Use of the “Pocket Veto” During

Intersession Adjournments of Congress

Under the Constitution, the President has the power to veto an enrolled bill by “retum[ing] it, 

with his objections to that House in which it shall have originated” within ten days of the bill’s 

being presented to the President. If, however, “the Congress by their Adjournment prevent [a 

bill’s] Return” from the President, he may veto the bill simply by failing to sign it (i.e., by 

“putting it in his pocket”). Congress may not override a pocket veto of a bill by a two-thirds 

vote of both Houses. Rather, the bill must be reintroduced and repassed by both Houses and 

resubmitted to the President for his approval or veto.

The Supreme Court has held that Congress' appointment of an officer or agent to receive 

returned bills from the President during an intersession adjournment does not preclude the 

President from exercising a pocket veto. The Court has also held, however, that an ordinary 

“return veto” was valid when the President returned a bill to the Secretary of the Senate while 

that House was in an intrasession adjournment of three days or less.

Despite lower court decisions questioning the continued validity o f the Supreme Court’s reasoning, use of the pocket veto during intersession adjournments remains valid, whatever steps 

Congress may take to receive returned bills during such and adjournment. The Supreme Court 

has not decided whether the pocket veto can be exercised when one House, but not the other, 

has adjourned sine die or for an intersession recess. Nor has that Court decided whether the 

pocket veto can be used during intrasession adjournments lasting longer than three days.

December 19, 1983

M e m o r a n d u m O p i n i o n f o r t h e C o u n s e l t o t h e P r e s i d e n t

This memorializes our response to your questions whether the President 

should use the “pocket veto” or the “return veto” during the present intersession 

adjournment of Congress, and whether there have been any recent developments in the law that would affect the advice that we have previously given to 

you on this subject.

Congress is currently in an intersession adjournment. The House and Senate 

adjourned sine die on November 18, 1983. See H.R. Con. Res. 221, 129 Cong. 

Rec. 34334 (1983). By separate resolution, the House and Senate agreed to 

reconvene on January 23, 1984, for the second session of the 98th Congress. 

See H.R.J. Res. 421, 129 Cong. Rec. 33123 (1983); id. at 34334.1 Before

1 Congress traditionally ends a session by a sine die adjournment at a date specified by concurrent 

resolution of both Houses. The 20th Amendment to the Constitution requires that Congress assemble each 

year on January 3 “unless they shall by law appoint a different day.” (Emphasis added.) Thus, although 

Congress can adjourn by concurrent resolution, it must establish a return date other than January 3 by a law.

Therefore, the tim e for reassembly is fixed, at the time o f adjournment, by a joint resolution which must be 

presented to the President and which, when signed, has the force of a law. Although a joint resolution 

specifies the date for return, the adjournment by concurrent resolution is considered to be sine die.

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adjourning, the Senate authorized the Secretary of the Senate to receive messages from the President during the adjournment.2 Under House Rule III-5, the 

House Clerk is authorized to receive such messages “at any time that the House 

is not in session.”3 H.R. Con. Res. 221 also provides that both Houses may be 

reconvened two days after Members are notified to reassemble by the Speaker 

and the Majority Leader of the Senate “acting jointly,” after each consults with 

the Minority Leader of the House and the Minority Leader of the Senate, 

respectively, “whenever, in their opinion, the public interest shall warrant it.” 

The practical consequence of a decision to exercise a pocket veto, instead of 

a return veto, is significant. Congress may override a return veto by a twothirds vote of both Houses; a bill which is pocket vetoed must be reintroduced 

and repassed by both Houses and resubmitted to the President for his approval 

or veto. But if a court were to determine that an attempted pocket veto of a bill 

was ineffective, that bill would become law because it had not been disapproved within ten days (Sundays excepted) after it was presented to the President.

