The Pocket Veto Clause

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 as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.

—Martin Gold

Introduction

The Constitution provides the President a period to review legislation and grants Congress the authority to override a veto. (See Essay No. 36.) These powers can be in tension with each other if Congress adjourns before the President’s time for consideration has elapsed; either the President’s rights would be curtailed or Congress would lose the opportunity for an override. This essay discusses the President’s power to “pocket veto” legislation without being subject to congressional override and the meaning of “adjournment” as it affects the pocket veto.

The Constitutional Convention

On May 29, 1787, Resolution 8 of the Virginia Plan was presented to the delegates. It proposed that legislation should be subject to veto by a combination of the Executive and the Judiciary in a Council of Revision.¹ That resolution would be debated on June 4. Elbridge Gerry of Massachusetts opposed such a hybrid structure. He argued that the veto should rest only with the Executive with the possibility of a congressional override.²

James Wilson of Pennsylvania proposed that the President should have an absolute veto. Wilson stated that the power would seldom be used but contended that its presence would serve to limit the likelihood of extreme legislation.³ However, the absolute veto garnered little support. Benjamin Franklin of Pennsylvania cited the Pennsylvania experience to argue that it would invite executive corruption.⁴ Roger Sherman of Connecticut contended that no leader should have that much unchecked power. “He thought” that “we ought to avail ourselves of his wisdom in revising the laws, but not permit him to override the decided and cool opinions of the Legislature.”⁵ George Mason of Virginia declared that granting an absolute veto would be tantamount to creating an elective monarchy. Franklin echoed this concern about accretion of power. “The first man, put at the helm will be a good one.” It was widely assumed that George Washington would be the first President. However, continued Franklin, “No body knows what sort may come afterwards. The Executive will always be increasing here, as elsewhere, until it ends in a monarchy.”⁶ Delegates defeated the proposal to give the Executive an absolute veto by a vote of ten states to none.⁷

Gerry offered a motion to strike the judiciary from the veto power, and delegates approved the motion without dissent. The motion was amended to specify that two-thirds of each house would be needed to override the executive’s conditional veto. In that form, delegates approved it by a vote of eight states to two.⁸ On June 13, the Committee of the Whole reported a qualified veto, stating “that the national executive shall have the right to negative any legislative act; which shall not be afterwards passed unless by two third parts of each branch of the national Legislature.”⁹ Delegates approved the qualified veto without dissent. There were several more unsuccessful attempts to restore the judiciary back to the veto process.

The Committee of Detail’s report, delivered on August 6, contemplated a circumstance where the Executive would have insufficient time to return a veto message: “If any bill shall not be returned by the President within seven days after it shall have been presented to him, it shall be a law, unless the legislature by their adjournment, prevent its return; in which case it shall not be a law.”¹⁰ On August 15, by a vote of nine states to two, the Convention decided to change seven days to ten days with “[S]undays excepted.”¹¹ As a result, the President would have more time to consider vetoes and would not have to work on the Sabbath. On September 8, James Madison of Virginia moved to clarify that “the day on which the bill be presented” would not be “counted . . . as one of the ten” days.¹² Gouverneur Morris of Pennsylvania responded that the amendment was “unnecessary” because “the law knows no fractions of days.”¹³ In other words, the “day on which” the bill was presented would obviously not count toward the ten-day limit. Madison’s proposal was defeated by a vote of eight to three.

The adopted text gave the President ten full days to consider a measure, Sundays excepted. If he signed it, the legislation would become law. If he did not sign but failed to return a veto message, it would also become law. But if Congress’s adjournment prevented the President from returning a veto message in a timely manner, he could simply withhold his signature and the legislation would not become law. This practice would become known as a “pocket veto.”

Commentary

In Federalist No. 69, Alexander Hamilton noted that the British monarch possessed an absolute veto over acts of Parliament, but that power was dormant. Nevertheless, Hamilton said, “the disuse of that power for a considerable time past does not affect the reality of its existence.” Federalist and Anti-Federalist commentators discussed the qualified veto, but neither addressed the pocket veto.

Why Would the President Use a Pocket Veto?

A President has limited discretion in his exercise of the pocket veto. He cannot use it except in circumstances that render it impossible for him to return a qualified veto. A President is entitled to the full time the Constitution grants him to review legislation. Congress cannot, in effect, reduce that time by passing legislation within that period and shortly before adjourning. If Congress does so, it relinquishes its right to override a veto and leaves the President with the power of an absolute negative.

