FRANK G. BURKE, ACTING ARCHIVIST OF THE UNITED STATES, AND RONALD
GEISLER, EXECUTIVE CLERK OF THE WHITE HOUSE, PETITIONERS V. MICHAEL D.
BARNES, ET AL.

   No. 85-781

   In the Supreme Court of the United States

   October Term, 1985

   On Writ of Certiorari to the United States Court of Appeals for the
District of Columbia Circuit

   Brief for the Petitioners

                       PARTIES TO THE PROCEEDING

   The appellees in the court of appeals were Ray Kline, Acting
Administrator of General Services, and Ronald Geisler, Executive Clerk
of the White House.  Effective April 1, 1975, responsibility for
publishing the Statutes at Large and preserving the laws of the United
States was transferred from the Administrator of General Services to
the Archivist of the United States.  National Archives and Records
Administration Act of 1984, Pub. L. No. 98-497, Section 107(d), 98
Stat. 2291, 1 U.S.C. (Supp. II) 106a, 112.  Accordingly, Frank G.
Burke, Acting Archivist of the United States, has been substituted for
the Acting Administrator of General Services.

   The appellants in the court of appeals were the plaintiffs and
intervenors in the district court.  The plaintiffs were 33 members of
the House of Representatives:  Michael D. Barnes, Gary Ackerman,
Howard Berman, John Conyers, Ronald V. Dellums, Mervyn Dymally, Dennis
Eckart, Robert W. Edgar, Vic Fazio, Ed Feighan, Barney Frank, Robert
Garcia, Samuel Gejdenson, Peter Kostmeyer, Mickey Leland, Mel Levine,
Robert Matsui, Matt McHugh, Edward J. Markey, Barbara A. Mikulski,
George Miller, Bruce Morrison, Mary Rose Oakar, James L. Oberstar,
Richard L. Ottinger, Patricia Schroeder, Paul Simon, Ferdinand St.
Germain, Gerry Studds, Robert Torricelli, Bruce Vento, Ted Weiss, and
Howard Wolpe.  The intervenors were the United States Senate and the
Speaker and Bipartisan Leadership Group of the House of
Representatives:  Thomas P. O'Neill, Jr., Jim Wright, Robert H.
Michel, Thomas S. Foley, and Trent Lott.

            TABLE OF CONTENTS
   Parties to the Proceeding
   Opinions below
   Constitutional and statutory provisions and bill involved
   Jurisdiction
   Questions Presented
   Statement
   Summary of argument
   Argument
      I. This case is moot, because, even if H.R. 4042 became a
          law, its certification requirement expired on September 30,
          1984
     II. Respondents do not have standing to obtain a judicial
          declaration that H.R. 4042 became a law
          A. The separation of powers on which principles of standing
              are based forecloses suits by Congress or its
              Members challenging the actions of Executive
              officials
          B. Members of Congress do not have standing to
              challenge Executive action or inaction on the
              ground that it has "nullified" their votes
          C. The Senate and the Speaker and Bipartisan Leadership
              Group of the House do not have standing to challenge
              the application of the Pocket Veto Clause based on
              alleged injury to the lawmaking powers of Congress
          D. Respondents do not have standing to enforce the
              bill preservation and publication statutes
    III. H.R. 4042 failed to become a law when the President
          did not return it to the House of Representatives within
          ten days of its presentment, because Congress, by its
          adjournment sine die, prevented the return of the bill
          within the meaning of Article I, Section 7, Clause 2
          of the Constitution
          A. The text, origins and purposes of Article I,
              Section 7, establish that H.R. 4042 did not become
              a law
              1. The Pocket Veto Clause
              2. Article I, Section 7, Clause 2 as a whole
          B. This Court's decisions in the Pocket Veto Case
              and Wright v. United States foreclose the argument
              that H.R. 4042 became a law
          C. Practical construction of the Constitution strongly
              supports the conclusion that the return of H.R. 4042
              was "prevent(ed)" by Congress's adjournment
   Conclusion
   Appendix

                            OPINIONS BELOW

   The opinion of the court of appeals (Pet. App. 1a-118a) is reported
at 759 F.2d 21.  The memorandum of the district court (Pet. App.
119a-132a) is reported at 582 F. Supp. 163.

                             JURISDICTION

   The judgment of the court of appeals (Pet. App. 137a-138a) was
entered on August 29, 1984, and a petition for rehearing was denied on
August 7, 1985 (Pet. App. 133a-134a).  The petition for a writ of
certiorari was filed on November 5, 1985, and was granted on March 3,
1986.  The jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).

       CONSTITUTIONAL AND STATUTORY PROVISIONS AND BILL INVOLVED

   1. Article I, Section 5, Clause 4;  Article I, Section 7, Clauses 2
and 3;  and Article III, Section 2, Clause 3 of the Constitution are
reproduced at App., infra, 1a-2a.

   2. Section 728 of the International Security and Development
Cooperation Act of 1981, Pub. L. No. 97-113, 95 Stat. 1555, as amended
by Pub. L. No. 97-233, 96 Stat. 260, and Pub. L. No. 98-53, 97 Stat.
287 (22 U.S.C. (& Supp. II) 2370 note) is reproduced at Pet. App.
141a-145a.

   3. H.R. 4042, 98th Cong., 1st Sess. (1983), is reproduced at App.,
infra, 1a-2a.

                          QUESTIONS PRESENTED

   1. Whether the passage of the expiration date specified in a bill
renders moot this case concerning whether the bill became a law.

   2. Whether individual Members of Congress, the Senate, and the
Speaker and Bipartisan Leadership Group of the House of
Representatives have standing to bring this action against Executive
Branch officials to establish that a bill from which the President has
withheld his approval in reliance upon the "Pocket Veto" Clause of the
Constitution (Art. I, Section 7, Cl. 2), became a law.

   3. Whether the "Pocket Veto" Clause, which provides that a bill not
signed by the President within ten days (Sundays excepted) does not
become a law if "Congress by their Adjournment prevent its Return,"
applies when, on the tenth day after presentment of the bill, Congress
has adjourned the First Session of a Congress sina die.

                               STATEMENT

   1. On November 18, 1983, a bill that had originated in the House of
Representatives, H.R. 4042, 98th Cong., 1st Sess. (Pet. App. 141a),
was presented to the President for his consideration pursuant to
Article I, Section 7, Clause 2 of the Constitution (Pet. App. 4a-5a).
The bill provided that, "until such time as the Congress enacts new
legislation * * * or until September 30, 1984, whichever occurs
first," the requirements of Section 728 of the International Security
and Development Cooperation Act of 1981 /1/ "shall continue to apply"
(Pet. App. 141a).  Section 728, which had expired on September 30,
1983, conditioned United States military aid to El Salvador on
semiannual certification by the President that El Salvador was
achieving progress in protecting human rights (Pet. App. 4a n.6,
141a-145a).

   On the day that H.R. 4042 was presented to the President, the
Senate and the House of Representatives, by concurrent resolution,
ended the First Session of the 98th Congress and adjourned sine die.
Pet. App. 5a;  H.R. Con. Res. 221, 98th Cong., 1st Sess. (1983);  129
Cong. Rec. S16779, S16858, H10469 (daily ed. Nov. 18, 1983).  By a
separate joint resolution, which was passed the same day and approved
by the President as required by Section 2 of the Twentieth Amendment,
Congress specified that the Second Session of the 98th Congress would
commence on January 23, 1984, some nine weeks later.  Pub. L. No.
98-179, Section 2, 97 Stat. 1127;  129 Cong. Rec. H10105 (daily ed.
Nov. 16, 1983);  id. at S16858.  During this period between the two
Sessions, a standing rule of the House authorized the Clerk to
"receive messages from the President and from the Senate at any time
that the House is not in session." H.R. Rule III, Cl. 5, reprinted in
H.R. Doc. 97-271, 97th Cong., 2d Sess. 318 (1983).  The Senate
conferred similar, temporary authority on its Secretary.  129 Cong.
Rec. S17192-S17193 (daily ed. Nov. 18, 1983);  Pet. App. 5a.

   The President neither signed H.R. 4042 nor returned it to the House
of Representatives with his objections.  Instead, on November 30,
1983, the White House issued a statement announcing that the President
had withheld his approval of H.R. 4042 (19 Weekly Comp. Pres. Doc.
1627).  In the President's view, by operation of the "Pocket Veto"
Clause of the Constitution (Art. I, Section 7, Cl. 2), H.R. 4042 had
not become a law because Congress was in adjournment on the tenth day
(excluding Sundays) following presentment of the bill.  Pet. App.
5a-6a.

   2. On January 4, 1984, 33 Members of the House of Representatives
filed this action in the United States District Court for the District
of Columbia, seeking a declaration that H.R. 4042 had become a law and
an injunction requiring petitioners to cause the bill to be published
in the Statutes at Large (Pet. App. 6a, 12a;  see J.A. 16-29).  /2/
The Senate and the Speaker and Bipartisan Leadership Group of the
House of Representatives intervened in support of the plaintiffs (Pet.
App. 2a-3a & n.3, 119a n.1) and, with them, are respondents here.

   The district court granted summary judgment for petitioners and
dismissed the complaint (Pet. App. 119a-132a).  The district court
concluded (id. at 130a) that it had no "license to depart from the
only case directly in point," this Court's decision in The Pocket Veto
Case, 279 U.S. 655 (1929), in which the question presented was
"identical to the question presented by the instant case" (Pet. App.
126a).  Accordingly, the court held that H.R. 4042 did not become law
because, as in The Pocket Veto Case, the President withheld his
approval of the bill following an adjournment sine die of the first
session of a Congress (Pet. App. 130a-131a).

   3. a. A divided panel of the court of appeals reversed (Pet. App.
1a-118a).  The majority first held that, under circuit precedent,
respondents had standing to bring this action (id. at 8a-18a).  The
court relied primarily on its decision in Kennedy v. Sampson, 511 F.2d
430 (D.C. Cir. 1974), which held that a single Senator had standing to
challenge a pocket veto on the ground that it had "nullified his
original vote in favor of the legislation" (Pet. App. 8a).  In the
court's view, the individual Members of Congress in this case allege
an identical injury (id. at 9a).  The court also observed that the
panel in Kennedy v. Sampson had stated that either House of Congress
would have had standing based on the alleged injury to its
participation in the lawmaking process resulting from the President's
reliance on the Pocket Veto Clause (ibid.), and it held that, in this
case, the Senate and Speaker and Bipartisan Leadership Group of the
House have standing on the same theory (ibid.).  /3/

   Turning to the merits, the court of appeals held that Congress's
adjournment sine die did not "prevent (the) Return" of H.R. 4042
within the meaning of the Pocket Veto Clause because each House had
authorized an agent to receive messages from the President following
the adjournment (Pet. App. 20a).  The court acknowledged this Court's
conclusion in The Pocket Veto Case that an adjournment at the end of a
session would prevent the President from returning a bill "'even if'"
Congress had authorized an agent to receive messages (id. at 26a
(quoting 279 U.S. at 684)).  But the court believed that a different
result was justified by the subsequent decision in Wright v. United
States, 302 U.S. 583 (1938), which held that the President's actual
veto of a bill was effective because he had delivered it with his
objections to an agent of the originating House while that House alone
was in a brief intrasession recess (Pet. App. 27a).  Although Wright
involved only a three-day recess, the court noted that it had relied
on Wright in Kennedy v. Sampson to hold that "return is not prevented
by an intrasession adjournment of any length * * * so long as the
originating house arranged for receipt of veto messages" (id. at 30a).
 Based on its view that adjournments sine die at the end of the first
session of a Congress "do not differ in any practical respect from * *
* intrasession adjournments" (id. at 33a), the court extended Kennedy
v. Sampson to all such "intersession" adjournments as well (id. at
38a).

   b. In a lengthy dissent that did not reach the merits, Judge Bork
concluded that respondents lack standing to bring this suit (Pet. App.
47a-118a).  He perceived no distinction between suits alleging injury
to the lawmaking powers of the House and Senate and suits seeking to
require the President faithfully to execute a particular statute (id.
at 56a-57a n.3):  both raise "only a 'generalized grievance' about an
allegedly unconstitutional operation of government" (id. at 65a).
Judge Bork further concluded that the doctrine of congressional
standing is inconsistent with this Court's teaching that "'the law of
Art. III standing is built on a single basic idea -- the idea of
separation of powers'" (id. at 70a (quoting Allen v. Wright, 468 U.S.
737, 752 (1984)), because it would lead to a centralization of power
in the Judicial Branch to lay down prematurely the rules for the other
Branches to follow (Pet. App. 76a-78a).  Accordingly, Judge Bork
concluded, a court should entertain a suit such as this only at the
behest of "a private party who ha(s) a direct stake in the outcome,"
as in The Pocket Veto Case itself (id. at 64a).

