### Pocket Veto Clause

T h e w o rd in g o f the P o ck et V eto C lause o f the C o n stitu tio n th at a bill sh all n o t b e co m e la w if "th e C o n g re ss by th e ir A d jo u rn m en t prev en t its R etu rn ” by th e P resid e n t — e x p re sse s th e assu m p tio n th at a d jo u rn m en ts o rdinarily m ake the retu rn o f a bill im p o ssib le, b u t the c le a r stru c tu ra l ru le e sta b lish e d by th e C lau se applies to all ad jo u rn m e n ts in th e c o n stitu tio n a l sen se, even if C o n g re ss has tak en m easu res to m ake the retu rn o f a b ill p o ssib le.

T h e d ra ftin g h isto ry o f the P o c k e t V eto C lau se show s an in ten t to a v o id ex ce ssiv e p e rio d s o f u n c erta in ty a b o u t the fate o f b ills p assed by C ongress.

O rd in a ry le g islatio n e x p ressin g C o n g re ss’ view about the c ateg o ry o f a d jo u rn m e n ts c o v e re d by th e P o c k e t V eto C la u se is in a p p ro p riate , b ecause such leg islatio n c a n n o t c h a n g e the m e a n in g

o f th e c o n stitu tio n a l term s.

P resid e n ts F ord a n d C arte r m ay have purp o rted to return bills that, u n d e r the C o n stitu tio n , c o u ld o n ly be p o c k e t vetoed. T hus, th e bills they believed they had re tu rn -v eto ed m a y in fact h a v e b een p o c k et-v e to ed instead. A s far as w e know , how ever, this has n o pra c tic al effect.

C o n g re ss can avoid a p p licatio n o f th e P ocket V eto C lau se d u rin g b rie f a d jo u rn m e n ts by s c h e d u ling p re sen tm en t o f bills so th a t the ten th day a fte r p re sen tm en t d o e s n o t fa ll d u rin g an a d jo u rn m e n t o f e ith e r H ouse th at is lo n g e r than three days.

May 17, 1990

L e t t e r f o r a M e m b e r o f t h e H o u s e o f R e p r e s e n t a t i v e s

The Department very much appreciates your interest in the Pocket Veto Clause. As I indicated at the hearing on last Wednesday, I would like to present more detailed answers to your thoughtful questions. Your first question concerned the text of the clause, which provides that a bill becomes a law without the President’s signature if he has not returned it to Congress with his objections after ten days (Sundays excepted) “unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a law.” U.S. Const, art. I, § 7, cl. 2. Our position, as you know, is that all adjournments of Congress in the constitutional sense prevent the return of a bill. Your question was whether that is a natural reading of the



### 103text; in particular, you asked whether if the Framers meant to say that they

would simply have said “unless the Congress adjourn.” We think that the formulation that appears in the Constitution is a very natural way to express our understanding. In drafting the Pocket Veto Clause, the Federal Convention was primarily concerned with the situationin which Congress had made return impossible.1 Adjournment was significant as the reason that return was impossible. If a drafter is referring to a particular cause but is principally interested in its effect, it is quite natural to refer to both together; indeed, it would be unnatural and confusing to refer only to the cause and not to mention the effect, where the effect is the primary concern. For example, consider a veterans benefit program open to all former service members except those who have lost their American citizenship through expatriation. One might refer to such persons as those who have been expatriated, but it is more informative and more natural toinclude the reference to loss of citizenship, because that is the reason expatriation is significant in this context.2 In addition, if a speaker presupposes that one event necessarily entails aconsequence, it is quite normal to include that presupposition in the expression. Thus, in the example I gave at the hearings, a legal rule might require a husband to notify his wife of something, unless her death prevents the notification. The fact that the rule is phrased that way, and does not say that the husband must notify his wife unless she dies, would not lead us to imagine instances in which death might not prevent notification. Moreover, our understanding of the text accords with the expectation that the Framers, in drafting the structural provisions of the Constitution, sought to establish brightline rules that are capable of mechanical application. See
INS v. Chadha, 462 U.S. 919, 945 (1983). Clarity is all-important withrespect to the law-making process itself. We think it unlikely that the Framers drafted an open-ended provision that would invite debate as to whetheran adjournment was of the kind that prevents a return or not. On the contrary, their principles of Constitution writing require clearer rules than that, and our reading makes the Pocket Veto Clause clear and mechanical. Next, you suggested a possible response to our argument based on thedrafting history of the Pocket Veto Clause. We pointed out that the Committee on Detail of the Federal Convention considered a version of the clause under which, if Congress had adjourned after presenting a bill, the President would hold the bill until the next session of Congress. The Committee, however, rejected that form of the rule in favor of the Pocket Veto Clause as it appears in the Constitution. We suggest that this indicates that the Federal

1 A s w e explain, that concern arose both because C ongress m ight thereby seek to circum vent the veto and because if return is im possible so is prom pt reconsideration. 2 T h is read in g is en tirely consistent w ith the m axim that all the w ords o f a text should have m eaning. In o u r view , the C o nvention referred to both adjournm ent and prevention o f return for greater clarity, n o t in o rd e r to lim it the class of adjournm ents to w hich the Pocket Veto C lause applies. T he m axim d o es not operate to require that drafters be as laconic as possible. 