While the President may choose whether or not to approve legislation, it is entirely up to Congress whether he has the power to pocket veto the bill. If Congress wishes to avoid the possibility of a pocket veto, it must present a measure to the President with sufficient time for him to consider it and return a veto message.

When Can the President Use a Pocket Veto?

The President can use a pocket veto when the “adjournment” of Congress prevents the return of the bill. The Constitution makes several references to “adjournments.” When a house lacks a quorum, a “smaller number may adjourn from day to day.”¹⁴ (See Essay No. 25.) One house cannot “adjourn for more than three days” without the “Consent of the other” house.¹⁵ (See Essay No. 29.) And the President can “adjourn” Congress “in case of Disagreement between them, with respect to the Time of Adjournment.”¹⁶ (See Essay No. 113.) Relatedly, the President can make recess appointments “that may happen during the Recess of the Senate.”¹⁷ (See Essay No. 109.)

Controversies have arisen over when the legislature can be said to have “adjourned” so as to prevent a bill’s return, thus making a pocket veto possible. Without question, the veto can be exercised after the House and Senate adjourn a Congress sine die, meaning without return. For example, on December 23, 1982, the 97th Congress passed a bill and adjourned sine die the same day. President Reagan withheld his signature and the bill did not become law. On January 4, 1983, following expiration of the ten-day review period, the President published a Memorandum of Disapproval explaining his reasoning for not letting the bill become law.¹⁸

What about adjournments that happen within a two-year Congress and are not sine die? For example, what happens if Congress adjourns a few days for a holiday? These gaps can vary but are often brief. During such periods, it has been customary for Congress to appoint an agent (either the Secretary of the Senate or the Clerk of the House) to receive messages. In theory, at least, these agents can receive the President’s return of a bill. The central question is whether the circumstances of an adjournment, even with an agent present, prevent the return of a veto.

Judicial Precedent

The first Supreme Court case addressing this question was The Pocket Veto Case (1929).¹⁹ This case involved legislation to authorize proceedings before the U.S. Court of Claims. The measure was presented to President Calvin Coolidge on June 24, 1926. Excluding that day and Sunday, June 27, Coolidge should have had until Tuesday, July 6, to review the bill. However, the first session of the 69th Congress adjourned on July 3. Coolidge could have returned the veto at any time between June 24 and July 3, but he chose not to do so. Coolidge signed other legislation during this period but did not sign or veto the claims bill. He took no action at all, which triggered the question of whether he had exercised a pocket veto.

Congress did not reconvene for the second session until December 6, 1926, and litigation ensued over whether the bill Coolidge refused to sign had become law. The Court held that it had not become law because Congress, by its own adjournment, had prevented the return of a veto. Justice Edward T. Sanford, writing for the Court, stated that an adjournment “‘prevents’ the President from returning the bill to the House in which it originated within the time allowed.”²⁰ The Court considered designation of an agent to receive messages to be irrelevant. “No return can be made to the House,” the Court ruled, “when it is not in session as a collective body, and its members are dispersed . . . .”²¹ In addition, keeping legislation in abeyance for months until Congress reconvened would be inconsistent with the Framers’ intent. “It was plainly the object of the constitutional provision,” the Court said, “that there should be a timely return of the bill . . . [that] should enable Congress to proceed immediately with its reconsideration.”²²

Eleven years later, Wright v. United States (1938) considered whether an adjournment under dramatically different circumstances precluded the return of a veto. On April 24, 1936, a Senate-originated bill was presented to President Franklin D. Roosevelt. On May 4, during the President’s constitutional ten-day review period, the Senate commenced a recess that lasted until May 7. The House remained in session throughout that period. During the Senate’s recess, the President returned a veto message, which the Secretary of the Senate received. The Court held that the veto was effective, notwithstanding the fact that the Senate was in recess at the time.²³

The Court distinguished this case from The Pocket Veto Case in two material respects: first, constitutional reference to the adjournment of Congress means the adjournment of both chambers, not the interim recess of just one; second, the length of the recess was so short that the public policy concerns that animated the Court in The Pocket Veto Case were absent. In short, Congress was not “adjourned” when Roosevelt returned his veto. “When there is nothing but such a temporary recess,” wrote Chief Justice Charles Evans Hughes, “the organization of the House and its appropriate officers continue to function without interruption, the bill is properly safeguarded for a very limited time, and is promptly reported and may be reconsidered immediately after the short recess is over.”²⁴

