b'The Pocket Veto: Historical Practice and Judicial Precedent\n[The follow ing two m em oranda exam ine historical practice and judicial precedent under the Pocket\nVeto Clause o f the C onstitution, A rt. I, \xc2\xa7 7, cl. 2, in order to advise the President concerning the\nefficacy o f a p ocket veto during both intrasession and intersession adjournm ents of Congress.]\n\nI.\nFebruary 10, 1982\nM EM O R A N D U M OPINION FO R THE COUNSEL TO THE PRESIDENT\nThis m em orandum discusses generally the President\xe2\x80\x99s power to pocket veto\nlegislation, with specific reference to the President\xe2\x80\x99s pocket veto of H.R. 4353\nduring the recent intersession adjournm ent o f the 97th Congress.\nA rticle 1, \xc2\xa7 7, clause 2 of the Constitution provides:\nEvery Bill which shall have passed the House of Representatives\nand the Senate, shall, before it become a Law, be presented to the\nPresident of the United States; If he approve he shall sign it, but if\nnot he shall return it, with his Objections to that House in which it\nshall have originated, w ho shall enter the Objections at large on\ntheir Journal, and proceed to reconsider it. If after such Recon\xc2\xad\nsideration two thirds of that House shall agree to pass the Bill, it\nshall be sent, together w ith the Objections, to the other House, by\nw hich it shall likewise be reconsidered; and if approved by two\nthirds o f that House, it shall become a Law. . . . If any Bill shall\nnot be returned by the President w ithin ten Days (Sundays ex\xc2\xad\ncepted) after it shall have been presented to him, the Same shall be\na Law, in like M anner as if he had signed it, unless the Congress\nby their Adjournment prevent its Return, in which case it shall not\nbe a Law.\n(Em phasis supplied.) The italicized phrase is commonly referred to as the\n\xe2\x80\x9c pocket veto\xe2\x80\x9d provision because it empowers the President to prevent a bill\xe2\x80\x99s\nbecom ing law sim ply by placing it in his pocket\xe2\x80\x94 i.e., neither signing it nor\nreturning it with his objections to its House of origin. The functional difference\n134\n\n\x0cbetween ordinary vetoes and pocket vetoes is that the latter cannot be overridden\nby Congress.\nAs the President\xe2\x80\x99s recent pocket veto of H.R. 4353 demonstrates, the questions\nraised by the pocket veto provision have considerable practical significance. If,\ncontrary to the advice given orally by this Office, the pocket veto of H .R . 4353\nwas ineffective, that provision became law at the expiration of the ten-day period\n(Sundays excepted) after it was presented to the President. Because of the short\ntime period involved, and because of the possible adverse consequence of an\nerroneous decision to pocket veto a bill rather than return it to Congress with\nobjections, questions regarding the pocket veto provision often attain consider\xc2\xad\nable urgency and importance. We therefore believe that it is useful to examine in\nadvance the various issues arising under the pocket veto provision in a relatively\ncomprehensive fashion in order to advise you regarding the legality of pocket\nvetoes in situations that are likely to arise in the future.\nThe pocket veto provision appears to have been adopted without controversy\nby the Framers; the proceedings and debates of the Constitutional Convention\nshed no light on its meaning. Interpretation of the provision must therefore rely\non historical practice and on three pertinent judicial decisions: The Pocket Veto\nCase, 279 U .S. 655 (1929); Wright v. United States, 302 U .S. 583 (1938); and\nKennedy v. Sampson, 511 F.2d 430 (D .C. Cir. 1974).\n\nI. Historical Practice\nPresidents throughout our history have used the pocket veto power fre\xc2\xad\nquently\xe2\x80\x94 a fact which is not surprising in light of the tendency on the part of\nCongress to present a mass of legislation to the President just before it adjourns\nand in view of the convenience to the President of exercising a veto that cannot be\noverridden by Congress. M ost pocket vetoes have occurred after final adjourn\xc2\xad\nments of C ongress or intersession adjournments between the first and second\nsessions.1 Presidents have also pocket vetoed bills during intrasession adjourn\xc2\xad\nments2 of varying lengths,3 but this practice has been relatively unusual.4 The\nhistorical practice therefore strongly supports the pocket veto during final and\nintersession adjournm ents, but is inconclusive for intrasession adjournm ents.5\n1 See H ouse D oc. N o. 493, 70th C o n g ., 2d Sess. (1928) (m em orandum prepared by the A ttorney G eneral and\np resented to C ongress; relied on by Suprem e C ourt in The Pocket Veto Case, 2 7 9 U .S. 655 (1929)).\n2 T he A ttorney G eneral rendered an opinion in 1943 concluding that the pocket veto provision w as triggered by an\nadjournm ent w ithin th e first session o f the 78th C ongress w hich lasted from July 8 to Septem ber 14, 1943. 4 0 Op.\nA tt\'y G en. 274 (1943).\n3 See Office o f Legal C ounsel, Pocket Vetoes D uring Short H oliday R ecesses (Jan. 13, 1971), Pocket V etoes\nD uring A djournm ents o f C ongress W ithin a S ession (Nov 19, 1968).\n4 See Kennedy v Sampson, 511 F.2d at 4 4 2 -4 5 (appendix analyzing pocket vetoes d u n n g all in trasessio n\nadjournm ents o f m ore than three days since 1800)\n5 W hile highly relevant, the practice engaged in by the Executive Branch and generally acquiesced in by C o n g ress\nis not dispositive See The Pocket Veto Case, 279 U .S . at 690 (executive practice, acquiesced in b y the legislature, is\nentitled to \xe2\x80\x9c great re g a rd \xe2\x80\x9d but is \xe2\x80\x9c not absolutely binding on the ju d icial departm ent. .\n\xe2\x80\x9d ) (quoting State v South\nNorwalk, 77 C onn 2 5 7 , 264). It is ultim ately the province and duty o f the Judicial Branch to \xe2\x80\x9c say w hat the law is.\xe2\x80\x9d\nUnited States v N ix o n ,4 1 8 V .S .6 8 3 ,7 0 3 (l974),quotingM arburyy.M adison,5\\J S (J Cranch) 137, 177(1 8 0 3 ).\nExecutive practices, even ones o f long duration, m ust yteld to contrary jud icial interpretations.\n\n135\n\n\x0cII . Judicial Decisions\nA. The Pocket Veto Case\nThe Pocket Veto Case involved a Senate bill which authorized certain Indian\ntribes to bring suit against the United States in the Court of Claims. The bill\npassed both Houses and was d u ly presented to the President on June 24 ,1 9 2 6 . On\nJuly 3, 1926, the House of R epresentatives adjourned sine die and the Senate\nadjourned to N ovem ber 12, the date to w hich, sitting as a court of impeachment,\nit had previously adjourned fo r the trial of certain articles of im peachm ent.6 The\nJuly 3 adjournm ent was the final adjournm ent of the first session of the 69th\nCongress. The ten-day period (Sundays excepted) provided for presidential\naction under A rticle I, \xc2\xa7 7, clause 2 expired on July 6, 1926, three days after the\nfirst session o f Congress adjourned. The President neither signed the bill nor\nreturned it to the Senate and th e bill was not published as a law.