# 104Convention was concerned, not only with the possibility that Congress might seek to evade the President’s veto by passing laws and then adjourning, but also with excessive periods of uncertainty concerning the fate of a vetoed bill.3 You suggest that the Convention may instead have wanted to avoid the situation in which one Congress passes a bill and the next Congress, with different personnel, decides whether to override the President’s veto. While that is a possible explanation of the Committee’s decision, we think it less plausible than the one we suggest. The Constitution as the Convention approved it permits one Congress to override a veto that the President returned to the preceding Congress. If one Congress ends within ten days of the date on which the next Congress convenes, the President may return the bill with his objections to the new Congress, which then could conduct an override vote. This is not just a hypothetical possibility. In1983, the 98th Congress convened less than ten days after the sine die adjournment of the 97th Congress; in a more extreme case, the 39th Congress adjourned sine die the morning of March 4, 1867, and the 40th Congressconvened that afternoon. Had the Committee been concerned with this problem when they were drafting Article I, Section 7, they would have dealt with it in its primary manifestation as well as in the context of the pocket veto. Third, you suggested that legislation such as H.R. 849, 101st Cong., 1st Sess. (1989), may be appropriate as a vindication of Congress’ view of theConstitution. We agree wholeheartedly that all three branches have obligations to the Constitution and must interpret it in order to perform their functions. Naturally, Members of Congress should base their votes on their understanding of the Constitution. H.R. 849, however, is not an exercise of Congress’ legislative power in the ordinary sense. The part of the bill towhich we object is a pure statement of a proposition of constitutional interpretation that can have no independent legal effect: whether any adjournmentor class of adjournments prevents the return of a bill depends on the meaning of the Pocket Veto Clause, and that meaning cannot be changed by ordinary legislation. Thus, the bill is a statement of congressional position rather than an actual legal rule. For that reason, we think it inappropriate for Congress to attempt to embody its view in a statute, thereby asking the President’s assent to a legal conclusion with which he disagrees.You also asked whether our interpretation of the Pocket Veto Clause undermines the accord that was reached under Presidents Ford and Carter, andindeed suggests that many bills may have become laws contrary to the understanding of President and Congress. As we understand it, the practice under Presidents Ford and Carter was to proceed as if the Pocket Veto Clause was applicable only after sine die adjournments of Congress, and to employ
return vetoes in all other circumstances.

’ M oreover, as you know, the Suprem e Court has also stated that the opportunity for prom pt reconsideration o f a bill is one of the purposes o f the Pocket Veto C lause. The Pocket Veto Case, 279 U.S. 655, 684-85 (1929).

105Congress and the President cannot change the meaning of the Pocket Veto

Clause by an understanding between themselves, and if they proceed on an incorrect premise as to the applicable constitutional rules their actions may not have the consequences they anticipate. When Congress is adjourned within the meaning of the Pocket Veto Clause on the tenth day after a bill has been presented, that bill is pocket vetoed unless the President signs it. Because the pocket veto operates automatically and not through any action of the President, this is true even if the President returns the bill to Congress
in what he believes to be a return veto. The President cannot choose whether to use a return veto or a pocket veto; by definition, the Pocket Veto Clause operates only when a return veto is impossible. Moreover, the President’s views as to the operation of the pocket veto do not affect the meaning of the Constitution. Therefore, if the position we take is correct, it is correct whether or not we take it, and the fact that the Department has espoused a particular reading of the Pocket Veto Clause will not effect the validity of any statute. As a consequence, some bills that Presidents Ford and Carter believed they had return-vetoed may in fact have been pocket-vetoed instead. As faras we know, however, this has no practical effect. The only difference between a return veto and a pocket veto is that a return veto is subject to override. We know of no bill that ostensibly became a law through an override of a supposed return veto that under our reading of the Constitution was in fact a pocket veto.4Finally, I would like to expand on what appears to have been some confusion during the hearing on the practical implications of our position for brief adjournments of Congress. The Court explained in Wright v. United States, 302 U.S. 583 (1938), that Congress, considered as a bicameral body, is adjourned whenever either House is adjourned for more than three days. This does not mean, however, that a bill will be subject to the Pocket Veto Clause whenever Congress takes a brief adjournment while the bill is pending before the President. Rather, the pocket veto operates only if the tenth day after presentment falls during an adjournment. This is true because, once again, the pocket veto is not a power of the President that he exercises affirmatively. Rather, pocket vetoes happen automatically on the tenth day after presentment if the President has not signed the bill. Thus, the Court’s reading of the Adjournment Clause requires, at most, attention to the scheduling of presentments, so that the tenth day after presentment does not fall during an adjournment of either House that is longer than three days.

JOHN O. McGINNIS Deputy Assistant Attorney General Office o f Legal Counsel

4 In addition, if P residents Ford and C arter proceeded on an incorrect understanding o f the Pocket Veto C lause, it is possible that bills may h ave been pocket vetoed when the President thought that they had becom e law w ithout his signature. W e know o f no such instances, however.

106