The pocket veto power is very significant because it may often be much 

more difficult for proponents of legislation to start the legislative process anew, 

repass legislation, and overcome a second Presidential veto than simply to 

override the first veto. Time and inertia, extremely important factors in American political life, make the pocket veto a potent Presidential weapon. This is 

particularly so given Congress’ increasing propensity to be unable to pass 

much legislation except in the last few days of a congressional session. Because of this phenomenon, the pocket veto is available for use against a 

disproportionate number of bills. For example, out of 146 bills (public laws 

only) passed during the first session of the 97th Congress, 53 or more were 

presented to the President within ten days (Sundays excepted) prior to or after 

adjournment. Fifty-two of those bills were approved; one was disapproved by 

pocket veto. Others presented within the ten days (Sundays excepted) may 

have been signed in less than ten days. For the first sessions of 94th, 95th, and 

96th Congresses, the corresponding figures are as follows:

94th Congress: 50 or more presented out of 207 passed (48 

were signed, 2 were disapproved)

95th Congress: 13 or more presented out of 223 passed

96th Congress: 35 or more presented out of 187 passed

2 Senator Baker

ask[ed] unanim ous consent that during the sine die adjournment of the Senate, messages from the 

President o f the United States and the House o f Representatives may be received by the Secretary 

o f the Senate and appropriately referred, and that the Vice President, President pro tempore, and 

acting President pro tempore, may be authorized to sign duly enrolled bills and joint resolutions. 

W ithout objection, it was so ordered. See Authority for C ertain Action During Sine Die Adjournment and 

Upon Reconvening o f the Senate, 129 C ong. Rec. 34679 (1983).

3 The House Rule provides:

The Clerk is authorized to receive m essages from the President and from the Senate at any time 

that the House is not in session.

R ules o f the H ouse o f Representatives, R ule I1I-5.

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As a matter of political dynamics, even a slight increase or decrease in Presidential power may have enormous impact on the President’s influence with 

Congress. The pocket veto, therefore, should be appreciated as a tool of no 

little significance.

Because of the short time typically available for analysis at the time that a 

veto decision is required, and because of the adverse consequences of an 

erroneous decision to pocket veto a bill rather than return it, with objections, to 

the originating House, we have previously examined in rather comprehensive 

fashion the legal issues associated with pocket vetoes in situations that are 

likely to arise in the future.4 We have also carefully memorialized oral advice, 

whenever we have given it, so that it may be readily available for review when 

needed. We continue these practices in this memorandum, which reaffirms and 

supplements the conclusions in our prior memoranda and confirms our oral 

advice on this occasion.

We have consistently advised your Office on prior occasions that disapproval by inaction, the pocket veto, is the appropriate method of Presidential 

disapproval after a sine die adjournment of the Congress, where the end of the 

President’s constitutional period for approving or disapproving a bill falls 

during the adjournment.5 That advice is fully applicable to the present adjournment. In our view, neither the designation of an agent to receive messages from 

the President nor the provision for the possible recall of Members affects this 

conclusion.

I. Background

Article I, § 7, cl. 2 of the Constitution provides in part:

Every Bill which shall have passed the House of Representatives and the Senate, shall, before it becomes a Law, be presented to the President of the United States; If he approve he 

shall sign it, but if not he shall return it, with his Objections to 

that House in which it shall have originated, who shall enter the 

Objections at large on their Journal, and proceed to reconsider it.

If after such Reconsideration two thirds of that House shall 

agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered; and if approved by two thirds of that House, it shall 

become a Law. . . . If any Bill shall not be returned by the 

President within ten Days (Sundays excepted) after it shall have 

been presented to him, the Same shall be a Law, in like Manner

4 See “Approval and Disapproval of Bills by the President after Sine Die Adjournment o f the C ongress/’ 6 

Op. O.L.C. 846 (1982); “The Pocket Veto: Historical Practice and Judicial Precedent I,” 6 Op. O.L.C. 134 

(1982); “The Pocket Veto: Historical Practice and Judicial Precedent II,’’ 6 Op. O.L.C. 150 (1982).

5 See the memoranda cited supra note 4. See also M emorandum for the President from Griffin B. Bell, 

Attorney General (May 13, 1977) (attaching M emorandum for the Attorney General from John M. Harmon, 

Acting Assistant Attorney General, Office of Legal Counsel (May 13, 1977)).