\nContending that the bill had become a law without the President\xe2\x80\x99s signature,\nthe Indian tribes filed suit in the Court of Claims. The Court of Claims sustained\nthe U nited States\xe2\x80\x99 demurrer an d the Supreme Court affirmed unanimously.\nJustice S anford\xe2\x80\x99s opinion concluded that the word \xe2\x80\x9c adjournm ent\xe2\x80\x9d was not\nlim ited to final adjournments o f a Congress, but also included interim adjourn\xc2\xad\nm ents between or within sessions. The determ inative question, therefore, was\nnot w hether C ongress had \xe2\x80\x9c adjourned,\xe2\x80\x9d but rather whether the adjournment was\none which \xe2\x80\x9c prevent[ed]\xe2\x80\x9d the President from returning a bill to the House in\nwhich it originated in the time allowed.\nThe specific question, in the C ourt\xe2\x80\x99s view, was whether the intersession\nadjournm ent o f C ongress prevented the President from returning the bill, or\nw hether the Constitution was satisfied by the possibility of delivery to an officer\nor agent o f the H ouse of origin, to be held by him and delivered to the House\nwhen it resum ed its sittings for th e next session. The Court concluded that \xe2\x80\x9c the\n\xe2\x80\x98H ouse\xe2\x80\x99 to which the bill is to be returned, is the House in session.\xe2\x80\x9d 279 U .S. at\n682. It followed that\nunder the constitutional mandate [the bill] is to be returned to the\n\xe2\x80\x9c H ouse\xe2\x80\x9d when sitting in an organized capacity for the transaction\nof business, and having authority to receive the return, enter the\nPresident\xe2\x80\x99s objections on its jou rn al, and proceed to reconsider\nthe bill; and that no return can be m ade to the House when it is not\nin session as a collective body and its members are dispersed.\nId. at 683.\nIn rejecting the contention that delivery to an agent sufficed when the House\nwas not in session, the Court observed that Congress had never authorized agents\nto receive bills returned by the President during its adjournment. Moreover,\n6 T h e im peachm ent pro ceed in g s were b ro u g h t against G eo rg e W. E nglish, a federal d istrict ju d g e\nresigned b efore th e dale for th e Senate trial. S ee 68 C ong. R ec 3 - 4 (1926).\n\n136\n\nEnglish\n\n\x0cdelivery to such an agent, even if authorized by Congress, \xe2\x80\x9c would not comply\nwith the constitutional mandate.\xe2\x80\x9d Id. at 684:\nThe H ouse, not having been in session when the bill was delivered\nto the officer or agent, could neither have received the bill and\nobjections at that time, nor have entered the objections upon its\njournal, nor have proceeded to reconsider the bill, as the Constitu\xc2\xad\ntion requires; and there is nothing in the Constitution which\nauthorizes either House to make a nunc pro tunc record of the\nreturn of a bill as of a date on which it had not, in fact, been\nreturned. M anifestly it was not intended that, instead of returning\nthe bill to the House itself, as required by the constitutional\nprovision, the President should be authorized to deliver it, during\nan adjournm ent of the House, to some individual officer or agent\nnot authorized to make any legislative record of its delivery, who\nshould hold it in his own hands for days, weeks or perhaps\nmonths\xe2\x80\x94 not only leaving open possible questions as to the date\non which it had been delivered to him , or whether it had in fact\nbeen delivered to him at all, but keeping the bill in the meantime\nin a state of suspended animation until the House resumes its\nsittings, with no certain knowledge on the part of the public as to\nwhether it had or had not been seasonably delivered, and neces\xc2\xad\nsarily causing delay in its reconsideration which the Constitution\nevidently intended to avoid. In short, it was plainly the object of\nthe constitutional provision that there should be a timely return of\nthe bill, which should not only be a matter of official record\ndefinitely shown by the journal of the House itself, giving public,\ncertain and prom pt knowledge as to the status of the bill, but\nshould enable Congress to proceed immediately with its recon\xc2\xad\nsideration; and that the return of the bill should be an actual and\npublic return to the House itself, and not a fictitious return by a\ndelivery of the bill to som e individual which could be given a\nretroactive effect at a later date when the time for the return of the\nbill to the House had expired.\nId.\nB. Wright v. United States\nWright v. United States, 302 U .S. 583 (1938), involved a Senate bill which\ngranted jurisdiction to the Court of Claims to adjudicate the petitioner\xe2\x80\x99s claim\nagainst the U nited States. The bill passed both Houses during the first session of\nthe 74th Congress and was presented to the President on April 24, 1936. On\nMay 4 ,1 9 3 6 , the Senate recessed until noon on May 7; the House of Representa\xc2\xad\ntives remained in session. Because the Senate was in recess for not more than\nthree days, it was not necessary to obtain the consent of the House of Representa\xc2\xad\n137\n\n\x0ctives pursuant to A rticle I, \xc2\xa7 5 , clause 4 of the C onstitution.7 On May 5, the tenth\nday (Sundays excepted) after receiving the bill, the President returned it to the\nSenate with a m essage stating his objections. The bill and the message were\ndelivered to the Secretary of the Senate. The Senate received the President\xe2\x80\x99s\nm essage when it reconvened o n May 7 and referred the bill and the President\xe2\x80\x99s\nm essage to com m ittee. No further action was taken.\nT he petitioner presented his petition to the Court of Claims, contending that\nthe P resident\xe2\x80\x99s veto of the bill was ineffective because, under The Pocket Veto\nCase, delivery to an agent o f the Senate did not constitute a constitutionally\nsufficient retu rn .8 The Court of Claim s denied the petition and the Supreme Court\naffirm ed. The C o u rt\xe2\x80\x99s opinion, per C hief Justice Hughes, held only that the\nPresident\xe2\x80\x99s veto of the legislation was effective; it did not directly concern the\npocket veto. In holding that the President was not prevented from vetoing the bill\nby the tem porary recess of the Senate, however, the opinion necessarily implied\nthat a pocket veto of the bill would have been ineffective. Moreover, the C ourt\xe2\x80\x99s\nanalysis contained broad language which stands in sharp contrast to The Pocket\nVeto Case.