   4. The court of appeals entered its judgment on August 29, 1984,
one month after the expiration date specified in H.R. 4042 (Pet. App.
137a-138a), but it did not issue its opinions until April 12, 1985
(see id. at 1a).  Petitioners filed a supplemental petition for
rehearing en banc on May 17, 1985 (see Pet. 9 & n.5), urging (in
addition to arguments on standing and the merits) that the controversy
became moot after September 30, 1984, because even if H.R. 4042 had
become a law, the certification requirement would have expired on that
date.  On August 7, 1985, the court, with Judges Bork, Scalia, and
Starr dissenting, denied the petition for rehearing en banc (Pet. App.
134a-136a).

                          SUMMARY OF ARGUMENT

   I. This case is now moot, because, even if H.R. 4042 did become a
law, the certification precondition it imposed on further military aid
to El Salvador expired on September 30, 1984.  Respondents attempt to
avoid mootness by arguing that they are entitled even now to see H.R.
4042 published as a law in the Statutes at Large.  However,
publication is a consequence that is entirely collateral to the
substantive constitutional question whether H.R. 4042 became a law and
unrelated to respondents' role in the legislative process, which is
the interest they sought to vindicate in this suit.

   II. Respondents do not have standing to bring this suit.  To
recognize a right in Congress or its Members to invoke the power of
the federal courts to resolve a wholly intragovernmental dispute with
the Executive Branch would be inconsistent with the doctrine of
separation of powers on which the law of standing is based.  The
injuries that respondents allege in this case -- the "nullification"
of their individual votes and the frustration of Congress's lawmaking
powers as a result of the President's reliance on the Pocket Veto
Clause -- are merely restatements of respondents' abstract interest in
obtaining what is essentially an advisory opinion.  Moreover, just as
Congress cannot overrule Executive action directly by means of a
legislative veto, it cannot do so indirectly through the intermediary
of the federal courts.

   If the President had admitted that H.R. 4042 became a law but
refused to enforce it, respondents clearly would not have standing to
challenge that decision.  Respondents' claim in this case is no
different, because at bottom it is simply that the President failed to
execute H.R. 4042.  In the absence of a distinct and palpable injury,
Members of Congress, like the members of the public they represent,
have no standing based on a generalized grievance that the Executive
has failed to follow the law.  The Houses of Congress likewise do not
have standing on the basis of their roles in the legislative process.
The Pocket Veto bill becomes a law in the course of the interaction of
the Legislative and Executive Branches in the lawmaking process.  The
failure of a bill to become a law by operation of that Clause
therefore is not a "violation" of the Constitution that causes a
judicially cognizable "injury" to Congress.

   Nor do respondents have standing to enforce an alleged duty by
petitioners to cause H.R. 4042 to be published in the Statutes at
Large.  In this regard, respondents assert no more than a generalized
interest shared by all citizens in the public availability of laws.
Moreover, the statutes imposing a duty on the Archivist to publish
laws were never intended to be a vehicle for the litigation of the
antecedent constitutional question of whether a particular bill in
fact did become a law.

   III. On the merits, this case is squarely controlled by the Court's
unanimous decision in The Pocket Veto Case, 279 U.S. 655 (1929).
There, the Court expressly held that, by operation of the Pocket Veto
Clause, the bill in question "did not become a law," because "the
adjournment of the first session of the * * * Congress * * * prevented
the President, within the meaning of the constitutional provision,
from returning (the bill)" to be reconsidered by Congress (279 U.S. at
691-692).  The court of appeals sought to avoid The Pocket Veto Case
on the ground that the Senate and House now provide for an agent to
receive messages from the President after adjournment.  However, the
Court made clear in The Pocket Veto Case that, "even if authorized by
Congress itself," an attempted return of the bill by means of delivery
to an agent of Congress "would not comply with the constitutional
mandate" (279 U.S. at 684).  As the Court stressed, its construction
of the Clause was supported by "(l)ong settled and established
practice" (id. at 689), "commencing with President Madison's
administration" (id. at 691).

   The court of appeals erred in believing that Wright v. United
States, 302 U.S. 583 (1938), justified its refusal to follow The
Pocket Veto Case.  Wright expressly did not disturb the holding in The
Pocket Veto Case.  The Court also repeatedly stressed in Wright that
the recess in question was not an adjournment by "the Congress," to
which the Pocket Veto Clause refers, but rather a three-day recess
that was taken by only one House and was limited by the constitutional
provision (Art. I, Section 5, Cl. 4) that prohibits an adjournment of
more than three days without concurrent action by both Houses.

   The conclusion that the Pocket Veto Clause is applicable whenever
Congress has adjourned sine die is, in any event, compelled by the
language of the Article I, Section 7, Clause 2, which directly links
the status of a bill to the formal act of adjournment by Congress.
This rule specified by the Constitution cannot be altered by the
internal rules of either House authorizing an agent to receive
messages from the President following an adjournment.  The lawmaking
procedures of which the Pocket Veto Clause is an integral part makes
clear that the Constitution regards the disapproval of a bill by the
President as an important occasion of disagreement between the
political Branches that must be promptly recorded on the journal of
the originating House and be subject to immediate resolution.  To
require the President to deliver a bill to an agent of Congress, with
whom it might languish for weeks or months until Congress reconvenes,
would trivialize the importance the Framers attached to the
President's return of a bill.

                               ARGUMENT

 I. THIS CASE IS MOOT BECAUSE, EVEN IF H.R. 4042 BECAME A LAW, ITS
CERTIFICATION REQUIREMENT EXPIRED ON SEPTEMBER 30, 1984

   As respondents stated in the court of appeals, they did not bring
this action "merely to assert an abstract interest in bill
publication." /4/ Rather, respondents sought a declaration that H.R.
4042 had become a law in order to cause the President to follow the
bill's certification requirement before giving further military aid to
El Salvador.  /5/ The plain and undeniable truth, however, is that the
question whether H.R. 4042 became a law was rendered moot on September
30, 1984 -- more than six months before the court of appeals issued
its opinions -- when the certification requirement imposed by H.R.
4042 was to expire in any event.  Regardless of whether H.R. 4042 ever
was a law, it plainly is not now a law, and no form of judicial relief
can change that fact.  This case therefore has "lost its character as
a present, live controversy of the kind that must exist if (the Court
is) to avoid advisory opinions on abstract propositions of law." Hall
v. Beals, 396 U.S. 45, 48 (1969).

   It is fundamental that a challenge to a statute becomes moot when
the statute is no longer in force.  See, e.g., Kremens v. Bartley, 431
U.S. 119, 128-129 (1977);  Diffenderfer v. Central Baptist Church, 404
U.S. 412, 414-415 (1972);  cf. National Organization for Women, Inc.
(NOW) v. Idaho, 459 U.S. 809 (1982) (challenge to Congress's extension
of ratification period for constitutional amendment became moot when
extended period expired).  Despite respondents' efforts early in the
litigation to obtain a ruling at a time when a judgment in their favor
might have provided meaningful relief (see note 5, supra), the
certification requirement contained in H.R. 4042 expired before the
suit could be completed.  Accordingly, this Court should follow its
"established practice" of "vacat(ing) the judgment below and
remand(ing) with a direction to dismiss." United States v.
Munsingwear, Inc., 340 U.S. 36, 39 (1950).  That course is especially
appropriate here, because this case involves fundamental
constitutional questions that may "'legitimate(ly) (be resolved) only
in the last resort, and as a necessity in the determination of real,
earnest and vital controversy.'" Valley Forge Christian College v.
Americans United for Separation of Church & State, Inc., 454 U.S. 464,
471 (1982) (citation omitted).

   Respondents now argue (J. Br. in Opp. 11-12;  H.R. Br. in Opp.
17-18) /6/ that this case is not moot because they are entitled to see
H.R. 4042 published in the Statutes at Large.  But even if respondents
had standing to request such relief (but see pages 28-30, infra),
their reliance on the purely collateral consequence of publication
plainly is insufficient to save this case from mootness.  Powell v.
McCormack, 395 U.S. 486, 496 (1969).

   Petitioner Burke's failure to publish H.R. 4042 as the dead letter
that it now undeniably is has no effect whatsoever on respondents'
lawmaking powers, the asserted "nullification" of which, they
acknowledge (J. Br. in Opp. 7), was the "underlying injury" on which
this lawsuit was premised.  The bill publication statutes do not
"implement the constitutional design for the legislative process," as
respondents baldly assert (J. Br. in Opp. 4), because the Constitution
nowhere requires that a bill be published in the Statutes at Large in
order for it to be a law.  If the Pocket Veto Clause was inapplicable
despite the adjournment sine die of the First Session of the 98th
Congress, then H.R. 4042 automatically became a law on the tenth day
(Sundays excepted) following its presentment to the President,
notwithstanding the failure to publish it.  By the same token, if
Congress's adjournment sine die prevented the return of the H.R. 4042
within the meaning of that Clause, the bill did not become a law, and
it could not be rendered one by publication.  And either way, H.R.
4042 does not now and never will have any legal effect.

   For this reason, acceptance of respondents' suggestion that they
have a continuing interest in the publication of H.R. 4042 would
convert this case into a "debate( ) concerning harmless, empty
shadows." Poe v. Ullman, 367 U.S. 497, 508 (1961) (opinion of
Frankfurter, J.).  Indeed, on respondents' theory, they could
challenge even the earliest pocket vetoes, which occurred as much as
175 years ago, simply by seeking a formal acknowledgement in the
Statutes at Large that, contrary to the long-accepted view, the bills
involved had become laws.  Although respondents sought declaratory and
injunctive relief requiring publication of H.R. 4042 as a law (J.A.
28-29, 59, 90), that relief had been viewed (until the bill expired)
as merely a formal acknowledgment of the fundamental relief they
desired:  vindication of their roles in the enactment of a law by a
judgment that would cause the President to follow the certification
requirement of H.R. 4042.

   Moreover, respondents' contention that this case is still "live"
because they seek formal recognition of their position that H.R. 4042
once had the force of law is indistinguishable from the argument
rejected by this Court in NOW v. Idaho.  There, the State of Idaho
urged that a challenge to Congress's power to extend the ratification
period for the Equal Rights Amendment was not moot because the
Administrator of General Services, by "refusing to make any official
announcement honoring the rescinding resolutions of other states," had
"damaged the sovereign power and authority of the states" and
"deprived members of the Idaho Legislature of the effectiveness of
their votes." Response of the States of Idaho and Arizona, et al., in
Opposition to the Administrator's Suggestion of Mootness, at 11.  This
Court nevertheless unanimously directed that the case be dismissed as
moot (459 U.S. at 809).  Because such an "official announcement" is
all that respondents seek here, NOW requires that the judgment below
be vacated and the case remanded with instructions to dismiss as moot.
 /7/

 II. RESPONDENTS DO NOT HAVE STANDING TO OBTAIN A JUDICIAL DECLARATION
THAT H.R. 4042 BECAME A LAW

   This case would be nonjusticiable even if it were not moot, because
respondents have from the outset lacked standing to sue.  Respondents
alleged only that the votes of the individual Members in favor of the
bill have been "nullified" (Pet. App. 8a) and that the "lawmaking
powers of the two houses of Congress" have been "injur(ed)" (id. at
9a).  See J.A. 27, 58, 90.  The court of appeals held that these
allegations were sufficient to confer standing on respondents, relying
on a doctrine of congressional standing unique to the District of
Columbia Circuit (ibid.).  /8/ That doctrine, however, ignores the
concern for separation of powers that is the foundation of the law of
standing.  The Constitution does not confer on the Legislative Branch
or its Members any legally cognizable interest, enforceable through
the courts, in the conduct or affairs of a coordinate Branch.

   It is particularly clear that respondents do not have standing in
this case.  At bottom, they complain of nothing more than the
President's failure to regard H.R. 4042 as a law and to follow its
certification provisions.  Such a generalized grievance is not
judicially cognizable.  Members of Congress, like members of the
public they represent who are not specifically injured, lack the
personal stake necessary to challenge the manner in which Executive
Branch officials execute the law.  So, too, do the Senate and House of
Representatives, which are collective bodies "composed" of Senators
and Members (Art. I, Section 2, Cl. 1;  Art. I Section 3, Cl. 1) who
themselves lack standing.

 A. The Separation Of Powers On Which Principles Of Standing Are Based
Forecloses Suits By Congress Or Its Members Challenging The Actions Of
Executive Officials

   In Allen the Court made clear that "the law of Art. III standing is
built on a single basic idea -- the idea of separation of powers" (468
U.S. at 752).  This "basic idea" is rooted in the text of Article III,
which extends the "judicial Power" only to "Cases" and
"Controversies." Art. III, Section 2, Cl. 1.  These terms reflect
historical practices that limited courts to a role that was "'strictly
judicial in its character'" (Muskrat v. United States, 219 U.S. 346,
355 (1911), quoting Gordon v. United States, 117 U.S. 697, 706
(1864)).  /9/ This limitation also is reflected in the reference in
Article III to cases "in Law and Equity", which "was a term well
understood, and of limited signification." Speech of Chief Justice
Marshall to the House of Representatives, 18 U.S. (5 Wheat.) App. 3,
16 (1820).  Cf. Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 405
(1821).  The terms "Cases" and "Controversies" thus were intended to
confine the federal courts to resolving those disputes that have
"assume(d) such a form that the judicial power is capable of acting on
(them)" (Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738,
819 (1824)) and "are traditionally thought to be capable of resolution
through the judicial process" (Flast v. Cohen, 392 U.S. 83, 97
(1968)).