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as if he had signed it, unless the Congress by their Adjournment

prevent its Return, in which Case it shall not be a Law.

(Emphasis added.) The highlighted phrase is commonly referred to as the 

“Pocket Veto Clause” because it empowers the President to prevent a bill from 

becoming law simply by placing it in his pocket, i.e., neither signing it nor 

returning it with his objections to its House of origin. As noted above, the 

functional difference between ordinary vetoes and pocket vetoes is that Congress cannot override the latter.

In The Pocket Veto Case, 279 U.S. 655 (1929), the Supreme Court upheld 

the use of a pocket veto during an intersession adjournment of the 69th 

Congress. Justice Sanford’s opinion for the Court concluded that the word 

“adjournment” was not limited to final adjournments of a Congress, but also 

included interim adjournments. The determinative factor with regard to an 

adjournment was whether it “prevented” the President from returning the bill 

within the time allowed to the House in which it originated. In resolving this 

question, the Court rejected the argument that a bill could be “returned” to the 

House within the meaning of the constitutional provision if it was returned to 

an officer or agent of the House to be held by him and delivered to the House 

when it resumed its sittings at the next session. The Court stated:

under the constitutional mandate [the 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; and . . . no return can be made to the House 

when it is not in session as a collective body and its members are 

dispersed.

Id. at 683.

Delivery of the bill to an officer or agent, even if authorized by Congress, 

“would not comply with the constitutional mandate”:

The 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 .... Manifestly it was not intended that, 

instead of returning the bill to the House itself, as required by 

the constitutional provision, the President should be authorized 

to deliver it, during an adjournment of the House, to some 

individual officer or agent not authorized to make any legislative record of its delivery, who should hold it in his own hands 

for days, weeks or perhaps months, — not only leaving open 

possible questions as to the date on which it had been delivered 

to him, or whether it had in fact been delivered to him at all, but

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keeping the bill in the meantime in a state of suspended animation until the House resumes its sittings, with no certain knowledge on the part of the public as to whether it had or had not been 

seasonably delivered, and necessarily causing delay in its reconsideration which the Constitution evidently intended to avoid. In 

short, it was plainly the object of the constitutional provision 

that there should be a timely return of the bill, which should not 

only be a matter of official record definitely shown by the 

journal of the House itself, giving public, certain and prompt 

knowledge as to the status of the bill, but should enable Congress to proceed immediately with its reconsideration; and that 

the return of the bill should be an actual and public return to the 

House itself, and not a fictitious return by a delivery of the bill to 

some individual which could be given a retroactive effect at a 

later date when the time for the return of the bill to the House 

had expired.

Id. at 684-85.

Use of the return veto during a brief, intrasession recess of only one House of 

Congress was upheld in Wright v. United States, 302 U.S. 583 (1938).6 There, 

the Supreme Court held that “Congress” had not adjourned when only one 

House, the Senate, recessed for three days while the other was in session.7 The 

Court rejected both legal and practical arguments that the President was “prevented” from returning a bill because of the Senate’s recess:

In returning the bill to the Senate by delivery to its Secretary 

during the recess there was no violation of any express requirement of the Constitution. . . .

Nor was there any practical difficulty in making the return of 

a bill during the recess. The organization of the Senate continued and was intact. The Secretary of the Senate was functioning 

and was able to receive, and did receive, the bill.... There is no 

greater difficulty in returning a bill to one of the two Houses 

when it is in recess during the session of Congress than in 

presenting a bill to the President by sending it to the White 

House in his temporary absence.

Id. at 589-90.

6 We do not believe that there is any constitutional significance to the designation of a period when one or 

both Houses are not in session as a “recess” or an “adjournment” for purposes o f determining w hether a return 

or a pocket veto is appropriate. There are certain technical practices which are unique to the House or the 

Senate and from which certain parliamentary consequences flow, but the difference does not depend on 

duration or the consent o f the other House. In this memorandum, we use the terms “recess" and “adjourn* 

ment” to mean any period in which Congress or one House is not in session. We do not, however, characterize 

the normal day-to-day or weekend interruptions in the session of Congress as adjournments for pocket veto 

purposes within the meaning of the Constitution.

