the broad dicta in


   20 P ocket vetoes d u rin g intersession adjournm ents are, we b eliev e, valid w hether o r not the H ouse o f o rigin has
ap p o in ted an agent to receive presidential m essages It appears that the H ouse o f Representatives d id not appoint
such an agent du rin g the intersession ad jo u rn m en t o f the 97th C ongress


                                                           146
Wright should not be followed today. It must be recognized, however, that such an
argument would face an uphill battle in the courts.
   We would recommend that the President not pocket veto legislation during
intrasession adjournm ents unless he is willing to risk an almost certain court
challenge in which he may not be successful. If the President does wish to
exercise his pocket veto, he may wish to choose a bill which would not
appreciably damage his program if it were enacted into law.21 We would advise
that the President not pocket veto bills unless the intrasession adjournm ent
involved extends for a significant period of time— ten days at least— and that both
Houses be in adjournment on the date set for return of the bill.

D. One House Only Adjourns Sine Die

   An intermediate case is that in which one House adjourns sine die and the other
remains in session.22 Read broadly, Wright v. United States would preclude a
pocket veto since that case stated that the adjournment of one House only does not
trigger the pocket veto provision. See 302 U .S. at 587-88. This clearly was not
the basis for the C o u rt’s decision, however, since the Court expressly reserved the
question whether a one-House adjournment lasting for more than three days
would “ prevent” the return of a vetoed bill. Id. at 598. See Kennedy v. Sampson
at 440 n.29.
   We are of the opinion that a pocket veto would be effective when the House of
origin has adjourned sine die at the end of a final session. A similar conclusion is
appropriate when the House o f origin has remained in session and the other
House has adjourned sine die at the end of its final session, since it would be
impossible in this situation for Congress as a whole to override the President’s
veto. Somewhat more difficult is the situation in which the House of origin has
adjourned sine die at the end of the first session and the other House has remained
in session. This Office has advised that either a pocket veto or a return veto would
be appropriate in this situation.23 However, a pocket veto would probably be
ineffective when the House of origin remains in session and the other House
adjourns sine die at the end of the first session.

                                        V. Miscellaneous Problems

  Finally, we address certain miscellaneous problems which have arisen in
connection with the pocket veto.

A. Procedure in Uncertainty

   The President is placed in a somewhat difficult position when he wishes to veto
a bill but is uncertain whether or not he has authority to exercise the pocket veto.

  21 H R. 4353, w hich the P resident pocket vetoed on D ecem ber 29, 1981, is an exam ple o fa g o o d test case. A s the
President noted in his veto statem ent, the m easure “ w ould benefit the creditors o f a single large asset b an k ru p tcy ”
and was in effect an “ effort to co n fe r special relief m the guise of general legislation." 17 W eekly Com p. Pres D oc.
1429 (1981)
  22 D uring the first session o f th e 96th C ongress, for exam ple, the Senate adjourned sine die: the H ouse d id not
adjourn sine die but held pro form a sessions up to and including the date it reconvened for the second sessio n .
  23 M em orandum for H onorable Lloyd N Cutler, Jan 2. 1980


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If the President attem pts a pocket veto, there is always the danger that his action
will be ineffective and that the bill will be held to have become law without his
signature. On the other hand, if h e attempts to return the bill with his objections to
the House of origin, there is the danger that his actions will undermine the
argum ent, which he might wish to make in a future case, that he was “ prevented”
from returning the bill within the meaning of the pocket veto provision.24
   This dilem m a is not fully resolvable; difficulties will persist so long as the
contours of the pocket veto pow er remain indistinct. We believe that the President
would be justified in taking eith er of two courses of action. First, he could
establish a policy of pocket vetoing all bills during final adjournments, interses­
sion adjournm ents, and intrasession adjournments lasting for a set period of time
or longer. This policy would have the virtue of consistency and would frame the
constitutional issues sharply for a court challenge. On the other hand, it must be
recognized that this policy would pose serious litigation risks if the policy was to
pocket veto bills during intrasession adjournm ents of relatively brief duration.
    Second, the President could adopt a case-by-case approach to the problem,
taking account of the degree o f litigation risk and of the importance to the
President’s program that the bill not be enacted. If the bill is unimportant to the
President’s program and the chances of success in court appear high, the better
course may be to pocket veto.25 If the bill is im portant or the chances of success
appear low, the better course may be to return the bill with objections which
explicitly state that the President believes he would be within his right to pocket
veto the legislation.