   A central feature of a "case" or "controversy" as so conceived is
that the dispute must be submitted by a "proper and appropriate party"
(Flast, 392 U.S. at 102) in "'such regular proceedings as are
established by law or custom for the protection or enforcement of
rights, or the prevention, redress, or punishment of wrongs'" (Muskrat
v. United States, 219 U.S. at 357, quoting In re Pacific Ry. Comm'n,
32 F. 241, 255 (1887) (Field, J.)).  In order to be a "proper and
appropriate party," the plaintiff must "'show that he personally has
suffered some actual or threatened injury as a result of the
putatively illegal conduct of the defendant'" (Valley Forge, 454 U.S.
at 472, quoting Gladstone, Realtors v. Village of Bellwood, 441 U.S.
91, 99 (1979)), and that he "'stand(s) to profit in some personal
interest'" by a judgment in his favor (Allen, 468 U.S. at 766, quoting
Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 39
(1976)).  In particular, the plaintiff must allege a distinct personal
stake in the outcome, rather than "generalized grievances about the
conduct of government or the allocation of power in the Federal
System" (United States v. Richardson, 418 U.S. 166, 173 (1974), citing
Flast, 392 U.S. at 106).

   Through these requirements, the prerequisite of standing imposes a
"fundamental limit( ) on federal judicial power in our system of
government" (Allen, 468 U.S. at 750).  See also Richardson, 418 U.S.
at 188 (Powell, J., concurring) ("Relaxation of standing requirements
is directly related to the expansion of judicial power.").  It assures
that legal questions will be resolved "in a concrete factual context
conducive to a realistic appreciation of the consequences of judicial
action";  and it "reflects a due regard for the autonomy of those
persons likely to be most directly affected by a judicial order," so
that the judicial power is "'more than a vehicle for the vindication
of the value interests of concerned bystanders'" (Valley Forge, 454
U.S. at 472-473, quoting United States v. SCRAP, 412 U.S. at 669, 687
(1973)).  Standing requirements of course take on added significance
when an exercise of judicial power would "affect( ) relationships
between the coequal arms of the National Government," because
"'repeated and essentially head-on confrontations between the life
tenured branch and the representative branches of government will not,
in the long run, be beneficial to either'" (Valley Forge, 454 U.S. at
473-474, quoting Richardson, 418 U.S. at 188 (Powell, J.,
concurring)).

   There is an irreconcilable conflict between the principles of
separated powers that Article III embodies and a case, such as this
one, in which a court is asked to referee an intragovernmental dispute
between the political Branches, and to do so in the absence of any
claim by a private party that he has been injured or that he stands to
benefit as a result of the court's decision.  Compare Chadha, 462 U.S.
at 935-936.  The injury alleged here -- a "nullification" of the votes
of individual Members and the impact on the "lawmaking powers" of
Congress resulting from the President's determination that H.R. 4042
failed to become a law -- is not an injury in the conventional Article
III sense.  Instead, it is merely a restatement of respondents'
disagreement with the President's interpretation of the Pocket Veto
Clause of the Constitution.  Neither the President nor Congress (or
its Members) could unilaterally obtain an advisory opinion from the
federal courts with respect to whether H.R. 4042 became a law.  See
Correspondence of the Justices, reprinted in 3 The Correspondence and
Public Papers of John Jay 486-489 (H. Johnston ed. 1891);  Muskrat,
219 U.S. at 354.  That issue is no more suitable for judicial
resolution in its present posture merely because the Senate and some
Members of the House have put their request in the form of a complaint
and named as defendants two officials of the other political Branch
who happen to take a contrary view of the constitutional issue.  /10/
The Framers did not contemplate that the federal courts would, in this
manner, assume "a role of continual and pervasive intrusiveness into
the relationships of the branches" and "step directly between the
other branches (to) settle disputes, presented in the abstract, about
powers of governance." Pet. App. 75a (Bork, J., dissenting).  /11/

   There are, moreover, special factors defining the role of Congress
under the Constitution that counsel against a holding that Congress
has a legally cognizable interest and is a "proper and appropriate
party" to sue for a declaration concerning the actions of the
Executive or the consequences of Congress's actions under the
Constitution.  It is the "legislative Powers" that Article I, Section
1 vests in Congress, and those powers consist of the "'authority to
make laws'" (Buckley v. Valeo, 424 U.S. 1, 139 (1976), quoting
Springer v. Philippine Islands, 277 U.S. 189, 202 (1928)).  /12/ In
providing for the separation of powers and a system of checks and
balances, the Framers sought "to assure, as nearly as possible, that
each branch of government would confine itself to its assigned
responsibility." Chadha, 462 U.S. at 951.  Consistent with this plan,
Congress's "powers are confined to legislative duties, and restricted
within prescribed limits." Gordon v. United States, 117 U.S. at 705.

   Congress's ability to assert its will in ways that affect the
operation of the other Branches is therefore confined to the powers
and means of exercising those powers that are provided for in the
Constitution.  Specifically, because of concern that Congress would
aggrandize itself at the expense of the other Branches, the Framers
required that all actions by Congress that have "the purpose and
effect of altering the legal rights, duties and relations of * * *
Executive Branch officials (and others) outside the Legislative
Branch" (Chadha, 462 U.S. at 952) must be in the form of a duly
enacted law.  See generally id. at 945-951.  Congress's
"(d)isagreement" with the Executive Branch therefore "involves
determinations of policy that Congress can implement in only one way:
bicameral passage followed by presentment to the President" (id. at
954-955).  Just as Congress cannot overrule Executive action directly
by means of a legislative veto, Congress cannot accomplish the same
result indirectly by invoking the assistance of the federal courts to
prosecute its disagreement with the Executive.  See The Federalist No.
48, at 308 (Madison) (Rossiter ed. 1966) (none of the departments
"ought to possess, directly or indirectly, an overruling influence
over the others in the administration of their respective duties").

   The Constitution is structured to give each Branch specified powers
-- checks and balances -- in relation to the other Branches as a means
of confining each to its respective authority.  The Federalist No. 51,
at 320 (Madison).  But the Court has construed these express
constitutional provisions for the involvement by one Branch in the
affairs of another to be exclusive.  See, e.g., Chadha, 462 U.S. at
955-956;  Buckley, 424 U.S. at 127;  Myers v. United States, 272 U.S.
52, 116 (1926);  Kilbourn v. Thompson, 103 U.S. 168, 191 (1880).
Accordingly, and in light of the other resources available to Congress
in its legislative and oversight capacities (see Chadha, 462 U.S. at
954-955 & nn.18, 19;  Laird v. Tatum, 408 U.S. 1, 15 (1972)), Congress
and its Members should not be accorded a wholly unaccustomed right,
heretofore unrecognized by this Court, to invoke the offices of the
federal courts to resolve a dispute with the Executive Branch.  As
this Court has held, the "power to seek judicial relief * * * is
authority that cannot possibly be regarded as merely in aid of the
legislative function of Congress.  A lawsuit is the ultimate remedy
for a breach of the law, and it is to the President, and not to the
Congress, that the Constitution entrusts the responsibility to 'take
Care that the Laws be faithfully executed.' Art. II, Section 3."
Buckley, 424 U.S. at 138.  /13/

   In sum, the standing decision of the court of appeals in this case
violates the doctrine of separation of powers in two related and
mutually reinforcing respects.  First, it fails to adhere to "the
proper -- and properly limited -- role of the courts in a democratic
society" (Warth v. Seldin, 422 U.S. 490, 498 (1975)) and the
fundamental principle that whether a plaintiff has "suffered
cognizable injury" (Valley Forge, 454 U.S. at 474) "must be answered
by reference to the Art. III notion that federal courts may exercise
power only 'in the last resort, and as a necessity.'" Allen, 468 U.S.
at 752, quoting Chicago & Grand Trunk Ry. v. Wellman, 143 U.S. 339,
345 (1892).  Second, it erroneously attributes to Congress a legally
cognizable interest, capable of being implemented through the agency
of the federal courts, in overseeing the manner in which the Executive
Branch interprets and executes the law.  /14/

 B. Members Of Congress Do Not Have Standing To Challenge Executive
Action Or Inaction On The Ground That It Has "Nullified" Their Votes

   As shown above, the court of appeals erred in recognizing a general
right of Congress (or its Members) to bring suit to vindicate an
asserted interest in obtaining a particular interpretation of the
Constitution.  But even if congressional standing might properly be
recognized under some circumstances, respondents in this case lack
standing for yet another, albeit related, reason:  respondents alleged
injury is no more than a generalized grievance arising from the
President's failure to follow the certification requirements that
would have been imposed if H.R. 4042 became a law.  Especially when
asserted by Congress or its Members, such a generalized grievance is
not one "'traditionally thought to be capable of resolution through
the judicial process'" (Allen, 468 U.S. at 752, quoting Flast, 392
U.S. at 97).  See Pet. App. 81a-89a (Bork, J., dissenting).

   The individual Members of Congress argued below that the
President's position that H.R. 4042 was not a validly enacted law, and
the resulting failure to publish the bill as a law, had "nullified"
their votes in favor of the bill.  See Pet. App. 8a-9a;  J.A. 27.  At
bottom, however, this argument is nothing more than a claim that the
President has failed to execute the law.  The individual respondents
do not and could not claim that they were denied an opportunity to
vote in Congress.  Their votes were fully counted and, indeed, were
fully effective in securing the passage of H.R. 4042 and its
presentment to the President.  Thus, respondents' argument can only be
that their votes have been "nullified" because the President did not
adhere to the requirements of H.R. 4042 after it passed both Houses.

   Once this is understood, the court of appeals' error becomes
manifest.  If the President had admitted that H.R. 4042 had become a
law but refused to enforce it, individual Members of Congress plainly
would lack standing to sue.  Members of Congress are not injured in a
manner distinct from citizens generally as a result of the President's
alleged failure to enforce a law.  See Pet. App. 68a (Bork, J.,
dissenting) ("(T)he Framers * * * did not conceive of the powers of
elected representatives as apart from the powers of the electorate.").
 Nor is there anything in the role established for Congress by the
Constitution that confers on either House or the Members of which they
are composed a special right to ensure, outside of the political
process, that laws passed by Congress are enforced.  See Ameron, Inc.
v. United States Army Corps of Engineers, 787 F.2d 875, 888 (3d Cir.
1986) (congressional intervenores "lack their own standing to obtain
an injunction forcing compliance with the law," because "Congress's
interest in its enforcement is no more than that of the average
citizen");  AFGE v. Pierce, 697 F.2d 303, 305 (D.C. Cir. 1982) ("Any
interest that a congressman has in the execution of laws would seem to
be shared by all citizens equally.").  And, of course, a citizen who
asserts merely an "abstract injury in nonobservance of the
Constitution" or federal statutes lacks standing to sue.  Schlesinger
v. Reservists Committee to Stop the War, 418 U.S. 208, 223 n.13
(1974).  Diamond v. Charles, No. 84-1379 (Apr. 30, 1986), slip op. 9;
Valley Forge, 454 U.S. at 482-483;  Allen, 468 U.S. at 754;
Reservists, 418 U.S. at 217;  Ex parte Levitt, 302 U.S. 633 (1938).
/15/

   In other words, Members of Congress do not have any continuing,
quasi-proprietary stake in a bill after it has passed out of the
domain of the Legislative Branch.  At that point, any official
relation of the Federal Government to the measure devolves upon the
other two Branches.  La Abra Silver Mining Co. v. United States, 175
U.S. 423, 454 (1899).  If the bill becomes a law, it is the
President's responsibility under Article II, Section 3 to "take Care"
that it is "faithfully executed" and the Judiciary's responsibility to
interpret the law in a case properly brought before it.  But no
justiciable case or controversy is presented by the manner of the
Executive's implementation unless a plaintiff alleges a distinct and
palpable injury flowing from the Executive's action or inaction.
Allen, 468 U.S. at 751.  /16/

   The consequences of recognizing congressional standing to challenge
whether the President is properly executing the laws would be
especially untoward.  In the absence of private injury, the
Constitution has left "much of the allocation of powers * * * to
political struggle and compromise." Pet. App. 79a (Bork, J.,
dissenting).  Recognition of congressional standing to assert the type
of injury claimed by respondents here would allow, and indeed
encourage, Members of Congress to circumvent the "intensely practical"
process of "compromise and accommodation" that is essential to the
day-to-day "business of government." Id. at 78a.  /17/ Instead,
federal judges, who often are "not familiar with the very real and
multitudinous problems of governing" (ibid.), would routinely be
called upon to resolve disputes between the political branches.  And
they would be required to do so before a law's "real effects upon real
persons in real circumstances" (ibid.) could be known.