7 The Constitution provides that “neither House, during the Session of Congress, shall, without the Consent 

of the other, adjourn for more than three days." U.S. Const, art. I, § 5, cl. 4.

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The Court distinguished The Pocket Veto Case on the ground that the 

dangers inherent in an intersession adjournment were not present in the context 

of a brief intrasession recess of three days or less by only one House. Id. at 595. 

As discussed more fully in Part II, below, the Court specifically declined to 

address the question whether an intrasession adjournment of more than three 

days, for which the consent of both Houses is required pursuant to Article I, 

§ 5, cl. 4, would prevent the return of a bill and thereby trigger the pocket veto 

provision. Id. at 598. The holding of the case was therefore expressly limited to 

the statement that the return veto could be used to prevent a bill from becoming 

law “where the Congress has not adjourned and the House in which the bill 

originated is in recess for not more than three days under the constitutional 

permission while Congress is in session.” Id. at 598.

More recently, in Kennedy v. Sampson, 511 F.2d 430 (D.C. Cir. 1974), the 

United States Court of Appeals for the District of Columbia Circuit considered 

a challenge by a Senator to a pocket veto of a bill, for which he had voted, 

during a brief intrasession adjournment (six days for one House, five for the 

other) of both Houses. The district court granted summary judgment for the 

plaintiff. The court of appeals affirmed, holding that the adjournment fell 

within the rule of Wright v. United States, not The Pocket Veto Case. Moreover, the court’s opinion concluded that a pocket veto would have been 

inappropriate even under the standards set forth in The Pocket Veto Case: “The 

modem practice of Congress with respect to intrasession adjournments creates 

neither of the hazards — long delay and public uncertainty — perceived in the 

Pocket Veto Case." Id. at 440. According to the court, “intrasession adjournments of Congress have virtually never occasioned interruptions of the magnitude considered in the Pocket Veto Case,” id. at 441.; and “[m]odem methods of 

communication” make the return of a disapproved bill to the appropriate 

officer of the originating House a matter of public record accessible to every 

citizen. Id. The court therefore broadly concluded that:

an intrasession adjournment of Congress does not prevent the 

President from returning a bill which he disapproves so long as 

appropriate arrangements are made for the receipt of presidential messages during the adjournment.

Id. at 437. See also id. at 442.

In a subsequent case, Kennedy v. Jones, 412 F. Supp. 353 (D.D.C. 1976), the 

Government entered into a consent judgment with the plaintiff, who had 

challenged the President’s pocket veto of two bills, one during an intersession 

adjournment and the other during an intrasession election adjournment of 

thirty-one days. The same day that judgment was entered, President Ford 

announced that he would not invoke his pocket veto power during intrasession 

or intersession recesses or adjournments if the originating House had specifically authorized an officer or other agent to receive returned bills during such 

periods. That announcement was limited to President Ford’s intended use of

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the pocket veto.8 It did not purport to bind, and, in our view, could not have 

bound, future Presidents. President Reagan has made no similar statement, nor 

did President Carter during his Presidency.

n . Analysis

As we have stated in our prior memoranda, we are confident that the 

President may pocket veto bills when the President’s constitutional period for 

exercising his veto power ends during an intersession adjournment of Congress.

A. The Case Law

We believe that The Pocket Veto Case stands for the proposition that 

intersession pocket vetoes are not only appropriate, but required. The Court in 

Wright distinguished The Pocket Veto Case and strongly implied that the 

earlier decision was still the law with respect to intersession adjournments:

However real th[e] dangers may be when Congress has adjourned and the members of its Houses have dispersed at the end 

of a session — the situation with which the Court [in The Pocket

Veto Case] was dealing — they appear to be illusory when there 

is a mere temporary recess.