\nThe C ourt held, first, that \xe2\x80\x9c Congress\xe2\x80\x9d had not adjourned when only one of its\nH ouses was in recess. Because \xe2\x80\x9c Congress\xe2\x80\x9d was comprised of both Houses, the\nrecess of the Senate while the H ouse rem ained in session did not amount to an\nadjournm ent of Congress.\nSecond, the C ourt rejected the argument that the President was prevented from\nreturning the bill because of the Senate\xe2\x80\x99s recess. It noted that the Constitution did\nnot forbid return o f a bill to an agent of the Congress such as the Secretary of the\nSenate. N or was there any practical difficulty in returning the bill during a recess:\nThe organization of the Senate continued and was intact. The\nSecretary of the Senate was functioning and was able to receive,\nand did receive, the bill. . . . There is no greater difficulty in\nreturning a bill to one of the two Houses when it is in recess during\na session o f Congress than in presenting a bill to the President by\nsending it to the White House in his tem porary absence. . . . To\nsay that the President cannot return a bill when the House in which\nit originated is in recess during the session of Congress, and thus\nafford an opportunity fo r the passing of the bill over the Presi\xc2\xad\nd en t\xe2\x80\x99s objections, is to ignore the plainest practical considerations\nand by im plying a requirement o f an artificial formality to erect a\nbarrier to the exercise o f a constitutional right.\nId. at 5 8 9 -9 0 .\nThe C ourt distinguished The Pocket Veto C ase on the ground that the dangers\nwhich the C ourt had envisaged with respect to an intersession adjournment by\n7 A rtic le I, \xc2\xa7 5 , clause 4 provides: \xe2\x80\x9c N either H o u se ,d u rin g the S ession o f C o n g re ss,sh a ll, w ithout the C onsent of\nthe other, adjourn for m ore than three days, n o r to any other Place than that in w hich the tw o H ouses shall b e sitting.\xe2\x80\x9d\n8 T h e p etitio n er co n ten d ed that the bill had n o t been pocket vetoed because the pocket veto provision applies only\nw hen both H ouses have adjourned. Brief fo r Petitioner in Wright v United States at 18\n\n138\n\n\x0cboth Houses were illusory in the context of an intrasession adjournment by one\nHouse for a period of three days or less. In the case of such a brief recess, there\nwas no danger that the public would not be promptly and fully informed of the\nreturn of the bill with the President\xe2\x80\x99s objections, or that the bill would not be\nproperly safeguarded or duly recorded upon the journal o f the House, or that it\nwould not be subject to reasonably prompt action by the House. Id. at 595.\nThe Court specifically declined to address the question whether an intrasession\nadjournment of m ore than three days, for which the consent of both Houses is\nrequired pursuant to Article I, \xc2\xa7 5, clause 4, would prevent the return of a bill and\nthereby trigger the pocket veto provision. Id. at 598. It held only that\nwhere the Congress had not adjourned and the House in which the\nbill originated is in recess for not more than three days under the\nconstitutional permission while Congress is in session, the bill\ndoes not become a law if the President has delivered the bill with\nhis objections to the appropriate officer of that House within the\nprescribed ten days and the Congress does not pass the bill over\nhis objections by the requisite votes.\nId.9\nC. Kennedy v. Sampson\nKennedy v. Sampson, 511 F.2d 430 (D .C . Cir. 1974), involved a Senate bill\nwhich was presented to the President on D ecem ber 14, 1970. On Decem ber 22\nboth Houses adjourned pursuant to a concurrent resolution, the Senate until\nDecember 28 and the House until December 29. The Senate authorized its\nSecretary to receive presidential messages during the adjournment. On D e\xc2\xad\ncem ber 24 the President issued a memorandum announcing that he would\nwithhold his signature from the bill; the President did not, however, return the bill\nto the Senate. T he ten-day period (Sundays excepted) for presidential approval\nexpired on Decem ber 25. The bill was not published as a law.\nThe plaintiff, a United States Senator who had voted for the measure, brought\nsuit in district court against the Administrator o f the General Services Admin\xc2\xad\nistration and the Chief of W hite House Records seeking a declaration that the bill\nhad become law and an order requiring the defendants to publish the bill as law.\nThe defendants contended that the bill had been validly pocket vetoed and had not\nbecome law. T he district court granted summary judgm ent for the plaintiff and\nthe U nited States C ourt of A ppeals for the D istrict of C olum bia C ircuit\naffirm ed.10\nThe court, p e r Judge Tam m ,11 began by observing that the pocket veto pow er is\nan exception to the general rule that Congress may override the President\xe2\x80\x99s veto.\n9 Justice Stone w rote an opinion, jo in ed by Ju stice B randeis, w hich agreed that the bill did not becom e a law but\nco n clu d ed, contrary to the m ajority opinion, that the bill had been validly pocket vetoed Justice C ardozo to o k no\npart in the decision o f the case\n10 The S olicitor G en eral determ ined not to petition the S uprem e C ourt for a w rit o f ce rtio ran\n11 Ju d ges fiahy and B azelon concurred in the opinion\n\n139\n\n\x0cAs su ch , in the cou rt\xe2\x80\x99s opinion, the power m ust be limited by the specific purpose\nw hich it was intended to serve. Applying this narrow construction, the court held\nthat the congressional adjournment at issue fell within the rule of Wright v. United\nStates rather than that o f The Pocket Veto C ase. The court found it immaterial that\nthe adjournm ent was for five days rather than three days, as in Wright. N or was it\nsignificant that both Houses had adjourned, rather than only the House of origin\nas in Wright, since the presence or absence o f the non-originating House could\nhave no relevance to the validity o f the pocket veto.\nMoreover, Judge Tamm concluded that a pocket veto would have been inap\xc2\xad\npropriate even under the standards set forth in The Pocket Veto Case: \xe2\x80\x9c [t]he\nm odem practice o f Congress w ith respect to intrasession adjournments creates\nneither of the hazards\xe2\x80\x94 long delay and public uncertainty\xe2\x80\x94 perceived in The\nPocket Veto C a se .