   Moreover, even if Congress or one of its Houses might have such
standing, individual Members of Congress clearly could not.  This
follows directly from Bender v. Williamsport Area School District, No.
84-773 (Mar. 25, 1986).  There, the Court held that "members of
collegial bodies do not have standing to perfect an appeal the body
itself has declined to take." Slip op. 9-10.  Under Bender, if there
is a judicially cognizable injury to Congress at all, only that body
may assert it.  See United States v. Ballin, 144 U.S. 1, 7 (1892)
("Power is not vested in any one individual, but in the aggregate of
the members who compose (the House of Congress) * * * .").  This clear
rule best comports with the separation of powers, because it does not
enmesh the judiciary in intrusive and essentially political inquiries
into whether a particular Member is faithfully advancing the
considered views of the Legislative Branch.  Cf. Goldwater v. Carter,
444 U.S. 996, 997-998 (1979) (Powell, J., concurring).  This rule also
reflects the reality that, upon passage of a bill, the vote of an
individual Member merges into the vote of the House as a whole, as
attested by the signature of the responsible officer of that House.
Field v. Clark, 143 U.S. 649, 672 (1892).

 C. The Senate And The Speaker And Bipartisan Leadership Group Of The
House Do Not Have Standing To Challenge The Application Of The Pocket
Veto Clause Based On Alleged Injury To The Lawmaking Powers Of
Congress

   The intervenor-respondents alleged below that the President's
reliance on the Pocket Veto Clause in his decision not to give effect
to H.R. 4042 deprived the Senate and House of their "constitutional
role in the enactment of legislation" (J.A. 58, 90).  However, it is
immaterial that respondents have chosen to describe their injury in
terms of the lawmaking provisions of Article I, Section 7, rather than
the President's duty faithfully to execute the laws.  Whatever form of
words respondents might choose, this suit is in all respects
equivalent to one expressly challenging the President's execution of
the laws.

   In any event, neither Article I, Section 7 in general nor its
Pocket Veto Clause in particular creates any judicially cognizable
interests on the part of Congress.  Article I, Section 7, by
"prescrib(ing) and defin(ing) the respective functions of the Congress
and of the Executive in the legislative process" (Chadha, 462 U.S. at
945), merely establishes a "rule of recognition" /18/ for identifying
those measures that have become laws of the United States.
Accordingly, the failure by either Congress or the Executive to invoke
its respective prerogatives under the Constitution's "finely wrought"
lawmaking procedures (Chadha, 462 U.S. at 951) is not a "violation" of
the Constitution.  It follows that such a failure by one Branch does
not give rise to a constitutionally based "injury" to the other that
may be redressed by the courts.  /19/

   In the present context, for example, the only consequence of the
operation of the self-executing procedures in Article I, Section 7 is
that H.R. 4042 either did nor did not become a law, depending upon
whether its return to the originating House was prevented by
Congress's adjournment.  In either event, the only legal significance
of the operation of Article I, Section 7 is for persons who would have
rights or duties under the bill if it did become a law.  By contrast,
neither alternative has an impact on Congress or its Houses and
Members.  Their role in the legislative process as regards H.R. 4042,
which extended only to the presentment of the bill to the President,
remains fully effective and effectuated, because any failure of H.R.
4042 to become a law is attributable to circumstances occurring after
presentment.  And Congress likewise is unimpeded in the continued
performance of its legislative duties as regards other bills.
Congress therefore suffers no "'distinct and palpable'" injury (Allen,
468 U.S. at 751) as a result of the President's determination that
H.R. 4042 did not become a law, and Congress does not "'stand to
profit in some personal interest'" (id. at 766) as a result of a
judicial resolution of that question.  Accordingly, Congress has no
standing to bring an action against Executive Branch officials to
litigate that issue.

   Instead, whether any particular bill became a law notwithstanding
the President's withholding of his approval of it is a question
properly answered by a court only in an action brought by a private
person who has a direct stake in the status of the bill.  See Diamond,
slip op. 7.  The mere fact that some bills, such as H.R. 4042, might
not affect private rights in a manner that would give any private
person standing to obtain a judicial declaration of their validity is
plainly insufficient to confer standing on Congress.  "The assumption
that if respondents have no standing to sue, no one would have
standing, is not a reason to find standing." Reservists, 418 U.S. at
227;  Valley Forge, 454 U.S. at 489.  /20/

 D. Resondents Do Not Have Standing To Enforce The Bill Preservation
And Publication Statutes

   Respondents now argue (J. Br. in Opp. 5-7, 11-12;  H.R. Br. in Opp.
17-18) that, independent of their alleged interest in the substantive
validity of H.R. 4042, they have standing to enforce the statutes
providing for the preservation and publication of bills that have
become laws.  See 1 U.S.C. (Supp. II) 106a, 112, 113.  Respondents
obviously make this argument in an effort to avoid mootness, now that
H.R. 4042 can have no legal effect in its own right.  But respondents'
efforts are unavailing, because they clearly do not have standing to
seek a judicial order requiring the preservation and publication of
H.R. 4042 as a law.  Respondents have nothing more than a "generalized
interest" (Reservists, 418 U.S. at 217), shared by all citizens, in
the availability of public notice of the laws of the United States.
See Kissinger v. Reporters Committee for Freedom of the Press, 445
U.S. 136, 149 (1980).  That interest is insufficient to confer
standing, especially because respondents received actual notice of
H.R. 4042 by virtue of their participation in the legislative process.
 See Lyng v. Payne, No. 84-1948 (June 17, 1986), slip op. 11 n.6.

   Respondents argue (J. Br. in Opp. 5-7), however, that Members of
Congress are special beneficiaries of the publication statutes and
that they therefore have an interest distinct from that of the public
generally that entitles them to bring an action to compel publication.
 Respondents rely (id. at 5-6) on a statute passed by the First
Congress, the predecessor to the present 1 U.S.C. (Supp. II) 106a. Act
of Sept. 15, 1789, ch. 14, Section 2, 1 Stat. 68;  see Rev. Stat.
Section 204 (1875 ed.) In respondents' view, the provision in this
1789 statute for the delivery of a printed copy of a law to Senators
and Representatives establishes that they have a sufficient stake in
the publication of a law to permit them to bring this action to have
H.R. 4042 declared a law and published as one under the statutes
administered by the Archivist.  /21/

   Respondents fail to point out that the provision of the 1789 Act
and related provisions expressly directing that copies of bills be
furnished to Members of Congress /22/ have been repealed as "obsolete"
and "archaic." Act of Dec. 28, 1874, ch. 9, Section 2, 18 Stat. 294
(see Cong. Globe, 43d Cong., 2d Sess. 226 (1874) (remarks of Sen.
Edmunds));  Act of July 10, 1952, ch. 632, Sections 2, 7, 66 Stat.
540, 541 (see S. Rep. 1714, 82d Cong., 2d Sess. 1, 2 (1952).
Nevertheless, we may assume for present purposes that if the Archivist
withheld from a Member of Congress a copy of a bill that had become a
law and been received by the Archivist, the Member would have standing
to bring an action to compel release of a copy to him (cf. 5 U.S.C.
552(a)(4) (FOIA)) -- although respondents surely could obtain a copy
of H.R. 4042 if that were all they wanted.  See, e.g., App., infra,
2a.  What respondents have formally requested, however, is not a copy
of the bill, but its publication.

   But of course, at bottom, respondents seek far more than the mere
enforcement of any of the statutory duties of the Archivist under 1
U.S.C. (Supp. II) 106a, 112 and 113 to preserve, publish, and make
available copies of bills that have become laws.  They seek to
litigate the constitutional question of whether H.R. 4042 ever became
a law.  The ministerial bill preservation and publication statutes
administered by the Archivist were never intended to create a right of
action by Congress or anyone else to litigate that question.  /23/
Furthermore, as we have explained above (see pages 13-20, supra).
Congress and its Houses and Members would not have any standing under
Article III to bring such a suit even if Congress had purported to
authorize it.

 III. H.R. 4042 FAILED TO BECOME A LAW WHEN THE PRESIDENT DID NOT
RETURN IT TO THE HOUSE OF REPRESENTATIVES WITHIN TEN DAYS OF
PRESENTMENT, BECAUSE CONGRESS, BY ITS ADJOURNMENT SINE DIE, PREVENTED
THE RETURN OF THE BILL WITHIN THE MEANING OF ARTICLE I, SECTION 7,
CLAUSE 2 OF THE CONSTITUTION

   For the reasons stated in Points I and II, supra, the judgment of
the court of appeals should be vacated and the case remanded with
directions to dismiss, because the case is moot and because
respondents do not in any event have standing to bring this suit.  If
the Court rejects these submissions, the judgment of the court of
appeals should be reversed on the merits.

   The court of appeals clearly erred in holding that H.R. 4042 became
a law when the President did not return it with his objections to the
House of Representatives within ten days (Sundays excepted) after it
was presented to him.  By the time that ten-day period elapsed,
Congress had ended the First Session of the 98th Congress and
adjourned sine die.  Accordingly, by operation of the last portion of
Article I, Section 7, Clause 2 of the Constitution -- commonly known
as the "Pocket Veto" Clause -- H.R. 4042 failed to become a law
because "the Congress by their Adjournment prevent(ed) its Return."
This conclusion is compelled by the unanimous decision in The Pocket
Veto Case, 279 U.S. 655 (1929), which involved the precise issue
presented in this case.  And despite the court of appeals' strained
effort to read Wright v. United States, 302 U.S. 583 (1938), as
altering the rule established in The Pocket Veto Case, that later
opinion only affirms the reasoning of The Pocket Veto Case.

 A. The Text, Origins And Purposes Of Article I, Section 7 Establish
That H.R. 4042 Did Not Become A Law

   As this Court observed in Chadha, "(e)xplicit and unambiguous
provisions of the Constitution prescribe and define the respective
functions of the Congress and of the Executive in the legislative
process" (462 U.S. at 945).  Those functions are principally set forth
in the detailed provisions of Article I, Section 7, Clause 2, which
were "finely wrought and exhaustively considered" by the Framers (462
U.S. at 951).  The final portion of that Clause, at issue here,
addresses the situation in which Congress has rendered itself
unavailable to participate further in the legislative process when the
ten-day period that the Constitution affords the President to review a
bill expires.  If the President does not sign the bill, the
Constitution deems Congress's inability to reconsider it to be the
termination of the legislative process with respect to the bill, which
then automatically fails of enactment.  As we explain below, this
conclusion is supported by the text, origins, and purposes of the
Pocket Veto Clause, and of the lawmaking procedures in Article I,
Section 7 of which that Clause is a part.

                       1. The Pocket Veto Clause

   a. A straightforward reading of the constitutional text establishes
that H.R. 4042 did not become a law.  The final sentence of Article I,
Section 7, Clause 2 provides that "(i)f any Bill shall not be returned
by the President (to the House in which it originated) within ten Days
(Sundays excepted) after it shall have been presented to him, the Same
shall be a Law, in the same Manner as if he had signed it, unless the
Congress by their Adjournment prevent its Return, in which Case it
shall not be a Law." By the expiration of the ten-day period after
H.R. 4042 was presented to the President, Congress had ended the First
Session of the 98th Congress.  That adjournment prevented the
President from returning the bill to be reconsidered by the House of
Representatives.