302 U.S. at 595.

Our conclusion that pocket vetoes are the appropriate veto mechanism 

during an intersession adjournment is not inconsistent with the District of 

Columbia Circuit’s holding in Kennedy v. Sampson, which involved intrasession 

vetoes. To the extent that the district court’s judgment in Kennedy v. Jones is 

inconsistent with our conclusion, we believe that it is incorrect and inconsistent 

with both The Pocket Veto Case and Wright. In any event, Kennedy v. Jones is 

not a meaningful precedent because of the nonadversarial nature of the outcome. The court never did address the issues on the merits.

We therefore continue to read the case law to preserve the President’s power 

to use the pocket veto during an intersession adjournment of Congress. We 

believe that the holding in Wright regarding a recess of one House should be 

limited to the facts of that case: a short (up to three day) intrasession recess or 

adjournment of one House. For, just as Wright held that the return veto was 

appropriate on those facts, The Pocket Veto Case held that the pocket veto was 

required during a lengthy intersession adjournment by both Houses. Wright

neither expressly overruled The Pocket Veto Case nor challenged that Court’s

8 Following the decision in the Kennedy v. Jones, the Department of Justice issued a press release stating: 

President Ford has determined that he will use the return veto rather than the pocket veto during 

intrasession and intersession recesses and adjournments o f the Congress, provided that the House 

o f Congress to which the bill and the President's objections must be returned according to the 

Constitution has specifically authorized an officer or other agent to receive return vetoes during 

such periods.

Department of Justice Press Release (Apr. 13, 1976).

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perception of and remedy for the dangers attendant to a lengthy intersession 

adjournment. See The Pocket Veto Case, 279 U.S. at 684-85. In between the 

extremes of these two cases lies a number of other factual situations in which 

the result cannot be clearly derived from Wright. For example, we suspect that 

the holding in Wright would not control if either House has adjourned sine die

at the end of a Congress: the Congress as a whole would not be in a position to 

reconsider a bill returned to it. An intersession adjournment by one House 

might also present a much more difficult issue for the Court than the short 

recess in Wright. Finally, the most difficult situation under the analysis in 

Wright would be an intrasession adjournment by one House of Congress longer 

than three days. The Court in Wright expressly declined to predict the result in 

such circumstances, stating:

[W]e have no such case before us and we are not called upon to 

conjecture as to the nature of the action which might be taken by 

the Congress in such a case, or what would be its effect.

Wright, 302 U.S. at 598. It is therefore clear that Wright cannot be read as the 

final word on these issues. It goes without saying, of course, that what Wright

preserved of The Pocket Veto Case, the District of Columbia Circuit could not 

on its own authority destroy. Thus, we conclude that if both Houses of Congress have adjourned sine die between sessions of Congress, their adjournment 

“prevents” the President’s return of a bill within the meaning of the Pocket 

Veto Clause.

B. The Effect o f President F ord’s Announcement

As we stated in our November 15, 1982 memorandum, see 6 Op. O.L.C. at 

151-52, we do not believe that subsequent Presidents should consider themselves bound by President Ford’s self-imposed restrictions on his use of the 

pocket veto. Moreover, as the Supreme Court so recently reaffirmed, any doubt 

that the President’s approval could immunize a practice from constitutional 

scrutiny was resolved in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). 

See INS v. Chadha, 462 U.S. 919, 942 n.13 (1983).

C. The Receipt o f Messages

As we discussed in our previous memoranda, specific authorizations of 

agents to receive messages from the President have been customary for 

intersession and intrasession adjournments in both Houses. The Senate’s provision for receipt of messages by the Secretary of the Senate during the present 

intersession adjournment appears unexceptional in this regard. Since 1981, it 

has not been necessary for the House to adopt ad hoc provisions because it has 

maintained a standing Rule providing for receipt of messages from the President and the Senate whenever the House is not in session. As we noted in our 

memorandum of November 15, 1982, however, the House Parliamentarian’s

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comments make clear that the House Rule, originally adopted by the 97th 

Congress, H.R. Res. 5, 127 Cong. Rec. 98 (1981), was added to facilitate, if 

possible, the use of the return veto during intrasession recesses and thereby to 

discourage use of the pocket veto at that time. See 6 Op. O.L.C. at 151. The 

Parliamentarian’s comments do not mention intersession pocket vetoes. Moreover, the legislative history of House Rule III-5 supports this interpretation. 