\xe2\x80\x9d 511 F.2d at 440. Intrasession adjournments virtually never\ninvolved interruptions of the m agnitude considered in The Pocket Veto Case; and\n\xe2\x80\x9c [m ]odem m ethods of com m unication,\xe2\x80\x9d id. at 441, make the return of a\ndisapproved bill to the appropriate officer o f an originating House a matter of\npublic record. T he court therefore concluded broadly that\nan intrasession adjournment of Congress does not prevent the\nPresident from returning a bill which he disapproves so long as\nappropriate arrangem ents are made for the receipt of presidential\nmessages during the adjournment.\nId. at 437. See also id. at 4 4 2 .12\n\nIII. Interests Served by the Pocket Veto\nT hese cases identify three distinct interests\xe2\x80\x94 sometimes conflicting, som e\xc2\xad\ntim es reinforcing\xe2\x80\x94 served by the pocket veto provision of the Constitution:\n(1) the interest in ensuring that both Congress and the President have their due\nsay in the process of lawmaking (the interest in mutuality); (2) the interest in\navoiding delay in the process by which Congress determines whether to override\na presidential veto (the interest in prompt reconsideration); and (3) the interest in\nensuring public awareness of, and certainty about, the status of legislation (the\ninterest in public certainty).\nA. Mutuality\nA rticle I, \xc2\xa7 7 o f the Constitution provides generally that both the President and\nthe C ongress play a role in the lawmaking process\xe2\x80\x94 the President by approving\n12 Follow ing the Kennedy decision, the D epartm ent o f Justice issued a press release stating\nP resident Ford has determ ined that h e w ill use the return veto rather than the p ocket veto during\nintrasesston and in tersessio n recesses a n d adjournm ents o f th e C ongress, provided that the H ouse of\nC ongress to w hich th e bill and the P resident\xe2\x80\x99s objections m ust be returned according to the\nC onstitution has specifically authorized an officer or other agen t to receive return vetoes during such\np eriods.\nD epartm ent o f Ju stice P ress R elease, Apr. 13, 1 9 7 6 ,a t 2 [ N o t e * T h e im m ediate occasion for this p ressrelea se was\nthe consent ju d g m e n t in Kennedy v Jones, 4 1 2 F.Supp. 353 (D .D C . 1976) Ed.]\n\n140\n\n\x0cor vetoing legislation, the Congress by passing legislation initially and by\noverriding presidential vetoes. The Fram ers evidently intended that both\nbranches would play their assigned role whenever possible. As the Court said in\nWright v. United States, 302 U.S. at 596:\nT he c o n stitu tio n a l p ro v isio n s [fo r p re sid e n tial v eto, c o n \xc2\xad\ngressional override, and pocket veto] have two fundamental pur\xc2\xad\nposes: (1) that the President shall have suitable opportunity to\nconsider the bills presented to him, and (2) that the Congress shall\nhave suitable opportunity to consider his objections to bills and on\nsuch consideration to pass them over his veto provided there are\nthe requisite votes.\nThe Framers recognized that certain technical rules were necessary in order to\nprevent frustration of the interest in mutuality. See 1 J. Story, Commentaries on\nthe Constitution o f the United States \xc2\xa7 891 (5th ed. 1905). First, there was the\npossibility that the President would fail to act on a bill presented to him by\nCongress. Because the bill would not be signed, it would not become a law; but\nbecause the President would not return it with his objections to its House of\norigin, there would be no opportunity for Congress to override a veto. To avoid a\nde facto veto which would deprive Congress of its power to override, the Framers\nprovided that the President m ust act within ten days (Sundays excepted) or the bill\nwould become law as if he had signed it.\nThis solution, however, created a second problem. If Congress was in adjourn\xc2\xad\nment on the tenth day (Sundays excepted) after a bill was presented to the\nPresident, so as to prevent the President from returning the bill with his objec\xc2\xad\ntions, the bill would automatically become law on the expiration of the tenth day\nand the President would be deprived of his veto power. Congress could hold up\nthe presentation of legislation to the President until the day it went out of session,\nthereby essentially writing the President out of the lawmaking process. The\npocket veto power dealt with this problem by providing that a bill would not\nbecome law if the President failed to sign it and was prevented from returning it\nbecause of a congressional adjournm ent.13\nThe pocket veto serves the interest in mutuality because it achieves the best\npossible approximation of the shared lawmaking generally contemplated in\nArticle I, \xc2\xa7 7 in those situations in which the presidential veto and congressional\noverride powers cannot coexist. When the choice is between depriving the\nPresident of his veto or retaining the presidential veto but denying Congress the\npower to override, the interest in mutuality is best served by the latter alternative.\nCongress has power to avoid any possibility of a pocket veto by arranging to be in\nsession on the tenth day (Sundays excepted) after a bill is presented to the\nPresident, or by delaying presentation of a bill until a time when it is scheduled to\nbe in session on the tenth day (Sundays excepted) following. Moreover, even if a\n13 If the P resident signed the bill, it w ould becom e law notw ithstanding the ad journm ent of C ongress Edwards v\nUnited States, 286 U .S 482 (1932), La Abra Silver Mining Co v. United States, 175 U S 4 2 3 (1899)\n\n141\n\n\x0cbill is pocket vetoed, the Congress can simply reenact it when it returns to\nsession. See The Pocket Veto Case, 279 U .S. at 679 n.6. The President, on the\nother hand, in the absence o f a pocket veto would have no means of preventing\nC ongress from presenting bills to him on the last day before an adjournment, thus\npreventing him from exercising his veto. And when the bill became law, the\nPresident would have no way to repeal it without affirmative action by a majority\nof both Houses o f Congress. T h e interest in ensuring that both the President and\nC ongress play their assigned roles in lawmaking is thus better served by the\npresence of the pocket veto than by its absence.