Presidential Action on Joint Resolution

Disapproving Pay Raise

Under the Federal Salary Act of 1987, a pay raise recommended by the President becomes effective as law unless it is disapproved by a joint resolution “agreed to by the Congress” prior to the end of the 30-day period beginning when the President submits his recom­ mendation. The Act thus requires passage of the joint resolution by both Houses of Congress, but not signature by the President, prior to the end of the period.

The Constitution requires that the joint resolution disapproving the pay raise be presented to the President, and he is entitled to the constitutionally prescribed 10-day period to consider it. If the President signs the joint resolution dunng this period, the pay raise is disapproved. If the President vetoes the joint resolution (and the veto is not overridden), the pay raise is effective.

With respect to Article III judges, the President’s approval of the joint resolution after the 30-day period does not offend the Compensation Clause or section 2 of the joint resolu­ tion, since as a practical matter no increase in pay would vest m the judges prior to the expiration of the period.

February 7, 1989 

Memorandum Opin io n fo r t h e Attorney General

Pursuant to the Federal Salary Act of 1967, as amended, 2 U.S.C. §§ 

351-361 (the “Act”), the President transmitted to the Congress on January 

9, 1989, recommendations for the increase in salaries of certain members 

of the executive, legislative, and judicial branches. Pursuant to 2 U.S.C. § 

359(1), this recommendation is to become effective as law “unless [the] 

recommendation is disapproved by a joint resolution agreed to by the 

Congress not later than the last day of the 30-day period which begins on 

the date of [sic] which such recommendations are transmitted to the 

Congress.”

The Senate voted in favor of a resolution of disapproval of the 

President’s recommendations, S.J. Res. 7, 101st Cong., 1st Sess. (1989), 

on February 2, 1989. See 135 Cong. Rec. 1461 (1989). Today, the last day 

of the thirty-day period following receipt of the President’s recommendations, we understand that the House of Representatives either has, or will 

vote, in favor of S.J. Res. 7, or another resolution of disapproval, which 

will then be transmitted to the Senate for its approval. Under the Act, the 

joint resolution must be “agreed to by Congress” within the thirty-day 

period. The question has arisen whether this joint resolution must also be 

signed by the President within the thirty-day period.

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Primarily, we think this question is answered by the plain language of 

the Act. By its terms, the Act requires agreement by both Houses of 

Congress prior to the expiration of the thirty-day period, not signature by 

the President. Thus, by its express terms, the Act is stated as a limitation 

on Congress, not the President. This interpretation is also supported by 

the Senate Committee report which, in describing the effect of this language, states: “The Congress will have 30 days to pass a joint resolution 

disapproving those recommendations.” S. Rep. No. 210, 99th Cong., 1st 

Sess. 25 (1985) (emphasis added). Putting to one side for the moment the 

serious constitutional question which would be presented by a purported 

limitation on the President’s constitutionally-defined period of consideration for a joint resolution, had Congress intended to so limit the 

President, it presumably would have used the term “enacted” rather than 

“agreed to.” As a matter of constitutional law, of course, no joint resolution can be enacted into law without it being presented for the President’s 

signature or its constitutionally-prescribed equivalent.1 In this regard, the 

Act speaks of disapproval by a joint resolution of Congress and the 

Supreme Court’s decision in INS v. Chadha, 462 U.S. 919 (1983), leaves 

no doubt that any resolution must be presented to the President pursuant 

to Article I of the Constitution if it is to be effective as law.

It is because of the constitutional requirement of presentment as 

affirmed in Chadha, however, that we anticipate it will be argued that 

Congress should be understood as intending to require signature by the 

President prior to the expiration of the thirty-day period. Indeed, this 

interpretation of the statute was advanced by both the House and Senate 

counsel in litigation relating to the last pay raise under the Act, see

Humphrey v. Baker, 665 F. Supp. 23 (D.D.C. 1987), affd, 848 F.2d 211 

(D.C. Cir.), cert denied, 488 U.S. 966 (1988), although neither the district 

nor appellate court passed on the question. See 665 F. Supp. at 30 n.7. For 

the reason stated above, we do not believe that this argument will prevail 

in litigation. As already indicated, we think this argument is incorrect 

because of the literal language of the Act. However, even if one were to 

admit ambiguity in the Act’s meaning, we question whether Congress can 

by statute deprive the President of the ten-day period of consideration 

afforded to him by Article I, Section 7 of the Constitution. In short, the 

Act by its express terms only states a thirty-day limitation applicable to 

Congress. This thirty-day limitation cannot vitiate either the Constitution’s requirement that a joint resolution be presented to the President or 

the President’s ten-day period of consideration.2

1 Presidential signature is not the only method by which a bill becomes law under Article I of the 

Constitution In addition, a bill becomes law if (absent an ac^joumment of Congress) the President does 

not return to Congress the bill within ten days, or if he does return it with his objection, his objection is 

ovemdden by a two-thirds vote of each house U S Const, art. 1, § 7, cl 2. In this memorandum, however, we use “signature” as a shorthand reference for the three methods by which a bill becomes law.