B. Recess Appointments

   A rticle II, § 2, clause 3 of the Constitution provides: “ The President shall have
Power to fill up all Vacancies that may happen during the Recess of the Senate, by
granting C om m issions which shall expire at the end of their next Session.” The
President’s power to make recess appointm ents has been the subject of some
uncertainty and disagreement w ith Congress in recent years. The recess appoint­
m ent and pocket veto powers are related because of the similarity between the
concepts of a “ recess” of the Senate in which the President can make temporary
appointm ents w ithout obtaining the advice and consent of the Senate and an
“ adjournm ent” o f the House o f origin w hich, if it prevents the return of a bill
with objections, will permit th e President to prevent the bill from becoming law
without subm itting his veto to a possible congressional override. Practice under


   24 A d ifferent problem m ay a n se when th e P resident w ishes to en su re that a bill w hich has been presented to him
less than ten days (S undays excepted) b efo re an adjournm ent b eco m es law. If the President fails to sign the b ill, there
is no g u aran tee that the bill w ill autom atically becom e law upon the expiration o f the tim e period since it may have
been pocket vetoed T h is problem does n o t pose a serious d ilem m a, however, for the President can sim ply sign the
bill w ithin the ten-day p erio d , thus e n su rin g that the bill becom es law w h ile p reserving his argum ents under the
pocket veto provision. It has long been se ttle d that the P resident m ay sign legislation after C ongress has adjourned
See note 13, supra
   25 To avoid an im plication that he has exercised a return rather than a pocket veto, the President should not deliv er
a m essage to the H ouse o f origin stating h is objections if he intends to exercise the pocket veto power.


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the pocket veto provision may therefore have some bearing on an interpretation of
the scope of the recess appointm ent power.
   There are sound reasons to believe that the President has authority to make
recess appointments in situations in which a pocket veto might well be inap­
propriate. First, even if “ recess” and “ adjournm ent” have the same meaning in
the Constitution, this fact would not equate the pocket veto and recess appoint­
ment powers. The decisions holding that the President could not pocket veto bills
during brief intrasession adjournments were not premised on the notion that these
were not “ adjournments” in the constitutional sense; rather, they were bottomed
on the theory that, although they were adjournments, they did not “ prevent” the
return of disapproved bills. Second, it is by no means clear that “ adjournm ent”
and “ recess” do have the same meaning in the Constitution. In common
parlance, the word “ recess” connotes a brief break in continuity, whereas an
“ adjournm ent” may include relatively brief periods but will more typically refer
to a longer or indefinite suspension of activity. It is therefore possible that a very
brief suspension will amount to a “ recess” but not an “ adjournment.”
   Despite the above analysis, the decisions in Wright v. United States and
Kennedy v. Sampson counsel caution in making recess appointments. This Office
has generally advised that the President not make recess appointments, if
possible, when the break in continuity of the Senate is very brief.

C. Nominations

   You have expressed concern that the President may prejudice his ability to
pocket veto legislation if he sends nominations to the Senate during an interses­
sion adjournm ent. We assume that a nomination would be delivered to the
Secretary of the Senate, who is typically designated by that body to receive
messages from the President during adjournm ents.26 The sending of a nomination
to the Senate would not, we believe, seriously prejudice the President’s stand on
the pocket veto. Simply sending over a nomination has no legal significance
unless and until the Senate takes action evidencing its understanding that a
nomination has been validly made. At most, it would evidence the President’s
understanding that the Secretary of the Senate is indeed authorized to receive
presidential messages— a question which is not seriously in doubt in light of the
Wright and Kennedy decisions and the explicit authorization to this effect ty p ­
ically approved by the Senate. However, we can perceive no strong reason to send
nominations to the Senate during intersession adjournments.

                                                              Theodore B. O           lson

                                                          Assistant Attorney General
                                                           Office c f Legal Counsel



  26 See, e.g ., 127 C ong Rec S 15632 (daily ed. D ec. 16, 1981) T h e Secretary o f the Senate m ay have inherent
authority even in the absence of specific authonzation to receive presidential m essages See Wright v United States,
302 U .S at 599 (S tone, J , dissenting in part)


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