\nBecause the pocket veto does not provide for congressional override, it serves\nthe interest in mutuality only when, at the expiration of the ten-day period\n(Sundays excepted) following presidential receipt of a bill: (1) Congress has\nadjourned sine die at the end o f its final session and has thereby terminated its\nlegislative existence; or (2) C ongress has taken some other adjournment and has\nfailed to provide any effective means by which the President may return a bill\nduring the adjournment. O nly in these situations is the President unable to\nexercise his veto power by returning the bill with objections. In all other\nsituations, the interest in m utuality is served by an ordinary veto subject to\ncongressional override and is disserved by a pocket veto.\nB. Prompt Reconsideration\nThe pocket veto also serves the interest in ensuring the possibility of prompt\ncongressional reconsideration o f a bill following a presidential veto. In The\nPocket Veto C ase, for example, the C ourt was concerned that delivery to a\ncongressional agent during an intrasession adjournment would permit the agent\nto hold the disapproved bill fo r \xe2\x80\x9c days, weeks or perhaps months, . . . keeping\nthe bill in the m eantim e in a state of suspended animation . . . and necessarily\ncausing delay in its reconsideration which the Constitution evidently intended to\navoid.\xe2\x80\x9d 279 U .S . at 684. In Wright v. United States, 302 U .S. 583, the Court\nem phasized that a three-day recess of one House did not pose the dangers of\n\xe2\x80\x9c undue delay,\xe2\x80\x9d identified in The Pocket Veto Case, because a mere \xe2\x80\x9c brief,\xe2\x80\x9d\n\xe2\x80\x9c sh o rt,\xe2\x80\x9d and \xe2\x80\x9c tem porary\xe2\x80\x9d recess, extending for a \xe2\x80\x9c very limited time only,\xe2\x80\x9d did\nnot create the danger that a vetoed bill \xe2\x80\x9c would not be subject to reasonably\nprom pt action by the House.\xe2\x80\x9d Id. at 595. And Kennedy v. Sampson recognized\nthat \xe2\x80\x9c long d elay \xe2\x80\x9d was one of the hazards perceived in The Pocket Veto Case. 511\nF.2d at 440.\nThe interest in prompt reconsideration does not lend itself to precise quan\xc2\xad\ntification. The adjournment at issue in The Pocket Veto Case lasted roughly five\nm onths; the adjournm ents at issue in Wright v. United States and Kennedy v.\nSampson were of three and five days, respectively. Between these figures lies a\nbroad area of uncertainty, in w hich the argum ent favoring the validity of a pocket\nveto becom es stronger as the period of adjournment increases.\nThe interest in prom pt reconsideration will sometimes reinforce the interest in\nm utuality. A final adjournment o f Congress, in which the interest in mutuality is\n\n142\n\n\x0cstrongly im plicated, will typically continue for a substantial period of time.\nSimilarly, non-final adjournments in which Congress has appointed agents to\nreceive presidential m essages, in which the interest in m utuality is not served by\na pocket veto, are also typically of brief duration. On the other hand, non-final\nadjournments can extend for a considerable period of time and final adjournments\ncan be very brief. In some cases, therefore, the interest in mutuality and the\ninterest in prompt reconsideration will conflict.\nC. Public Certainty\nThe third interest underlying the pocket veto provision is that of ensuring that\nthe public is reliably informed about the process of lawmaking. In The Pocket\nVeto Case, the Court said that return of a disapproved bill to a congressional agent\nduring an intersession adjournm ent would not provide \xe2\x80\x9c certain knowledge on the\npart of the public as to whether it had or had not been seasonably delivered\xe2\x80\x9d\nbecause return of the bill would not be \xe2\x80\x9c a matter of official record definitely\nshown by the journal of the House itself, giving public, certain and prompt\nknowledge as to the status of the bill. . . . \xe2\x80\x9d 279 U .S. at 684-85. In Wright v.\nUnited States, the Court recognized that the pocket veto provision safeguarded\nagainst \xe2\x80\x9c [t]he prospect that . . . the public may not be promptly and properly\ninformed of the return of the bill with the President\xe2\x80\x99s objections, or that the bill\nwould not be properly safeguarded or duly recorded upon the journal of the\nH ouse,\xe2\x80\x9d although in the context of a three-day recess of one House only, the\nCourt found this danger was \xe2\x80\x9c wholly chimerical.\xe2\x80\x9d 302 U .S. at 595. And\nKennedy v. Sampson recognized that the pocket veto provision was designed, in\npart, to ensure public certainty. See 511 F.2d at 440.\nThe interest in public certainty seems to have factual and legal components.\nFactually, there is a strong interest in guaranteeing that the public has full\nknowledge of the President\xe2\x80\x99s decision to veto a bill, and of the reasons for that\ndecision as stated in the President\xe2\x80\x99s objections. Legally, there is a strong interest\nin providing the public with certain knowledge whether the bill has becom e law.\nObviously, segm ents of the public affected by a bill will often have a compelling\ninterest in knowing whether the bill has become a law so that they may structure\ntheir actions in order to comply with the law or to obtain the benefits provided\nthereunder.\nAs a practical matter, as the Court observed in Kennedy v. Sampson, the\ninterest in obtaining the facts of a veto will usually be well served by the\navailability of \xe2\x80\x9c [m ]odem methods of com m unication,\xe2\x80\x9d 511 F.2d at 441. Presi\xc2\xad\ndential vetoes are widely reported in the press. The problem of legal uncertainty,\non the other hand, remains pressing today. The need for legal certainty requires\nhard-and-fast rules that can easily and clearly be applied in individual cases. In\nthis respect, the interest in public certainty stands in tension with the interest\nin prompt reconsideration since the latter interest increases incrementally in\n143\n\n\x0cstrength with the length of an adjournm ent and is not susceptible to resolution\nthrough a clear, non-arbitrary ru le .14\nThe interest in public certainty reinforces the interest in mutuality in the case\nof final adjournm ents. In the case of non-final adjournments, the interest in\npublic certainty might occasionally conflict with the interest in mutuality when\nthere are legal questions regarding whether Congress has designated an agent to\nreceive presidential messages during its adjournment.\n\nIV.\nThe above analysis provides som e guidance as to the validity of pocket vetoes\nin a variety of recurring situations.