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    "title": "Pocket Veto - General",
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    "ocrText": "The original documents are located in Box 1, folder \"Pocket Veto - General\" of the White\nHouse Records Office: Legislation Case Files at the Gerald R. Ford Presidential Library.\nCopyright Notice\nThe copyright law of the United States (Title 17, United States Code) governs the making of\nphotocopies or other reproductions of copyrighted material. Gerald R. Ford donated to the United\nStates of America his copyrights in all of his unpublished writings in National Archives collections.\nWorks prepared by U.S. Government employees as part of their official duties are in the public\ndomain. The copyrights to materials written by other individuals or organizations are presumed to\nremain with them. If you think any of the information displayed in the PDF is subject to a valid\ncopyright claim, please contact the Gerald R. Ford Presidential Library.\nExact duplicates within this folder were not digitized.\nDigitized\n1/30/76\nMr. Jones:\nLIBRARY i 938830\nFYI and retention.\nOriginal was sent to Mr. Schmults today for\nappropriate handling.\nKatie\nTom\nJ\nOffice of the Attorney General\nWashington, D. C. 20530\n/\nJUSTITIA\nJanuary 29, 1976\nThe President\nThe White House\nWashington, D. C.\nBERALD FORD LIBRARY\nDear Mr. President:\nThe Department of Justice is presently involved in a case\nwhich raises the question whether a President may lawfully use\na pocket veto during intra-session and inter-session adjournments\nof Congress. That case, Kennedy V. Jones, is now pending in the\nDistrict Court for the District of Columbia and concerns two bills\nwhich were pocket vetoed, the first by President Nixon during the\nsine die adjournment of the 1st Session of the 93rd Congress, which\nlasted 29 days, and the other by you during a 32-day intra-session\nrecess taken by both Houses of the 93rd Congress. The bill pocket\nvetoed by President Nixon would have amended the Urban Mass Trans-\nportation Act of 1964 to permit buses purchased pursuant to that\nAct to be used to provide charter bus services. The bill which\nyou pocket vetoed would have amended the Vocational Rehabilitation\nAct in connection with certain programs for the handicapped. Con-\ngress has since passed bills identical to the bills which were\npocket vetoed, and they have been signed into law.\nAfter extensive consideration of the issue, and based on an\nexamination of the judicial decisions construing the Pocket Veto\nClause of the Constitution and the policy behind it, I have con-\ncluded that it is extremely unlikely that we will prevail in our\ncontention that the bills involved in the Kennedy case were law-\nfully pocket vetoed. In addition, I am of the opinion that con-\ntinued use of the pocket veto during intra-session and inter-\nsession recesses or adjournments, where the appropriate House of\nCongress has specifically authorized an officer or agent to re-\nceive return vetoes during such periods, cannot be justified as\nconsistent with the provisions. of the Constitution. I therefore\nrecommend that the Department of Justice be authorized to accept\njudgment on the merits in the Kennedy case, and also that I be\nauthorized to make the following statement on your behalf:\nPresident Ford has determined that he will\nuse the return veto rather than the pocket veto\nduring intra-session and inter-session recesses\nand adjournments of the Congress, provided that\n- 2 -\nFORD\nthe House of Congress to which the bill and\nthe President's objections must be returned\nGERALD\nLIBRARY\naccording to the Constitution has specifically\nauthorized an officer or other agent* to receive\nreturn vetoes during such periods.\nBecause of the importance of this issue, I am attaching\nthe memorandum of the Solicitor General discussing in detail the\nlegal basis for my recommendation, the problems posed by continu-\nation of the Administration's present policy regarding the pocket\nveto, and the possible objections to my recommendation. The De-\npartment's position may be summarized as follows:\nThe Pocket Veto Clause of the Constitution, Art. I, Sec. 7,\nprovides that the pocket veto may only be used in cases in which\nthe Congress, \"by their Adjournment,' has prevented the use of\nthe return veto. Such cases would appear to exist only (1) dur-\ning a recess when no agent of the originating House is available\nto accept the return, or (2) during the period following the\nfinal adjournment of one Congress and preceding the convening\nof another. In all other cases, Congress would in fact be able\nto consider the President's objections and complete the legis-\nlative process by overriding or sustaining the veto. This con-\nstruction is in accord with the clear intent of the Framers that\nthe President exercise only a \"qualified negative\" (See the\nFederalist, No. 69) over proposed legislation, and not the \"abso-\nlute negative\" implicit in the pocket veto. It is also in accord\nwith the original and limited purpose of the Pocket Veto Clause --\nto enable the President to veto a bill in those extraordinary\ncases where Congress seeks to deprive him of the veto power by\nadjourning and thus preventing the return of an unsigned bill.