   Contrary to the court of appeals' view (Pet. App. 30a-31a, 36a,
46a), nothing in the constitutional text suggests that H.R. 4042 did
become a law, despite the President's failure to approve it and
Congress's adjournment, merely because the Rules of the House
authorized the Clerk to receive messages from the President when the
House was not in session.  The Pocket Veto Clause speaks in terms of
whether Congress's "Adjournment prevent(ed) (the bill's) Return,"
thereby directly linking the status of the bill to the formal act of
adjournment by Congress.  The significance that the Constitution
attaches to the act of adjournment at the moment of its occurrence is
unaffected by whatever responsibilities an officer of one House might
have after the adjournment.

   b. The irrelevance of the Clerk's authority is confirmed by the
status under the Constitution of the rules of one House of Congress.
The Constitution provides that "Each House may determine the Rules of
its Proceedings" (Art. I, Section 5, Cl. 2), and each House's rules
properly may define the powers of its officers in connection with
"internal matters" (Chadha, 462 U.S. at 956 n.21).  But such rules
cannot amend the provisions of the Constitution that govern the
external relations of Congress with the President in the legislative
process.  Cf. United States v. Ballin, 144 U.S. 1, 5 (1892).  The
Legislative Branch addresses the President in that process only by
concurrent action of the House and Senate.  In addition, as the Court
held in Chadha, the constitutional requirement of bicameralism
affirmatively bars one House from taking action that affects the legal
rights and duties of persons outside the Legislative Branch (462 U.S.
at 948-951, 952).  Whether the return of a bill was "prevent(ed)"
within the meaning of the Constitution determines whether that bill
has become a law and, in this case, the nature of the responsibilities
of the President and other Executive officials.  Accordingly, under
Chadha, whether a bill has failed to become a law by operation of the
Pocket Veto Clause must depend upon whether Congress withdrew from the
legislative process by bicameral action of the House and Senate, as
the Constitution requires for any adjournment of more than three days
(Art. I, Section 5, Cl. 4), not on the unicameral action of one House
in authorizing an agent to receive messages following such an
adjournment.  This bicameralism requirement is reflected in the Pocket
Veto Clause's reference to an adjournment by "the Congress," which
consists of the House and the Senate.  See Art. I, Section 1;  Wright,
302 U.S. at 585-587;  Chadha, 462 U.S. at 945.

   c. In addition to adhering to the rule of bicameralism, the Pocket
Veto Clause also incorporates the fundamental precept that legislative
action requires the interaction of Congress and the President, while
maintaining the autonomy of each.  The significance of these
principles is made manifest by Article I, Section 7, Clause 2, which
reinforces the presentment requirement that the Pocket Veto Clause
implements.  Clause 3 provides that "(e)very Order, Resolution, or
Vote to which the Concurrence of the Senate and House of
Representatives may be necessary (except on a question of adjournment)
shall be presented to the President of the United States" (emphasis
added).  See Chadha, 462 U.S. at 947.  The emphasized exception was
intended to afford the Senate and House independence from the
President (although not from each other) in transacting the business
of the Legislative Branch.  See 1 J. Story, Commentaries on the
Constitution of the United States Sections 843-844, at 582-583 (3d ed.
1858).  /24/ But the Framers prescribed a reciprocal independence for
the President by assuring, through the Pocket Veto Clause, that his
status and participation in the legislative process would be respected
if Congress did adjourn.  Although the President cannot prevent
Congress from adjourning before he has completed his review of a bill,
the consequence of Congress's premature withdrawal from the
legislative process is that the bill will fail if the President does
not sign it.

   For these reasons, as the Court recognized in The Pocket Veto Case,
the term "pocket veto" is a misnomer, and the notion that the
operation of the Pocket Veto Clause is equivalent to the exercise of
an absolute veto by the President "involves a misconception of the
reciprocal rights and duties of the President and of Congress and of
the situation resulting from an adjournment" (279 U.S. at 676).  The
terminology and the concepts it embodies both rest on the erroneous
premise that the failure of a bill "is necessarily due to the
disapproval of the President and the intentional withholding of the
bill from reconsideration" (id. at 676-677).  In truth, "the failure
of the bill to become a law cannot properly be ascribed to the
disapproval of the President -- who presumably would have returned it
before the adjournment if there had been sufficient time in which to
complete his consideration and take such action -- but is attributable
solely to the action of Congress in adjourning before the time allowed
the President for returning the bill had expired" (id. at 678-679).
See also H.R. Rep. 93-1021, 93d Cong., 2 Sess. 2 (1974) ("A pocket
veto is something the Congress causes.  It is the result that occurs
when Congress waives its right to reconsider legislation when its
adjournment prevents the return of a bill.").  /25/

   The interpretation of the Pocket Veto Clause required by its plain
language thus implements the principles of bicameralism and autonomy
immanent in the congressional prerogative of "adjournment" and the
shared responsibilities of the political Branches in the legislative
process.  The Constitution simply deems an adjournment by Congress to
be an event that breaks for formal relationship between the
Legislative and Executive Branches in the lawmaking process.  Just as
an adjournment prevents the President from dealing directly with
Congress on any other matter until it reconvenes, an adjournment
prevents him from returning a bill to Congress for reconsideration.
In this case, even if H.R. 4042 and the President's objections thereto
had been delivered to the Clerk of the House after Congress adjourned
sine die, the President's formal communication to the House itself
could not have been accomplished until the Clerk delivered the bill
and the President's objections to the House when Congress commenced
the Second Session of the 98th Congress some nine weeks later.  The
inability of the President to exercise his prerogative of
communicating his objections directly to the House, sitting as one
component of a co-equal Branch, was by no means cured by the fact that
the House authorized its Clerk to receive messages while the House was
not in session.

   d. In practical terms, the effect of the President's delivery of a
bill to the Clerk for subsequent delivery to the House would be the
same as if the President simply retained the bill and returned it
directly to the House when Congress reconvened.  It is significant,
however, that the Constitutional Convention specifically rejected a
proposal to require the President to follow the latter course.  An
initial draft of the Clause considered by the Committee of Detail
provided that a bill that was not returned by the Executive within the
prescribed period after presentment would become a law "unless the
Legislature, by their Adjournment, prevent its Return;  in which Case
it Shall be returned on the first Day of the next Meeting of the
Legislature." 2 Farrand 162 (emphasis added).  /26/ But the Committee
revised the Clause to provide that the bill "shall not be a law" if
Congress by its adjournment prevented the return (id. at 181), and the
Convention adopted the Clause in that form (id. at 296, 302).  The
records of the Convention do not disclose the reasons for this change.
 However, the most plausible explanation clearly is that the Drafters
were unwilling to permit the status of an unsigned bill to remain
uncertain until such time as Congress might reconvene, and that they
chose instead to provide for that status to be resolved definitively
when Congress has adjourned.  The decision of the court of appeals
fails to respect this deliberate choice by the Framers.

             2. Article I, Section 7, Clause 2 As A Whole

   The Pocket Veto Clause of course is not an isolated provision of
the Constitution;  it is an integral element of the "step-by-step,
deliberate and deliberative process" prescribed in Article I, Section
7 for the enactment of legislation (Chadha, 462 U.S. at 959).  The
text and purposes of Article I, Section 7 unambiguously establish that
the Framers regarded the President's review of bills as a "momentous
duty" (The Pocket Veto Case, 279 U.S. at 677) and that the disapproval
of a bill by the President therefore was to be regarded as a momentous
occasion of disagreement between the political Branches.  See Chadha,
462 U.S. at 946-948;  The Federalist No. 73, at 442-446 (Hamilton).
The formal return of a bill by the President is the mechanism adopted
in the Constitution for bringing about a resolution of that
disagreement.  An adjournment by Congress "prevent(s)" the return of a
bill to Congress within the meaning of the Constitution because it
prevents Congress from resolving the disagreement by either sustaining
the President's disapproval or repassing the bill over his objections.
 The Pocket Veto Clause therefore specifies an alternative resolution
in such circumstances, by declaring that the bill "shall not be a
Law." The courts of appeals' holding that the return of a bill may be
accomplished by delivery to an agent of the House, where it may
languish for weeks or months, completely ignores these fundamental
principles.

   The special procedures that the Framers prescribed in the event of
the President's disapproval of a bill attest to the significance of
the occasion.  Article I, Section 7, Clause 2 provides that if the
President does not approve a bill, "he shall return it, with his
Objections, to that House in which it shall have originated, who shall
enter the Objections at large on their Journal, and proceed to
reconsider it";  if two-thirds of that House then agree to pass the
bill, it "shall be sent" to the other House, by which "it shall
likewise be reconsidered";  and if the bill also is approved by
two-thirds of the second House, "it shall become a Law" (emphasis
added).  Moreover, "in all such Cases the Votes of both Houses shall
be determined by Yeas and Nays, and the Names of the Persons voting
for and against the Bill shall be entered on the Journal of each House
respectively." As this Court has observed, "it was plainly the object
of (these) provision(s) 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
prompt knowledge as to the status of the bill, but should enable
Congress to proceed immediately with its consideration" (The Pocket
Veto Case, 279 U.S. at 684-685;  see also Wright, 302 U.S. at 590,
595).  /27/ The effect, then, is to require that the disagreement
between the President and Congress be noted in the official record of
legislative proceedings, that the respective positions of the
President and each Senator and Representative also be made a part of
that record, and that there be an opportunity for immediate resolution
of the confrontation between the political Branches.

   It necessarily follows that "under the constitutional mandate (a
bill) is to be returned to the 'House' 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 journal,
and proceed to reconsider the bill" (279 U.S. at 683);  see also
Missouri Pac. Ry. v. Kansas, 248 U.S. 276, 280-283 (1919);  cf.
Anderson v. Dunn, 19 U.S. (6 Wheat.) 204, 231 (1821).  The court of
appeals' holding that the return of a bill is not "prevent(ed)" within
the meaning of the Pocket Veto Clause whenever an agent of the
originating House is authorized to accept physical delivery of a
message from the President cannot be reconciled with the procedures
designed to bring about prompt public notice and an immediate
resolution of the disagreement between the political Branches.  The
agent of an adjourned House has no authority to spread the President's
objections at large on the journal of the House, and a bill that is
delivered to him would be kept in "suspended animation" until Congress
reconvened (The Pocket Veto Case, 279 U.S. at 684) -- which in this
case did not occur for nine weeks.  To accord significance to the
presence of an agent would trivialize the formal return of a bill by
the President -- which the Constitution deems to be a matter of
profound urgency and public importance requiring the immediate
attention of Congress itself, just as presentment requires the
President to give his immediate attention to the bill and return it
with his objections within ten days.

 B. This Court's Decisions In The Pocket Veto Case And Wright v.
United States Foreclose The Argument That H.R. 4042 Became A Law

   As we have shown in Point A, supra, the text, origins, and purposes
of the Pocket Veto Clause establish that Congress's adjournment sine
die in this case "prevent(ed)" the President from returning H.R. 4042
to the House of Representatives for reconsideration.  That question is
not, however, one of first impression for the Court.  The Court
considered this precise question in The Pocket Veto Case, unanimously
holding that a bill does not become a law in such circumstances, and
the Court unanimously adhered to that view in Wright v. United States.
 Those decisions are controlling here and require reversal of the
judgment below.

   1. The Court in The Pocket Veto Case stated the question presented
in terms that apply here as well (279 U.S. at 672):

         This case presents the question whether, under the second
      clause in Section 7 of Article I of the Constitution of the
      United States, a bill which is passed by both Houses of Congress
      during the first regular session of a particular Congress and
      presented to the President less than ten days (Sundays excepted)
      before the adjournment of that session, but is neither signed by
      the President nor returned by him to the House in which it
      originated, becomes a law in like manner as if he had signed it.

   The Court held that such a bill does not become a law.  /28/

   Moreover, the Court in The Pocket Veto Case specifically rejected
the very arguments upon which the court of appeals relied in this
case.  First, the Court dismissed the "argument that the word
'adjournment' as used in the constitutional provision refers only to
the final adjournment of the Congress" at the end of its biennial
term;  it found "nothing in the context which warrants the insertion
of such a limitation" (279 U.S. at 680).  Second, although the Court
acknowledged that under modern practice unfinished legislative
business before either House is carried over from one session to the
next (id. at 675), it found "no substantial basis for the suggestion
that although the House in which the bill originated is not in session
the bill may nevertheless be returned * * * by delivering it, with the
President's objections, to an officer or agent of the House," who
might then submit the bill to the House at its next session (id. at
683-684).  The Court concluded that "delivery of the bill to such an
officer or agent, even if authorized by Congress itself, would not
comply with the constitutional mandate," because "(t)he House, 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 Constitution requires" (id.
at 684).

   The court of appeals in this case nevertheless has effectively
confined the application of the Pocket Veto Clause to "final"
adjournments, /29/ attaching dispositive significance to the authority
of the Clerk to receive messages from the President following an
adjournment and to rules of the House and Senate permitting the
carryover of business from one session to the next (Pet. App. 31a,
33a-36a, & n.27, 40a-41a, 45a-46a).  That holding is flatly
inconsistent with The Pocket Veto Case.

   2. In declining to follow The Pocket Veto Case, the court of
appeals relied on this Court's decision nine years later in Wright v.
United States (Pet. App. 27a-30a, 32a-33a, 37a-39a).  However, Wright
in fact reaffirmed the holding in The Pocket Veto Case, and the court
of appeals' reasoning in this case (and in Kennedy v. Sampson) in fact
is inconsistent with the reasoning in Wright.

   In Wright, the Senate, in which the bill in question had
originated, was in a three-day intrasession recess when the ten-day
period for the President to return the bill expired;  the House of
Representatives, however, remained in session.  The President
disapproved the bill, and he returned it to the Senate by delivering
it to the Secretary of the Senate, who in turn delivered the bill to
the President of the Senate when it reconvened two days later.  302
U.S. at 585.  Despite the President's express disapproval of the bill,
the petitioner in Wright contended that it became a law through an
anomaly in the Constitution:  He argued that the Pocket Veto Clause
was inapplicable, and that the President's attempted return of the
bill to the Senate was ineffective because that return could not be
accomplished by delivery to the Secretary of the Senate.  See 302 U.S.
at 596-597.  Not surprisingly, the Court declined to interpret the
Constitution to require that result.