Congressman Michel entered an analysis of the January 1981 Rules changes 

into the Congressional Record prior to their adoption, 127 Cong. Rec. 99-102

(1981), in which he explained that the proposed rule applied only to “non sine 

die adjournments.” Id. at 100. We therefore believe that the Senate’s appointment of an agent to receive messages during the current adjournment and the 

House’s standing delegation of authority to receive messages were not intended to, and do not, require the President to use a return veto during an 

intersession adjournment.

D. The Recall Provision

For similar reasons, we believe that the provision in H.R. Con. Res. 221, 

authorizing the recall of Members upon two days’ notice by joint action of the 

Speaker of the House and the Majority Leader of the Senate, does not affect the 

use of the pocket veto during an intersession adjournment. First, there is no 

indication in either the language or the legislative history of the Concurrent 

Resolution that it was intended to prevent the President’s use of the pocket 

veto. The “public interest” standard specified in the Concurrent Resolution for 

the recall of Congress is at least as consistent with a conclusion that the 

provision was intended to permit Congress to reconstitute itself to deal with 

unanticipated crises in foreign or national affairs. A similar clause was included, for example, in H.R. Con. Res. 68, by which the 79th Congress 

adjourned during the first session in 1945 shortly after the end of World War II. 

See 91 Cong. Rec. 7733-34,7911-12 (1945). See also H.R. Con. Res. 412,93d 

Cong., 1st Sess., 119 Cong. Rec. 43323, 43327 (1973).9

Second, even if the Congress had indicated an intention to preclude use of 

the pocket veto during this intersession adjournment, we do not believe that the 

provision in H.R. Con. Res. 221 could accomplish that objective. The Concurrent Resolution merely provides that the Speaker and the Majority Leader, 

acting jointly, may, at their discretion, recall the Members on two days’ notice. 

Under the reasoning of The Pocket Veto Case, once Congress adjourns, there is 

no functioning “House” in the constitutional sense to which a bill can be 

returned. Moreover, because the recall is discretionary, the President could not

9 A prior memorandum written in this Office considered the effect of the recall provision in H.R. Con. Res. 

412 on the use o f the pocket veto during the intersession sine die adjournment o f the 93rd Congress. That 

memorandum concluded that the recall provision was not effective to require the use of the return veto. A 

similar recall provision was included in S. Con. Res. 42, 93d Cong., 2d Sess., 119 Cong. Rec. 26427 (1973). 

The Guide to Congress (Congressional Quarterly, 3d ed. 1982) states that S. Con. Res. 42 revived a procedure 

that had not been used in 25 years. See also H.R. Con. Res. 6 9 7 ,93d Cong., 2d Sess., 120 Cong. Rec. 41815 

(1974).

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know in advance whether Congress in fact would be recalled to reconsider a 

bill returned with his objections. The Congress could remain adjourned and 

“prevent” the return of the bill — the precise situation the Pocket Veto Clause 

was designed to prevent. We do not believe the mere possibility that Congress 

could be recalled can affect the constitutional power of the President that arises 

on the adjournment of Congress sine die. Indeed, under the Constitution, the 

President always retains the authority to recall the Congress. U.S. Const, art. II, 

§ 3. That he could have done so did not lead the Court in The Pocket Veto Case

to conclude that a return veto could have been exercised in lieu of the pocket 

veto. We thus conclude that the mere reservation by the congressional leadership of the power to recall the Congress does not alter the fact that Congress has 

adjourned and dispersed, rendering a pocket veto appropriate.

T h e o d o r e B. O l s o n

Assistant Attorney General

Office o f Legal Counsel

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