\nA. Final Adjournments\nA pocket veto is certainly appropriate after the final adjournment of a Con\xc2\xad\ngress. If it were not, there would be a serious question as to whether the pocket\nveto provision o f the Constitution had any meaning at all. That pocket vetoes are\nappropriate after a final adjournment was settled in The Pocket Veto C ase15 and\nhas not been questioned by the subsequent decisions which narrowed The Pocket\nVeto Case in other respects. Moreover, in the context of a final adjournment of\nCongress all three interests served by the pocket veto provision suggest the\nappropriateness of a pocket veto. W ithout a pocket veto, the President could be\ndenied his proper role in lawmaking by the presentation of numerous bills\ntowards the end of the final session of Congress (interest in mutuality); final\nadjournm ents are often lengthy (interest in prompt reconsideration); and a rule\nproviding for pocket vetoes in this situation is capable of hard-and-fast applica\xc2\xad\ntion (interest in public certainty).\nAccordingly, the President m ay pocket veto bills after the final adjournment of\na Congress without fear that his veto will be ineffective and the bills will become\nlaw.\nB. Intersession Adjournments\nWe also believe the President may pocket veto bills during intersession\nadjournm ents. Adjournments between sessions are typically accomplished by\nmeans of concurrent resolutions16 adjourning the session sine d ie .17 The Presi\xc2\xad\n14 Judge T am m \xe2\x80\x99s distin ctio n between intrasession and intersession adjournm ents in Kennedy v. Sampson appears\nbased, largely, on the need for hard-and-fast rules in this area. A sh arp distinction betw een intersession and\nintrasession adjournm ents w ould be inappropriate if the only criterion w ere the length o f an adjournm ent, since\nw hile intersession ad jo u rn m en ts are also generally relatively lengthy and intrasession adjournm ents relatively brief,\nthis rs not alw ays the case\nM \xe2\x80\x9c It is also co n ced ed , as w e understand, that the P resident is necessarily prevented from returning a bill by a\nfinal adjournm ent o f th e C o n g ress, since su c h adjournm ent term inates the legislative existence o f the C o n g ress and\nm akes it im possible to return th e bill to e ith e r H ouse.\xe2\x80\x9d 279 U .S at 681.\nIh A co ncurrent resolution is required by A rticle I, \xc2\xa7 5 , clause 4 , pro h ib itin g eith er H o u se from adjourning for\nm ore than three days w ithout the consent o f the other. See note 7 supra\n17 A sine die ad jo u rn m en t is necessary because any adjournm ent to a date certain w ithin the session w ould not\nterm inate the sessio n . In The Pocket Veto C ase Congress adjourned its first session even though the Senate adjourned\nto a date certain w ithin the session rather th a n sine die. T h is w as because o f an unusual situatton in w hich the Senate\nagreed to return to p erform non-legislative b usiness, th e consideration o f certain articles o f im peachm ent A fter\nm eeting to co n sid e r these artic le s, the S en ate, sitting as a court o f im peach m en t, voted to adjourn sine die See note 6\nand accom panying te x t, supra.\n\n144\n\n\x0cdent\xe2\x80\x99s pocket veto of H .R . 4353 on December 29, 1981, occurred during a sine\ndie adjournm ent of the first session o f the 97th C ongress, beginning D e\xc2\xad\ncember 16, 1981.18 By joint resolution, Congress agreed to reconvene for the\nsecond session on January 2 5 ,1 9 8 2 .19 In this section we confirm the advice given\norally by this Office that the President was authorized to pocket veto H.R. 4353.\nThe Pocket Veto Case stands at least for the proposition that a pocket veto is\nappropriate during an intersession adjournment. The Court in Wright, dis\xc2\xad\ntinguishing The Pocket Veto Case, strongly implied that the case retained force in\nthe context o f intersession adjournments:\nHowever real th[ej dangers [envisaged by the Court in The Pocket\nVeto Case] may be when Congress has adjourned and the mem\xc2\xad\nbers of its Houses have dispersed at the end of a session, the\nsituation with which the Court was dealing, they appear to be\nillusory when there is a mere tem porary recess.\n302 U .S. at 595. Similarly, the court in Kennedy v. Sampson limited its holding to\nintrasession adjournments and sharply distinguished these from intersession\nadjournments.\nAlthough we believe, and have frequently advised, that the pocket veto is\nappropriate in the context of intersession adjournments, we recognize that\nobjections could be made to this conclusion based on an analysis of the interests\nunderlying the pocket veto provision. The interest in mutuality is not particularly\nstrong in the case of a pocket veto during an intersession adjournment, at least so\nlong as the House of origin has appointed an agent to receive presidential\nmessages. The President could veto the bill and return it, together with his\nobjections, to the agent who would lay the m atter before the House for recon\xc2\xad\nsideration upon its return. Thus the President would not be deprived of his power\nto veto legislation. A pocket veto, on the other hand, arguably disserves the\ninterest in m utuality in this circumstance because it would deprive Congress of its\npower to override. The interest in prompt reconsideration is served by a pocket\nveto during lengthy intersession adjournments but not by pocket vetoes during\nbrief intersession adjournments. Thus, pocket vetoes during brief intersession\nadjournments are somewhat more vulnerable than those during lengthy interses\xc2\xad\nsion adjournm ents. However, we believe that the interest in public certainty\njustifies a hard-and-fast rule that pocket vetoes are always appropriate during\nintersession adjournm ents. See note 14 supra. The alternative of a rule based\nupon the length of an adjournment lacks any constitutional basis. The alternative\nof a rule that intersession pocket vetoes are not appropriate could seriously\nfru stra te th e in terest in p ro m p t re c o n sid e ra tio n in the case o f len g th y\nadjournm ents.\n\'* See S . C on. R es 57, 97th C ong -. 1st Sess , 127 C ong. R ec. S15631 (daily ed Dec 16. 1981)\n19 See H J . Res 37 7 , 97lh C ong , 1st Sess , 127 C ong. Rec. H 9638 (daily ed Dec 16, 1981).\n\n145\n\n\x0cIt is our opinion, therefore, that the President may validly pocket veto bills\nduring all intersession adjournm ents.20 Accordingly, the President\xe2\x80\x99s pocket veto\nof H .R . 4353 was effective and prevented the bill from becoming law.\nC. Intrasession Adjournments\nAny decision to pocket veto legislation during an intrasession adjournment\nwould in all probability be met with an im m ediate court challenge in which the\nprospects that the Executive\xe2\x80\x99s position will be sustained are uncertain at best.