   The Court first concluded that the Senate's three-day recess was
not an adjournment by "the Congress" that prevented the return of the
bill within the meaning of the Pocket Veto Clause (302 U.S. at
587-589).  Citing the "precise use of terms and careful
differentiation" between Congress and its individual Houses found in
Article I, Section 7, Clause 2, the Court held that "the (Pocket Veto)
clause describes not an adjournment of either House as a separate
body, or an adjournment of the House in which the bill shall have
originated, but the adjournment of 'the Congress'" (302 U.S. at 587).
Accordingly, because "'(t)he Congress' did not adjourn" and "(t)he
Senate alone was in recess," the Court held that the Pocket Veto
Clause was inapplicable (ibid.).  See also id. at 589, 592, 597.  /30/

   Having decided that the Pocket Veto Clause was inapplicable, the
Court turned to and rejected the argument that the President's return
of the bill nevertheless was ineffective because it was accomplished
by means of delivery to the Secretary of the Senate, rather than to
the Senate in session (302 U.S. at 589-593).  The Court repeatedly
stressed that the Senate was in a unicameral recess taken under the
"constitutional permission" (id. at 593) of Article I, Section 5,
Clause 4, which provides:  "Neither House, during the Session of
Congress, shall, without the Consent of the other, adjourn for more
than three days." See 302 U.S. at 589, 590, 591, 592, 595, 596, 598.
Because the Pocket Veto Clause was inapplicable, the Court found "no
violation of any express requirement of the Constitution" in the
return of the bill by means of delivery to an agent of the originating
House.  /31/ The Court explained that "(u)nder the constitutional
provision the Senate was required to reconvene in not more than three
days and thus would be able to act with reasonable promptitude" (id.
at 589-590).

   The Court was careful, however, not to disturb the rule of The
Pocket Veto Case.  It first observed that in The Pocket Veto Case,
unlike in Wright, "the Congress had adjourned," and the Court
accordingly had no occasion in the former case to decide whether the
Pocket Veto Clause "applies where the Congress has not adjourned and a
temporary recess has been taken by one House during the session of
Congress" (302 U.S. at 593).  Moreover, the Court noted that the
purposes of the Clause that were discussed in The Pocket Veto Case
would not be undermined by an arrangement permitting the return of a
bill through an officer of the originating House while it is in a
recess of three days or less (302 U.S. at 595):

         In such case there is no withholding of the bill from
      appropriate legislative record for weeks or perhaps months, no
      keeping of the bill in a state of suspended animation with no
      certain knowledge on the part of the public whether it was
      seasonably delivered, no causing of any undue delay in its
      reconsideration.

   Finally, the Court stressed the narrowness of its holding and
expressly refrained from addressing the situation in which even one
House, with the consent of the other, might take a longer adjournment
during a session of Congress (id. at 598).  /32/

   It thus is clear on the face of the opinion that Wright furnished
the court of appeals no support whatever for refusing to follow The
Pocket Veto Case and for holding that the Pocket Veto Clause is
inapplicable to an adjournment sine die that concludes the first
session of a Congress.  Moreover, although the court of appeals also
relied on Wright for its holding in Kennedy v. Sampson that the Pocket
Veto Clause has no application to any intrasession adjournment by
Congress, Wright likewise fails to support that holding.  Wright
relied extensively on the three-day limit imposed by Article I,
Section 5, Clause 4 on the length of an adjournment that can be taken
without the concurrence of both Houses.  That Clause specifies the
dividing line between those adjournments that are deemed to be
substantially disruptive of the legislative process and therefore to
require bicameral action, and those "brief recess(es)" (Wright, 302
U.S. at 595) that the Framers concluded were not sufficiently likely
to interfere with the business of Congress to require bicameral
action.  /33/ In light of this function, the Clause should also be
regarded as the constitutionally specified dividing line between those
adjournments that "prevent" the President from returning a bill for
immediate reconsideration by Congress and those brief recesses that do
not unacceptably postpone such reconsideration.

   Indeed, the Court in Wright expressly recognized the significance
of the Three-Day Adjournment Clause in this setting, observing that a
three-day recess by one House in conformity with that Clause "does not
constitute such an interruption of the session of the House" as to
give rise to the dangers identified in The Pocket Veto Case (302
U.S.C. at 596).  Contrary to the court of appeals' conclusion in
Kennedy v. Sampson, Wright did not suggest that the Pocket Veto Clause
is wholly inapplicable to intrasession adjournments by both Houses of
Congress, irrespective of the resulting delay in reconsideration.  A
fortiori, Wright furnishes no support for the court of appeals'
holding that the adjournment sine die in this case, which terminated
the First Session of the 98th Congress and resulted in the absence of
Congress for a period of nine weeks, did not "prevent" the return of a
H.R. 4042 within the meaning of the Pocket Veto Clause.

 C. Practical Construction Of The Constitution Strongly Supports The
Conclusion That The Return Of H.R. 4042 Was "Prevent(ed)" By
Congress's Adjournment

   1. In The Pocket Veto Case, the Court found that "the practical
construction that has been given to (the Pocket Veto Clause) * * *
through a long course of years" "confirmed" its conclusion that the
Clause is applicable following an adjournment sine die (279 U.S. at
688-689).  The first occasion on which a bill failed to become a law
by operation of the Clause followed the adjournment of the First
Session of the Twelfth Congress.  See Presidential Vetoes 5.  When the
Second Session of the Twelfth Congress convened, President Madison
transmitted a message to Congress stating" "(H)aving been presented at
an hour too near the close of the session to be returned with
objections for reconsideration, the bill failed to become a law." 25
Annals of Cong. 18 (1853).  This early and authoritative
interpretation of the Clause by one of the principal architects of the
Constitution and its presentment requirement (see Chadha, 462 U.S. at
947) is entitled to great weight.  See Marsh v. Chambers, 463 U.S.
783, 790 (1983).

   Moreover, prior to The Pocket Veto Case, "all the Presidents who *
* * had occasion to deal with this question * * * adopted and carried
into effect the construction * * * that they were prevented from
returning the bill to the House in which it originated by the
adjournment of the session of Congress;  and * * * this construction
ha(d) been acquiesced in by both Houses of Congress" (279 U.S. at
691).  As of that time, 119 bills had been neither signed nor returned
with the President's objections following such an adjournment, and
"(n)one of these bills or resolutions was placed upon the statute
books or treated as having become a law" (id. at 690).  This "(l)ong
settled and established practice," stated the Court, "is a
consideration of great weight in a proper interpretation of
constitutional provisions of this character" (id. at 689).  See Dames
& Moore v. Regan, 453 U.S. 654, 686 (1981);  United States v.
Curtiss-Wright Export Corp., 299 U.S. 304, 322 (1936);  J.W. Hampton,
Jr. & Co. v. United States, 276 U.S. 394, 412 (1928);  Stuart v.
Laird, 5 U.S. (1 Cranch) 299, 309 (1803).

   The historical understanding as regards an adjournment sine die,
which is the type of adjournment involved in this case, continued
after The Pocket Veto Case.  The court of appeals recognized "that the
view that intersession adjournments do create an opportunity for a
pocket veto has been accepted through most of the history of the
Republic by both the President and Congress" (Pet. App. 41a), and it
acknowledged that, "through President Nixon, twenty-five of the thirty
Presidents who have exercised the pocket veto power at all have done
so during intersession adjournments" (id. at 41a-42a).  Furthermore,
"(i)n each of these pocket vetoes -- 272 in all -- Congress has
acquiesced" (id. at 42a).  See also H.R. Rep. 93-1021, supra, at 1-2.
In fact, in almost 200 years, there are only three instances -- all
occurring since Kennedy v. Sampson -- in which a President purported
to return a bill with his objections following the adjournment of a
session sine die.  /34/ These recent incidents simply underscore the
degree to which the court of appeals' unprecedented approach to the
Pocket Veto Clause, adopted first in Kennedy v. Sampson and applied
here in complete derogation of The Pocket Veto Case, has overturned a
long-settled construction of the Clause.  /35/

   2. The court of appeals seemed to believe, however, that despite
this practice and the Court's decisions in The Pocket Veto Case and
Wright, the question whether the return of a bill is "prevent(ed)"
following an adjournment sine die remained open for it to decide,
essentially as a matter of fact, taking into account whether delivery
of the bill was physically possible through an agent of the
originating House and whether the delay and uncertainty occasioned by
the particular adjournment were sufficient, in the court's view, to
give rise to the concerns against which the Pocket Veto Clause was
designed to protect.  See Pet. App. 30a-37a;  Kennedy v. Sampson, 511
F.2d at 439-442.  Such an ad hoc approach would be unworkable.  A
"definite and formal" rule (United States v. Smith, 286 U.S. 6, 35
(1932)) is required to ascertain whether a bill has become a law by
operation of the Pocket Veto Clause, just as such a rule is supplied
at other steps of the specific procedures prescribed by Article I,
Section 7 for the enactment of legislation.

   Even the court of appeals conceded, however, that "clear rules
respecting the pocket veto are vitally necessary in order that the
status of bills in presidential disfavor be promptly resolved" (Pet.
App. 38a).  But rather than adhering to the "clear rules" specified in
the Constitution and The Pocket Veto Case, the court held, on the
basis of its own factual perceptions of modern circumstances, that the
return of a bill is not actually prevented, and that the Pocket Veto
Clause therefore is inapplicable, in entire categories of cases:  all
"intrasession" adjournments (in Kennedy v. Sampson) and all
"intersession" adjournments (in this case).  In the court's view, this
result was justified because adjournments now typically are shorter
than those the Framers might have foreseen when they drafted the
Clause.  See 511 F.2d at 411;  Pet. App. 32a-33a, 40a-41a.

   The court's factual premise is erroneous, because there is no
reason to believe that the Framers had any fixed preconceptions about
how often and how long Congress would sit or how frequent and
protracted its adjournments would be.  /36/ But however that may be,
the court of appeals had no authority to disregard the explicit
constitutional text, consistent historical practice, and this Court's
unanimous decision in The Pocket Veto Case, based on its own view that
changed circumstances have rendered the Pocket Veto Clause
anachronistic.  Compare Chadha, 462 U.S. at 958-959.  The Constitution
itself stipulates that an adjournment "prevent(s)" the return of a
bill, because it renders Congress unavailable for immediate receipt
and reconsideration of the bill.  Whether the return of a bill is
prevented was not a factual question to be resolved by the court of
appeals.

   Moreover, the court of appeals seriously erred in believing that in
modern circumstances, neither "intrasession" nor "intersession"
adjournments give rise to the concerns underlying the Pocket Veto
Clause.  The fundamental purposes of Article I, Section 7 in this
context -- to assure prompt and public notation of the objections of
the President on the formal record of legislative proceedings, and an
opportunity for immediate resolution of what the Constitution regards
as an important disagreement between the political Branches -- are as
important today as they were in 1787, when the Framers rejected a
proposal to postpone Congress's consideration of the President's
objections to the next meeting of Congress.  Those purposes are
seriously undermined by the court of appeals' holding, which
effectively reads the Pocket Veto Clause out of the Constitution,
except with respect to what the court characterized as a "final"
adjournment at the conclusion of a Congress.

                              CONCLUSION

   The judgment of the court of appeals should be vacated and the case
remanded with directions to dismiss on the ground that the case is
moot or that respondents do not have standing to sue.  If the court
reaches the merits, the judgment of the court of appeals should be
reversed.

   Respectfully submitted.

   CHARLES FRIED

      Solicitor General

   RICHARD K. WILLARD

      Assistant Attorney General

   CAROLYN B. KUHL

      Deputy Solicitor General

   EDWIN S. KNEEDLER

      Assistant to the Solicitor General

   WILLIAM KANTER

   MARC JOHNSTON

      Attorneys

   JUNE 1986

   /1/ Pub. L. No. 97-113, 95 Stat. 1555 (22 U.S.C. (& Supp. II) 2370
note) (Pet. App. 141a-145a).

   /2/ The original defendants were petitioner Ronald Geisler,
Executive Clerk of the White House (who delivers bills that have
become laws to the appropriate official for publication), and Gerald
P. Carmen, the then-Administrator of General Services (who at the time
was charged with receiving, preserving and publishing all laws of the
United States).  See Pet. App. 119a-120a;  1 U.S.C. (Supp. II) 106a,
112.  Ray Kline, the Acting Administrator of General Services, was
later substituted for Carmen.  Pet. App. 3a & n.4.  In view of the
transfer of relevant responsibilities to the Archivist of the United
States (see National Archives and Records Administration Act of 1984,
Pub. L. No. 98-497, Section 107(d), 98 Stat. 2291 (1 U.S.C. (Supp. II)
106a, 112)), Frank G. Burke, Acting Archivist of the United States,
has been substituted for Kline as a petitioner.  For simplicity, we
include Burke's predecessors in our references to "petitioners."