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Nonetheless, given the stakes involved, if the President does not sign 

the joint resolution today within the 30-day period, we believe litigation 

is likely. Accordingly, as a m atter of prudence, if the President wishes to 

avoid litigation over the pay raise, however unmeritorious, we recommend that he sign the joint resolution of disapproval before midnight 

tonight.

As we write this, we have not been advised of the exact language of the 

final enrolled joint resolution. In this regard, we are unaware if it incorporates section 2 of S.J. Res. 7, which contains its own effective date provisions. Section 2(a)(1) of S.J. Res. 7 provided that “if the date of the 

enactment of this resolution is on or after February 8, 1989, the rates of 

pay for all offices and positions increased by the recommendations,” 

shall revert to their prior levels. But it adds the proviso in section 

2(a)(2)(B) that: “[t]he provisions of [section 1] and [section 2] shall not 

apply to reduce the rate of pay of any judge or justice appointed pursuant 

to article III of the Constitution of the United States.”

The question raised by section 2 of S.J. Res. 7 is — if the joint resolution 

is signed by the President, and thus “enacted” into law on or after 

February 8 (after the thirty-day period)— will Article III judges be entitled 

to the pay raise by virtue of section 2(a)(2)(B). We think not. Accepting 

our initial conclusion that the pay raise will not go into effect even if the 

President signs the disapproval resolution (which is section 1 of S.J. Res. 

7) after the thirty-day period has expired, the pay of Article IQ judges will 

never have been “increased,”3 and thus the joint resolution disapproving 

the pay raise can be applied to Article III judges without “reduc[ing]” their 

rate of pay as forbidden by section 2(a)(2)(B) of S.J. Res. 7.

In conclusion, the thirty-day limitation in the Act is by its terms applicable only to Congress. Moreover, the Constitution requires that the joint

2 This interpretation is not inconsistent with section 359(2), which provides that the effective date of 

the pay increase in section 359(1) shall be the first day of the first pay period beginning after the close 

o f the thirty-day period. It is true that if the thirty-day penod ends just before the beginning of a pay period, the President might not have acted on a joint resolution on the first day of the first pay penod after 

Congress agrees to the joint resolution. But there is no reason a pay increase cannot be retroactive to an 

earlier date, should the President determine to disapprove the joint resolution.

3 We understand that the next applicable pay penod for Article 111 judges begins March 1, 1989. Under 

United Stales v. Will, a judge’s salary increase “Vests’ for purposes of the Compensation Clause only

when it takes effect as part of the compensation due and payable to Article III judges ” 449 U.S 200, 229 

(1980) (emphasis added). Because section 359(2) of the Act provides that the recommended pay increases do no t become effective until the first day of the first pay penod after expiration of the thirty days, we 

read United States v. WiU to mean that no vesting within the meaning of the Compensation Clause of the 

Constitution, Article III, Section 1, would occur so long as the judges’ raises did not become effective 

conclusively or were rescinded pnor to March 1, 1989.

Even were the judges’ pay penod not March 1, 1989, but rather a date preceding the date on which the 

President signed the bill, we doubt that the judges would constitutionally be entitled to receive a raise 

under the Compensation Clause. While th e Act designates the pay period on which the raises are to take 

effect, this designation m ust be purely fo r accounting purposes to be consistent with the Supreme Court’s 

decision in Chadha. Consistent with Chadha, after the passage of the joint resolution, neither the judges 

nor anyone else would be entitled to a pay raise unless and until the President vetoed the joint resolution.

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resolution be presented to the President, and we believe that the 

President is entitled to the prescribed ten-day period to consider it. If the 

President signs the joint resolution during this period, the pay raise is disapproved. If the President vetoes the joint resolution (and the veto is not 

overridden), the pay raise is effective in accordance with section 359(2) 

of the Act. With respect to Article III judges, the President’s approval of 

the joint resolution after the thirty-day period does not offend the 

Compensation Clause or section 2 of S.J. Res. 7, since as a practical matter, we understand no increase in pay would vest in the judges prior to 

March 1, 1989.

Douglas W. Kjvuec

Assistant Attorney General

Office of Legal Counsel

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