\nWright v. U nited States rejected the contention that the President could pocket\nveto legislation during a three-day intrasession adjournment of the House of\norigin. A lthough the Wright decision contained language that could be read as\nlim ited to adjournm ents of three days or less, for which the consent of the other\nH ouse is not required under A rticle I, \xc2\xa7 5, clause 4, the subsequent decision in\nKennedy went further. Kennedy involved, on its facts, a recess of both Houses for\nw hich the consent of the other House was required. Moreover, the court in\nKennedy clearly stated that pocket vetoes are never appropriate during intrases\xc2\xad\nsion adjournm ents.\nThe rule adopted by the C ourt in Kennedy may best be understood by\nexam ining the interests underlying the pocket veto provision. The interest in\nm utuality is disserved by the pocket veto during intrasession adjournments\nbecause the President is not disabled from returning a bill with his objections so\nlong as the H ouse of origin has em powered an agent to receive presidential\nm essages. The interest in prom pt reconsideration is served only during lengthy\nintrasession adjournm ents, which have always been uncommon and which have\nbecom e increasingly rare in recent years. The interest in public certainty would\nbe served by a hard-and-fast rule perm itting pocket vetoes during all adjourn\xc2\xad\nments of the H ouse of origin w hich require the consent of the other House under\nA rticle I, \xc2\xa7 5, clause 4; but the Kennedy and Wright decisions indicate that the\ncourts are m ore likely to endorse a flat rule against any pocket vetoes during\nintrasession adjournments. It could plausibly be argued, however, that the\ninterest in public certainty is equally served by a rule permitting pocket vetoes\nduring adjournm ents lasting m ore than a set period of time. For example, the\ninterest in public certainty would be served by a rule permitting pocket vetoes\nduring adjournm ents of ten days or more.\nA pocket veto during an intrasession adjournment would be directly contrary\nto the language in Kennedy and inconsistent with at least the spirit of Wright. The\ninterests underlying the pocket veto provision do not clearly resolve the question\nw hether pocket vetoes are appropriate during intrasession adjournments. This is\nnot to say that a pocket veto should never be considered during a session. There is\nroom to argue that Kennedy was an erroneous decision and that the broad dicta in\n20 P ocket vetoes d u rin g intersession adjournm ents are, we b eliev e, valid w hether o r not the H ouse o f o rigin has\nap p o in ted an agent to receive presidential m essages It appears that the H ouse o f Representatives d id not appoint\nsuch an agent du rin g the intersession ad jo u rn m en t o f the 97th C ongress\n\n146\n\n\x0cWright should not be followed today. It must be recognized, however, that such an\nargument would face an uphill battle in the courts.\nWe would recommend that the President not pocket veto legislation during\nintrasession adjournm ents unless he is willing to risk an almost certain court\nchallenge in which he may not be successful. If the President does wish to\nexercise his pocket veto, he may wish to choose a bill which would not\nappreciably damage his program if it were enacted into law.21 We would advise\nthat the President not pocket veto bills unless the intrasession adjournm ent\ninvolved extends for a significant period of time\xe2\x80\x94 ten days at least\xe2\x80\x94 and that both\nHouses be in adjournment on the date set for return of the bill.\nD. One House Only Adjourns Sine Die\nAn intermediate case is that in which one House adjourns sine die and the other\nremains in session.22 Read broadly, Wright v. United States would preclude a\npocket veto since that case stated that the adjournment of one House only does not\ntrigger the pocket veto provision. See 302 U .S. at 587-88. This clearly was not\nthe basis for the C o u rt\xe2\x80\x99s decision, however, since the Court expressly reserved the\nquestion whether a one-House adjournment lasting for more than three days\nwould \xe2\x80\x9c prevent\xe2\x80\x9d the return of a vetoed bill. Id. at 598. See Kennedy v. Sampson\nat 440 n.29.\nWe are of the opinion that a pocket veto would be effective when the House of\norigin has adjourned sine die at the end of a final session. A similar conclusion is\nappropriate when the House o f origin has remained in session and the other\nHouse has adjourned sine die at the end of its final session, since it would be\nimpossible in this situation for Congress as a whole to override the President\xe2\x80\x99s\nveto. Somewhat more difficult is the situation in which the House of origin has\nadjourned sine die at the end of the first session and the other House has remained\nin session. This Office has advised that either a pocket veto or a return veto would\nbe appropriate in this situation.23 However, a pocket veto would probably be\nineffective when the House of origin remains in session and the other House\nadjourns sine die at the end of the first session.\nV. Miscellaneous Problems\nFinally, we address certain miscellaneous problems which have arisen in\nconnection with the pocket veto.\nA. Procedure in Uncertainty\nThe President is placed in a somewhat difficult position when he wishes to veto\na bill but is uncertain whether or not he has authority to exercise the pocket veto.\n21 H R. 4353, w hich the P resident pocket vetoed on D ecem ber 29, 1981, is an exam ple o fa g o o d test case. A s the\nPresident noted in his veto statem ent, the m easure \xe2\x80\x9c w ould benefit the creditors o f a single large asset b an k ru p tcy \xe2\x80\x9d\nand was in effect an \xe2\x80\x9c effort to co n fe r special relief m the guise of general legislation." 17 W eekly Com p. Pres D oc.\n1429 (1981)\n22 D uring the first session o f th e 96th C ongress, for exam ple, the Senate adjourned sine die: the H ouse d id not\nadjourn sine die but held pro form a sessions up to and including the date it reconvened for the second sessio n .\n23 M em orandum for H onorable Lloyd N Cutler, Jan 2. 