   /3/ Petitioners did not initially contest the standing of the
Senate (Pet. App. 15a-17a & n.16).  However, upon further
consideration, petitioners argued in the supplemental petition for
rehearing (at 7-10) that none of the respondents has standing.

   /4/ Br. for Appellants and Pet. for Issuance of a Writ of Mandamus
6 (Jan. 10, 1984).

   /5/ To that end, when plaintiffs filed their complaint on January
4, 1984, they requested a ruling from the district court before
January 16, 1984, the date on which the next certification would have
been due if the bill had become a law.  See J.A. 44.  When the
district court denied their motions for expedited treatment and a
preliminary injunction (J.A. 37, 41), plaintiffs unsuccessfully sought
emergency relief from the court of appeals (J.A. 48-52).

   /6/ "J. Br. in Opp." refers to the joint brief filed by Michael D.
Barnes, et al., and the United States Senate.  "H.R. Br. in Opp."
refers to the brief filed by the Speaker and Bipartisan Leadership
Group of the House of Representatives.

   /7/ Respondents attempt (J. Br. in Opp. 13 n.10;  H.R. Br. in Opp.
17 n.20) to distinguish NOW on the ground that Idaho there sought an
acknowledgement that its Legislature voted against a failed measure,
while respondents here seek recognition that they voted in favor of a
bill that passed both Houses of Congress.  Although this distinction
might have made a difference for mootness purposes if H.R. 4042 were
still capable of being put into effect, that bill can enjoy no greater
legal status at this late date than could the unsuccessful
constitutional amendment at issue in NOW.  The only question in both
cases is whether formal publication by the responsible government
officials of the position taken by the plaintiff is sufficient, in the
absence of continuing legal consequences, to keep a case alive.

   /8/ See, e.g., Moore v. United States House of Representativs, 733
F.2d 946 (D.C. Cir. 1984), cert. denied, 469 U.S. 1106 (1985);  Vander
Jagt v. O'Neill, 699 F.2d 1166 (D.C. Cir.), cert. denied, 464 U.S. 823
(1983);  Riegle v. Federal Open Market Committee, 656 F.2d 873 (D.C.
Cir.), cert. denied, 454 U.S. 1082 (1981);  Kennedy v. Sampson.  The
doctrine has thus far gone unreviewed by this court:  in the cases in
which the Court denied certiorari, the court of appeals had, "largely
through application of the doctrine of equitable discretion, * * *
awarded judgment for the party that was challenging standing." Moore,
733 F.2d at 960 (Scalia, J., concurring.)

   /9/ This interpretation is confirmed by the debates of the
Constitutional Convention.  In response to a motion to extend the
judicial power to cases arising under the Constitution, James Madison
questioned whether the jurisdictional grant "ought not to be limited
to cases of a Judiciary Nature," because "(t)he right of expounding
the Constitution in cases not of this nature ought not to be given to
that Department." The proposal was adopted, but so too was Madison's
view of the circumstances in which the courts might pass on
constitutional questions, "it being generally supposed that the
jurisdiction given was constructively limited to cases of a Judiciary
nature." 2 The Records of the Federal Convention of 1787, at 430 (M.
Ferrand ed. 1966) (hereinafter cited as Farrand).

   /10/ Congress's request for a ruling regarding the legal status of
a measure passed by the House and Senate resembles the proposal,
rejected by the Constitutional Convention, for joining members of the
Judiciary in a council of revision to review all bills passed by the
National Legislature.  This design was opposed because such
participation might bias the judges in future litigation coming before
them, detract from the responsibility of the President, and "involve(
) an improper mixture of powers." 1 Farrand 139-140.  Opponents also
argued that the Judiciary "should have the confidence of the people,"
which "will soon be lost, if they are employed in the task of
remonstrating (against) popular measures of the Legislature" (2
Farrand 76-77), and that "Judges ought never to give their opinion on
a law till it comes before them" (id. at 80).  See generally id. at
73-80.  These reasons for disassociating the Judicial Branch from
disputes between the political Branches in the legislative process,
and for confining the judicial role in such matters to the resolution
of cases that are properly brought before the courts by parties who
are directly and personally affected, weigh heavily against
recognition of a right in Congress or its Houses and Members to submit
the dispute between the political Branches in the instant case to the
federal courts.  Compare Richardson, 418 U.S. at 189-191 & n.9
(Powell, J., concurring).

   /11/ We do not suggest, of course, that the particular issue that
respondents seek to litigate -- whether H.R. 4042 failed to become a
law by operation of the Pocket Veto Clause -- is itself a "political
question" that cannot be resolved by the federal courts in any case.
That question plainly can be decided on a suit brought by a party who
would have rights under the bill if it did become a law.  See The
Pocket Veto Case;  Wright v. United States.  Nevertheless, the
considerations underlying the political question doctrine properly
inform the standing inquiry in this case.  For just as the doctrine of
Article III standing rests on principles of separation of powers
(Allen, 468 U.S. at 750), "(t)he nonjusticiability of a political
question is primarily a function of the separation of powers" and "the
relationship between the judiciary and the coordinate branches of the
Federal Government" (Baker v. Carr, 369 U.S. 186, 210 (1962)).  In
this a suit brought by Members of the Legislative Branch against
officials of the Executive Branch, with no private parties or rights
involved, the separation-of-powers concerns given expression by the
political question doctrine have a special applicability and make it
especially inappropriate for the Judicial Branch to step between the
political Branches to resolve a purely intragovernmental dispute.  See
Goldwater v. Carter, 444 U.S. 996, 1004-1005 (1979) (Rehnquist, J.,
concurring).

   /12/ See M'Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 412 (1819)
("Could it be necessary to say, that a legislature should exercise
legislative powers, in the shape of legislation?");  The Federalist
No. 33, at 202 (Hamilton) (Rossiter ed. 1966) ("What is a LEGISLATIVE
power but a power of making LAWS?  What are the means to execute a
LEGISLATIVE power but LAWS?").

   /13/ It is significant that the Framers made available an
alternative process by which Congress may bring about an adjudication
of the legality of conduct by Executive Branch officials, but
carefully limited the circumstances and manner in which it may be
invoked.  That alternative is impeachment by the House (Art. I,
Section 2, Cl. 5) and trial by the Senate (Art. I, Section 3, Cl. 6),
but only in cases of possible "Treason, Bribery, or other high Crimes
and Misdemeanors" (Art. I, Section 4).  The impeachment process was
regarded as "political" in nature, in the sense that it provides for
an inquiry into the "conduct of public men" (The Federalist No. 65, at
396-397) (Hamilton).  For that reason, the power was lodged in
Congress itself, with the Senate sitting as a court of impeachment.
See generally id. at 396-401;  The Federalist No. 66, at 401-407
(Hamilton).  Proposals to involve the Judiciary in the impeachment
process were rejected.  The Federalist No. 65, at 398-400 (Hamilton);
2 Farrand 39, 46, 159, 172, 186-551.  The circumstances of the present
case of course do not remotely implicate the impeachment power.  But
the express provision in the Constitution for this carefully
circumscribed means by which Congress may initiate an adjudication
regarding the legality of the conduct of Executive officials strongly
reinforces the conclusion that the Constitution forecloses Congress
from calling on the federal courts to adjudicate a dispute with
Executive Branch officials in other, wholly different circumstances.
Chadha, 462 U.S. at 955-956;  Kilbourn, 103 U.S. at 191.

   /14/ Respondents' reliance (J. Br. in Opp. 8) on Marbury v.
Madison, 5 U.S. (1 Cranch) 137 (1803), is misplaced.  That was an
action by an individual to receive the governmental commission that he
claimed he was owed, the denial of which was indisputably an
injury-in-fact to him in his private capacity.  We do not dispute that
a person claiming to have been elected to Congress would have standing
to sue to vindicate his entitlement to office (although the suit might
be nonjusticiable for other reasons).  Cf. Powell v. McCormack, 395
U.S. 486 (1969).  This case, however, concerns not a private
entitlement to office, but the boundaries of the powers of such an
office, presented wholly apart from any private injury.  See Moore,
733 F.2d at 959 (Scalia, J., concurring)(distinguishing the "private
right to the office itself" from "the powers of the office," which
"belong to the people and not to (the officers themselves)").

   /15/ This limitation on standing is especially salient in the
context of an attack on the spending practices of the Executive
Branch.  The Court emphasized in Valley Forge that "the expenditure of
public funds in an allegedly unconstitutional manner is not an injury
sufficient to confer standing" (454 U.S. at 477), and that the limited
exception to this rule enunciated in Flast v. Cohen is inapplicable to
challenges directed at actions of the Executive, rather than Congress
(454 U.S. at 479).

   /16/ Respondents' extensive reliance (J. Br. in Opp. 9;  H.R. Br.
in Opp. 13, 14) on Coleman v. Miller, 307 U.S. 433 (1939), is
misplaced.  There, the Court held that it had jurisdiction to review
the decision of a state court that, unconstrained by Article III, had
decided federal constitutional questions in an action brought by state
legislators.  The Court concluded that the interest of the
legislators, which was "treated by the state court as a basis for
entertaining and deciding the federal questions," was "sufficient to
give the Court jurisdiction to review that decision" (307 U.S. at
446).  Coleman does not stand for the broad proposition that all
legislators have standing to bring an action in federal court on the
basis of an asserted injury to their lawmaking functions.  See Pet.
App. 95a-99a (Bork, J., dissenting).  Although the state senators in
Coleman were held by the state supreme court to have a legally
cognizable interest as a matter of state law in the effectiveness of
their vote, the doctrine of separation of powers demonstrates that
federal legislators have no comparable interest under the federal
Constitution.  Cf. Baker v. Carr, 369 U.S. 186, 210 (1962);  Reynolds
v. Sims, 377 U.S. 533, 572-575 (1964);  United States v. Gillock, 445
U.S. 360, 370-372 (1980);  Bender v. Williamsport Area School
District, No. 84-773 (Mar. 25, 1986), slip op. 10 n.7.  Moreover, the
injury asserted by the legislators in Coleman arose out of the voting
procedures followed in the state senate (see 307 U.S. at 436) -- a
subject that would appear to be particularly immune from judicial
scrutiny as regards Congress (Art. I, Section 5, Cl. 2;  Art. I,
Section 6, Cl. 1) and that differs in kind from the challenge
presented here, which is essentially a generalized challenge to an
alleged failure by the Executive to enforce the law.

   /17/ In Gregg v. Barrett, 771 F.2d 539, 543 (D.C. Cir. 1985), the
court of appeals acknowledged that its doctrine of congressional
standing has spawned a "plethora of cases" in which individual Members
of Congress have "challenge(d) actions or failures to act as
violations of the (M)embers' interests as legislators."

   /18/ H. Hart, The Concept of Law 92 (1961).

   /19/ In Chadha, for example, the President did not claim that he
suffered a legally cognizable injury as a result of the exercise of
the legislative veto and that he was therefore entitled to a judicial
declaration or injunction forbidding its use.  Rather, the case arose
in an adversary context between the INS and an alien facing
deportation (462 U.S. at 939).  Although the Senate and House were
permitted to intervene in the regular statutory review proceedings
initiated by the alien under 8 U.S.C. 1105a, in order to defend the
constitutionality of the challenged statute (462 U.S. at 930 n.5,
939), that case does not suggest that the House and Senate would have
had standing as plaintiffs to bring an independent action against the
Attorney General challenging the statutory validity of his decision
not to deport Chadha (see id. at 957 n.22) or seeking an abstract
declaration of the constitutional validity of the legislative veto.

   /20/ Even if it might in some circumstances be permissible for
courts to referee a dispute solely between the Legislative and
Executive Branches, the intervenors in this case -- the Senate and the
Speaker and Bipartisan Leadership Group of the House -- lack standing
to represent Congress as a whole.  The Court emphasized in Chadha that
the bicameral character of the Legislative Branch "serve(s) essential
constitutional functions" by "assur(ing) that the legislative power
would be exercised only after opportunity for full study and debate in
separate settings" (462 U.S. at 951).  For this reason, apart from
certain "narrow, explicit, and separately justified" exceptions (id.
at 956) not relevant here, Congress may act only through the express
concurrence of both houses.

   Such concurrence would be particularly important in the context
presented here.  As we have explained with respect to the standing of
individual members of Congress, the separation of powers concerns
raised by congressional standing are heightened where the courts
cannot be assured that the parties purporting to represent the
interests of Congress truly are doing so.  This concern at least could
be addressed by requiring that Congress as a whole express its
position on participation in a particular case by means of a
concurrent resolution.  In this case, although the Senate authorized
its Legal Counsel to intervene (S. Res. 98-313, 98th Cong., 2d Sess.
(1984);  130 Cong. Rec. S237 (daily ed. Jan. 26, 1984)), there is no
indication that the House conferred similar authority on the Speaker
and Bipartisan Leadership Group.