In Kennedy v. Sampson (1974), the D.C. Circuit ruled on the president’s attempt to exercise a pocket veto during a six-day intra-session bicameral adjournment—that is, where both houses adjourned during a legislative session.²⁵ Legislation was presented to President Richard Nixon on December 14, 1970, and the President’s ten-day review period expired on December 25. Under the terms of an adjournment resolution, Congress had adjourned on December 22 for the Christmas holiday and reconvened on December 29. The President issued a Memorandum of Disapproval on December 24, purporting to have pocket vetoed the bill. Again, a veto message could have been overridden by a two-thirds vote, whereas a pocket veto was final. If “the Christmas adjournment . . . ‘prevented’ the return of [the bill] . . . by the President,” then “the President’s failure to approve the bill within ten days of its presentation to him constituted a pocket veto.” Alternatively, “[i]f the adjournment did not prevent the return of [the bill] . . . then the bill became law without the President’s signature.”²⁶ The court observed that the pocket veto represents a constitutional anomaly and “must be limited by the specific purpose it is intended to serve.”²⁷ That purpose, the court wrote, was “to enforce respect on the part of each of the law-making branches of the government for the legislative authority of the other.”²⁸

Appellants argued that Wright was distinguishable. The 1970 recess was bicameral instead of involving just the Senate and lasted for five days rather than three. Nevertheless, the court considered these differences inconsequential and found that “reliance upon the Pocket Veto Case would be misplaced.” The court explained that “[t]he modern practice of Congress with respect to intra-session adjournments creates neither of the hazards—long delay and public uncertainty—perceived in the Pocket Veto Case.”²⁹ The short, bicameral adjournment from 1970 was not sufficient to trigger the pocket veto power. The veto could still be returned during that period and be accepted by the agent. So long as each house maintains “appropriate arrangements . . . for receipt of presidential messages during the adjournment,” the President cannot issue a pocket veto.³⁰

The D.C. Circuit reached a similar outcome in Barnes v. Kline (1984). That case involved an attempted pocket veto during a nine-week adjournment between the first and second sessions of the 98th Congress.³¹ The Senate had authorized the Secretary of the Senate to receive messages in the interim. In rejecting the pocket veto, the court considered the circumstances surrounding the adjournment, such as the fact that in the second session, Congress could complete action on any measures or matters carried over from the first, including veto messages. In light of the Pocket Veto Cases and Wright, the court stated a “simple” rule of what happens during an adjournment when there is “a duly authorized officer of the originating house” who can receive a veto message: the President can only issue a pocket veto “if, under the circumstances of that type of adjournment, such a procedure would not occasion undue delay or uncertainty over the returned bill’s status.”³²

Open Questions

• During a short adjournment, if the House and Senate maintain agents to receive vetoes from the President, can the President ever use a pocket veto?
• How short must an adjournment be to fall within the rules set by the D.C. Circuit?
• Article II, Section 3 grants the President power to adjourn Congress if the two houses disagree between themselves as to the time of adjournment. Could the President adjourn Congress to prevent the return of a bill and thus be allowed to use a pocket veto that cannot be overridden by a two-thirds vote of each house?

1. 1 Farrand’s 21. ↩︎
2. Id. at 97–98. ↩︎
3. Id. at 98. ↩︎
4. Id. at 98–99. ↩︎
5. Id. at 99. ↩︎
6. Id. at 103. ↩︎
7. Id. ↩︎
8. Id. at 104. ↩︎
9. Id. at 230. ↩︎
10. 2 Farrand’s 181. ↩︎
11. Id. at 295. ↩︎
12. Id. at 608. ↩︎
13. Id. ↩︎
14. Art. I, § 5, cl. 1. ↩︎
15. Art. I, § 6, cl. 4. ↩︎
16. Art. II, § 3. ↩︎
17. Art. II, § 2, cl. 3. ↩︎
18. 128 Cong. Rec. 33440 (1982). ↩︎
19. 279 U.S. 655 (1929). ↩︎
20. Id. at 681. ↩︎
21. Id. at 683–84. ↩︎
22. 279 U.S. 655, 685. ↩︎
23. 302 U.S. 583 (1938). ↩︎
24. Id. at 595. ↩︎
25. 511 F2d. 430 (D.C. Cir. 1974). ↩︎
26. Id. at 437. ↩︎
27. Id. ↩︎
28. Id. at 438. ↩︎
29. Id. at 440–41. ↩︎
30. Id. at 442. ↩︎
31. 759 F2d. 21 (D.C. Cir. 1984). ↩︎
32. Id. at 35. ↩︎