1980\n\n147\n\n\x0cIf the President attem pts a pocket veto, there is always the danger that his action\nwill be ineffective and that the bill will be held to have become law without his\nsignature. On the other hand, if h e attempts to return the bill with his objections to\nthe House of origin, there is the danger that his actions will undermine the\nargum ent, which he might wish to make in a future case, that he was \xe2\x80\x9c prevented\xe2\x80\x9d\nfrom returning the bill within the meaning of the pocket veto provision.24\nThis dilem m a is not fully resolvable; difficulties will persist so long as the\ncontours of the pocket veto pow er remain indistinct. We believe that the President\nwould be justified in taking eith er of two courses of action. First, he could\nestablish a policy of pocket vetoing all bills during final adjournments, interses\xc2\xad\nsion adjournm ents, and intrasession adjournments lasting for a set period of time\nor longer. This policy would have the virtue of consistency and would frame the\nconstitutional issues sharply for a court challenge. On the other hand, it must be\nrecognized that this policy would pose serious litigation risks if the policy was to\npocket veto bills during intrasession adjournm ents of relatively brief duration.\nSecond, the President could adopt a case-by-case approach to the problem,\ntaking account of the degree o f litigation risk and of the importance to the\nPresident\xe2\x80\x99s program that the bill not be enacted. If the bill is unimportant to the\nPresident\xe2\x80\x99s program and the chances of success in court appear high, the better\ncourse may be to pocket veto.25 If the bill is im portant or the chances of success\nappear low, the better course may be to return the bill with objections which\nexplicitly state that the President believes he would be within his right to pocket\nveto the legislation.\nB. Recess Appointments\nA rticle II, \xc2\xa7 2, clause 3 of the Constitution provides: \xe2\x80\x9c The President shall have\nPower to fill up all Vacancies that may happen during the Recess of the Senate, by\ngranting C om m issions which shall expire at the end of their next Session.\xe2\x80\x9d The\nPresident\xe2\x80\x99s power to make recess appointm ents has been the subject of some\nuncertainty and disagreement w ith Congress in recent years. The recess appoint\xc2\xad\nm ent and pocket veto powers are related because of the similarity between the\nconcepts of a \xe2\x80\x9c recess\xe2\x80\x9d of the Senate in which the President can make temporary\nappointm ents w ithout obtaining the advice and consent of the Senate and an\n\xe2\x80\x9c adjournm ent\xe2\x80\x9d o f the House o f origin w hich, if it prevents the return of a bill\nwith objections, will permit th e President to prevent the bill from becoming law\nwithout subm itting his veto to a possible congressional override. Practice under\n24 A d ifferent problem m ay a n se when th e P resident w ishes to en su re that a bill w hich has been presented to him\nless than ten days (S undays excepted) b efo re an adjournm ent b eco m es law. If the President fails to sign the b ill, there\nis no g u aran tee that the bill w ill autom atically becom e law upon the expiration o f the tim e period since it may have\nbeen pocket vetoed T h is problem does n o t pose a serious d ilem m a, however, for the President can sim ply sign the\nbill w ithin the ten-day p erio d , thus e n su rin g that the bill becom es law w h ile p reserving his argum ents under the\npocket veto provision. It has long been se ttle d that the P resident m ay sign legislation after C ongress has adjourned\nSee note 13, supra\n25 To avoid an im plication that he has exercised a return rather than a pocket veto, the President should not deliv er\na m essage to the H ouse o f origin stating h is objections if he intends to exercise the pocket veto power.\n\n148\n\n\x0cthe pocket veto provision may therefore have some bearing on an interpretation of\nthe scope of the recess appointm ent power.\nThere are sound reasons to believe that the President has authority to make\nrecess appointments in situations in which a pocket veto might well be inap\xc2\xad\npropriate. First, even if \xe2\x80\x9c recess\xe2\x80\x9d and \xe2\x80\x9c adjournm ent\xe2\x80\x9d have the same meaning in\nthe Constitution, this fact would not equate the pocket veto and recess appoint\xc2\xad\nment powers. The decisions holding that the President could not pocket veto bills\nduring brief intrasession adjournments were not premised on the notion that these\nwere not \xe2\x80\x9c adjournments\xe2\x80\x9d in the constitutional sense; rather, they were bottomed\non the theory that, although they were adjournments, they did not \xe2\x80\x9c prevent\xe2\x80\x9d the\nreturn of disapproved bills. Second, it is by no means clear that \xe2\x80\x9c adjournm ent\xe2\x80\x9d\nand \xe2\x80\x9c recess\xe2\x80\x9d do have the same meaning in the Constitution. In common\nparlance, the word \xe2\x80\x9c recess\xe2\x80\x9d connotes a brief break in continuity, whereas an\n\xe2\x80\x9c adjournm ent\xe2\x80\x9d may include relatively brief periods but will more typically refer\nto a longer or indefinite suspension of activity. It is therefore possible that a very\nbrief suspension will amount to a \xe2\x80\x9c recess\xe2\x80\x9d but not an \xe2\x80\x9c adjournment.\xe2\x80\x9d\nDespite the above analysis, the decisions in Wright v. United States and\nKennedy v. Sampson counsel caution in making recess appointments. This Office\nhas generally advised that the President not make recess appointments, if\npossible, when the break in continuity of the Senate is very brief.\nC. Nominations\nYou have expressed concern that the President may prejudice his ability to\npocket veto legislation if he sends nominations to the Senate during an interses\xc2\xad\nsion adjournm ent. We assume that a nomination would be delivered to the\nSecretary of the Senate, who is typically designated by that body to receive\nmessages from the President during adjournm ents.26 The sending of a nomination\nto the Senate would not, we believe, seriously prejudice the President\xe2\x80\x99s stand on\nthe pocket veto. Simply sending over a nomination has no legal significance\nunless and until the Senate takes action evidencing its understanding that a\nnomination has been validly made. At most, it would evidence the President\xe2\x80\x99s\nunderstanding that the Secretary of the Senate is indeed authorized to receive\npresidential messages\xe2\x80\x94 a question which is not seriously in doubt in light of the\nWright and Kennedy decisions and the explicit authorization to this effect ty p \xc2\xad\nically approved by the Senate. However, we can perceive no strong reason to send\nnominations to the Senate during intersession adjournments.\nTheodore B. O\n\nlson\n\nAssistant Attorney General\nOffice c f Legal Counsel\n\n26 See, e.g ., 127 C ong Rec S 15632 (daily ed. D ec. 16, 1981) T h e Secretary o f the Senate m ay have inherent\nauthority even in the absence of specific authonzation to receive presidential m essages See Wright v United States,\n302 U .S at 599 (S tone, J , dissenting in part)\n\n149\n\n\x0c'