   Furthermore, the Senate Legal Counsel has statutory authority to
intervene only in pending legal actions concerning "the powers and
responsibilities of Congress." 2 U.S.C. 288e(a) and (c).  This action,
at bottom, does not concern the powers of Congress;  it concerns
whether H.R. 4042 became a law and (according to respondents' current
theory) whether petitioners must bring about its publication.
Moreover, the Senate Legal Counsel is not authorized to initiate an
action on behalf of the Senate against the Executive.  See S. Rep.
95-170, 95th Cong., 1st Sess. 103 (1977).  Because the plaintiff
Members of Congress did not have standing to sue and because the
Senate could not have initiated this action, the Senate's intervention
did not provide a basis for continuing this suit.  See 7A C. Wright &
A. Miller, Federal Practice and Procedure Section 1917, at 584-586
(1972).

   /21/ Under respondents' theory, the Governor of a State apparently
also would have standing to sue the Archivist to obtain a judicial
determination that H.R. 4042 became a law, because Governors too were
entitled to receive copies of laws under the 1789 Act.

   /22/ See Act of Apr. 20, 1818, ch. 80, Section 4, 3 Stat. 439;  Act
of Jan. 12, 1895, ch. 23, Section 73, 28 Stat. 615;  44 U.S.C. (1946
ed.) 196a.

   /23/ Under the 1789 statute upon which respondents rely, the
publication and distribution duties of the Secretary of State were not
triggered until he had "received" the bill that had become a law from
the President (or from the Speaker of the House or the Secretary of
the Senate if the bill was repassed over the President's objections).
The current statute that triggers the Archivist's duties is
essentially identical in this respect.  See 1 U.S.C. (Supp. II) 106a.
This statutory scheme makes clear that whether a particular bill has
become a law is a matter to be resolved by the delivering official
(here the President), not by the Archivist.  That question therefore
cannot be resolved in a suit against the Archivist to require
publication of a bill he has not "received."

   This defect in the basis upon which respondents now pursue this
case is not cured by their joining of petitioner Geisler, the
Executive Clerk of the White House, as a defendant, in order to compel
him to deliver H.R. 4042 to the Archivist.  The statutes upon which
respondents rely do not mention the Executive Clerk or impose a duty
on him to deliver a law to the Archivist.  Section 106a states that
the Archivist is to receive the law from the President, and it
therefore is the President who must make the antecedent judgment
whether the bill has become a law and therefore should be delivered to
the Archivist.  The Executive Clerk is merely the President's agent
for the delivery of the bill if the President resolves that question
in the affirmative.  In this case, however, the President has resolved
that question in the negative.  Nothing in 1 U.S.C. (Supp. II) 106a,
112 or 113 suggests that it confers a right of action on Congress or
anyone else to sue the Archivist or the Executive Clerk -- inferior
officers who are subordinate to the President -- in order to
collaterally attack such a decision by the President.

   By contrast, in a suit brought by a proper plaintiff claiming
substantive rights under a bill that he contends became a law, there
would be no occasion for the plaintiff to rely on the bill publication
statute or to name the Archivist or the Executive Clerk as a
defendant.  The plaintiff would sue the head of the agency concerned
or other proper defendant to vindicate his substantive right.

   /24/ The President has a limited role in relation to adjournments
by virtue of Article II, Section 3, which provides that the President
"may, on extraordinary Occasions, convene both Houses, or either of
them, and in Case of Disagreement between them, with Respect to the
Time of Adjournment, he may adjourn them to such Time as he shall
think proper."

   /25/ Congress can avoid the failure of a bill to become a law
simply by delaying its adjournment and remaining in session until the
President's time to consider the bill has expired.  Alternatively, if
a bill fails of enactment by operation of the Pocket Veto Clause,
Congress can promptly pass an identical bill when it reconvenes.  The
Pocket Veto Case, 279 U.S. at 679 n.6.

   /26/ This proposal apparently was patterned after the New York
Constitution of 1777, which provided that an unapproved bill would
become a law "unless the legislature shall, by their adjournment,
render a return of the said bill within ten days impracticable;  in
which case the bill shall be returned on the first day of the meeting
of the legislature after the expiration of the said ten days." 7 W.
Swindler, Sources and Documents of United States Constitution 172-173
(1975).  See The Federalist No. 69, at 417 (Hamilton);  United States
v. Weil, 29 Ct. Cl. 523, 545 (1894);  cf. Missouri Pac. Ry. v. Kansas,
248 U.S. 276, 281 (1919).

   /27/ In conformity with this mandate, "(i)t is the usual but not
invariable rule that a bill returned with the objections of the
President shall be voted on at once * * * , but it has been held that
the constitutional mandate that 'the House shall proceed to consider'
means that the House shall immediately proceed to consider it under
the rules of the House, and that the ordinary motions under the rules
of the House -- to refer, to commit, or to postpone to a day certain
-- are in order * * * ." W. Brown, Constitution, Jefferson's Manual
and Rules of the House of Representatives, H.R. Doc. 97-271, 97th
Cong., 2d Sess. Section 108, at 46 (1983).

   /28/ The Court stated its holding as follows:  "(W)e conclude that
the adjournment of the first session of the 69th Congress on July 3,
1926, prevented the President, within the meaning of the
constitutional provision, from returning Senate Bill No. 3185 within
ten days, Sundays excepted, after it had been presented to him, and
that it did not become a law" (279 U.S. at 691-692).

   /29/ There is no textual support for the notion that the
adjournment of the last session in each two-year period that is
designated as a sequentially enumerated "Congress" is unique in any
respect that bears on the application of the Pocket Veto Clause.  The
two-year period is constitutionally significant only in defining the
term during which Members of Congress hold office.  Art. I, Section 2,
Cl. 1;  Art. I, Section 3, Cl. 1;  Art. I Section 3, Cl. 2;  Amend.
XX.  The Constitution itself does not speak of "terms" of Congress;
it speaks of "Sessions." See, e.g., Art. I, Section 5, Cl. 4;  Art.
II, Section 2, Cl. 3.  See also Art. I, Section 4, Cl. 2 (Congress
"shall assemble at least once in every Year");  Amend. XX, Section 2
(same).  For this reason, even if the Framers had intended to limit
the application of the Pocket Veto Clause to "final" adjournments by
Congress (but see pages 43-44, infra), they would have had in mind the
adjournment at the conclusion of a session, as in this case.  See,
e.g., La Abra Silver Mining Co., 175 U.S. at 454;  J. Story, supra,
Section 891, at 652.

   /30/ Justice Stone joined by Justice Brandeis, would have held that
the Pocket Veto Clause is applicable whenever the House in which a
bill originated is not in session on the day that the President's time
to consider the bill expires.  See 302 U.S. at 605-609.

   /31/ With regard to the conclusion in The Pocket Veto Case that a
bill must be returned to "the House in session" (279 U.S. at 682), the
Court stated in Wright (302 U.S. at 594):  "(T)hat expression should
not be construed so narrowly as to demand that the President must
select a precise moment when the House is within the walls of its
chambers and that a return is absolutely impossible during a recess
however temporary."

   /32/ In La Abra Silver Mining Co. v. United States, 175 U.S. 423
(1899), the Court held that a bill became a law when the President
signed it within ten days of presentment, even though Congress in the
meantime had adjourned for 13 days during the session.  See id. at
451.  The decision in La Abra necessarily assumed that, but for the
President's approval, the bill, by operation of the Pocket Veto
Clause, would not have become a law.  In fact, during the intrasession
adjournment that was at issue in La Abra, an unsigned bill failed of
enactment under that Clause.  See Presidential Vetoes, 1789-1976, at
141 (U.S. Senate Library comp. 1978) (hereinafter cited as
Presidential Vetoes).

   /33/ In the Virginia ratifying convention, James Madison explained
the Clause by stating that "it would be very exceptionable to allow
the senators, or even the representatives, to adjourn without the
consent of the other house, at any season whatsoever, without any
regard to the situation of public exigencies" (3 Farrand 312).

   /34/ See Presidential Vetoes 460 (S. 2350), 461 (H.R. 5900);  id.
at 5 (Supp. 1977-1984) (S. 2096).  In Kennedy v. Jones, 412 F. Supp.
353 (D.D.C. 1976), a companion case to Kennedy v. Sampson, both an
intersession pocket veto and an intrasession pocket veto were
challenged. The litigation in Kennedy v. Jones was terminated by a
consent judgment providing for publication of the bills at issue as
laws.  Id. at 356.  At about the same time, President Ford announced
that if he disapproved a bill that was before him during either an
intrasession or an intersession adjournment, he would return the bill
with his objections to the originating House if it had specifically
authorized an officer or agent to receive such messages.  See 122
Cong. Rec. 11202 (1976) (statement of Attorney General Levi).  Two
bills were delivered to agents of the originating House during
intersession adjournments during the administration of President Ford
and one was delivered in this manner during the administration of
President Carter, but none was repassed over the President's
objections.

   /35/ Prior to Kennedy v. Sampson, the practice also was consistent
with respect to bills from which the President withheld his approval
during intrasession adjournments by Congress of more than three days.
See 511 F.2d at 442-445 (appendix listing 38 "pocket vetoes" during
such adjournments) (the actual total may be much higher, depending
upon whether certain adjournments were correctly characterized as
intersession in nature;  id. at 444 nn.4-6).

   Until the 1860s, Congress rarely adjourned for more than three days
during a session.  Kennedy v. Sampson, 511 F.2d at 442-445.  As a
result, there apparently was no occasion to decide whether the Pocket
Veto Clause applied in such circumstances until 1867, when two bills
failed to become laws during a 16-day adjournment.  See Presidential
Vetoes 35.  In a message to Congress, President Johnson stated that an
adjournment "in accordance with a concurrent resolution" is the
"precise condition in which (the Constitution) positively declares
that a bill 'shall not be a law.'" Cong. Globe, 40th Cong., 2d Sess.
720 (1868).  The Senate then debated whether the Clause is applicable
during any adjournment that involves "the joint action of both Houses"
(ibid. (remarks of Sen. Buckalew)) or whether it instead is limited to
"an adjournment sine die" (id. at 721 (remarks of Sen. Sumner)).
Shortly after this debate, a bill, S. 366, 40th Cong., 2d Sess.
(1868), was introduced that would have declared that the Clause is
applicable only when a session of the Congress has adjourned.  This
proposal drew strong opposition on constitutional grounds.  See The
Pocket Veto Case, 279 U.S. at 686-690 n.11;  Cong. Globe, 40th Cong.,
2d Sess. 1371-1373, 1404-1405, 1406, 1940-1943, 2076-2078 (1868).
Although the bill was passed by the Senate, it was never reported out
of committee in the House.  279 U.S. at 687.

   In the ensuing 70 years, bills that were not signed during
intrasession adjournments of more than three days continued to be
regarded as not having become laws.  Presidential Vetoes 141, 165,
167, 231;  see also 20 Op. Att'y Gen. 503 (1892).  This pattern was
briefly interrupted in 1940 when, during a 10-day adjournment,
President Roosevelt delivered eight disapproval messages to the
Secretary of the Senate.  Presidential Vetoes 310-313.  The messages
were laid before the Senate when it reconvened (86 Cong. Rec.
9566-9568 (1940)), but no steps were taken to repass the bills over
the President's objections.  After this incident, bills left unsigned
during intrasession adjournments of more than three days again were
regarded as having failed of enactment (see 40 Op. Att'y Gen. 274
(1943)), and that pattern continued until Kennedy v. Sampson was
decided in 1974.  511 F.2d at 443-445.

   /36/ See 2 Farrand 197-200 (debates on the Annual Assembly Clause,
Art. I, Section 4, Cl. 2).  Immediately prior to the Constitutional
Convention, the Continental Congress had been in session for over ten
months, from January 2, 1786, to November 13, 1786.  During that time
it had taken 39 recesses for one day, six for two days, and one for
four days.  Previously, the Continental Congress had been in almost
continuous session from September 13, 1775, until June 3, 1784.  Its
longest adjournment in the decade that preceded the Constitutional
Convention lasted five months, from June 3, 1784, to November 1, 1784.
 See 27 J. Continental Cong. 490, 641 (G. Hunt ed. 1928).  The First
and Fifth Congresses under the Constitution sat in three sessions, and
in the first ten years, the annual date of assembly was repeatedly
altered by Congress.  See 1983-1984 Congressional Directory 418 (Joint
Comm. on Printing, 98th Cong., comp. 1983);  see also 1 A. Hinds,
Hinds' Precedents of the House of Representatives Sections 5-12, at
3-7 (1907).  Moreover, the sessions of the first five Congresses
ranged in length from 57 to 246 days, and adjournments ranged from two
to nine months.  1983-1984 Congressional Directory, supra, at 418.

   APPENDIX