\nAlthough the judicial decisions construing the Clause are\nless than satisfactory, they nevertheless appear to support the\nabove position. In the Pocket Veto Case, the Supreme Court ap-\nproved the use of a pocket veto during a five-month inter-session\nadjournment of Congress, when agents of the originating House were\navailable, although not specifically authorized, to accept a re-\nturn veto. But later in Wright V. United States, the Court, al-\nthough approving the use of a return veto during a shorter intra-\nsession recess of the originating House, established that a veto\nmay be returned to an accredited agent of the originating House\neven if it is not. in session. Recently, in Kennedy V. Sampson,\nthe Court of Appeals for the District of Columbia Circuit con-\nstrued the Supreme Court's decision in Wright to bar use of the\npocket veto during a short intra-session adjournment of Congress.\n- 3 -\nIt is our view that the Kennedy V. Sampson decision was correct,\nand that the Supreme Court would not presently approve the use\nof a pocket veto during a temporary adjournment of the Congress\nif appropriate arrangements had been made by the originating\nHouse for the receipt of presidential messages during the ad-\njournment.\nThere would not appear to be any advantage in continuing\nto maintain our present position regarding pocket vetoes in the\nKennedy V. Jones case. As I have mentioned, our chances of suc-\ncess are remote, and our position is not constitutionally sound.\nMoreover, continuation of the litigation may risk an adverse\ndecision on the question of congressional standing, an issue\nalso presented by the case. There is the danger that the Court's\ndesire to reach the merits of the case may constitute an irre-\nsistible temptation to decide the standing question in favor of\nSenator Kennedy. Since this later issue is of considerable im-\nportance, it would seem advisable to await a more favorable case\non the merits from the Executive's position before presenting the\ncongressional standing issue to the Court.\nI would, of course, be glad to discuss this matter with you.\nBecause of the status of the litigation, it is important that this\nmatter be decided as soon as practicable.\nSincerely,\nGERALD FORD LIBRARY\nEdward H. Levi\nAttorney General\nIT\nOF\nffice of the Solicitor General\nUMA\nWashington, D.C. 20530\nTHE\nJanuary 26, 1976\nMEMORANDUM TO THE ATTORNEY GENERAL\nFROM: SOLICITOR GENERAL\nRHB\nBERALD FORD LIBRARY\nRE: POCKET VETOES\nRecommendations: (1) We recommend that the\nAttorney General be authorized to make the following public\nannouncement on behalf of the President:\nPresident Ford has determined that he\nwill use the return veto rather than the\npocket veto during intra-session and inter-\nsession recesses and adjournments of the\nCongress, provided that the House of Congress\nto which the bill and the President's objections\nmust be returned according to the Constitution\nhas specifically authorized an officer or other\nagent to receive return vetoes during such\nperiods.\n(2) In accordance with the position expressed in\nthe foregoing announcement, we further recommend that the\nDepartment of Justice be authorized to accept judgment in\nKennedy V. Jones, Civil Action No. 74-194 (D. D.C.).\nThis recommendation is based upon our analysis of\nconstitutional policy as well as our estimate of the likely\noutcome of litigation. This memorandum first sets out a Summary\nof its analysis and then in more detail discusses (1) the text\nand apparent policy of the Constitution, (2) pertinent judicial\ndecisions, and (3) possible objections to our recommendations.\nSUMMARY\nThe constitutional text limits the use of the\npocket veto to circumstances in which Congress, \"by their\nAdjournment,\" has prevented use of the return veto. The\nconstitutional question is, therefore, when does Congress'\nadjournment prevent the President from returning a bill with\nhis objections. As a matter of pure logic, the answer to\nthat question would be (1) during a recess when no agent of\n-2-\nthe originating House is available to accept the return and\n(2) during the period following the final adjournment of one\nCongress and preceding the convening of another. In all\nFORD\nother circumstances, Congress could consider the President's\nobjections to the bill and complete the legislative process\nby sustaining or overriding the veto. Although the history\nLIBRARY\nof the Constitutional Convention sheds little further light\non this matter, it is apparent that the Framers intended the\nPresident to exercise only a qualified negative over legisla-\ntion and did not contemplate an expansive reading of the Pocket\nVeto Clause.\nThe judicial history of the Clause introduces some\nconfusion, however. In The Pocket Veto Case, the Supreme Court\nsanctioned the use of the pocket veto during a long inter-\nsession adjournment of Congress, when agents of the originating\nHouse were available, although not specifically authorized, to\naccept a return veto. But just nine years later, in Wright V.\nUnited States, the Court sanctioned the use of the return veto\nduring a shorter intra-session recess of the originating House,\nand in doing SO significantly, although in part implicitly,\nretracted much of its analysis in the earlier case. At a\nminimum, Wright stands for the proposition that a veto may\nbe returned to an accredited agent of the originating House\nwhile that House is not in session. In Kennedy V. Sampson,\nthe Court of Appeals for the District of Columbia Circuit\nextended the Supreme Court's reasoning in Wright to bar use\nof the pocket veto during a short intra-session adjournment\nof Congress. We believe that decision was correct. The\nConstitution requires the unsigned bill to be returned to the\noriginating House; if, as in Wright, the temporary absence of\nthe originating House does not prevent a return, we see no\nreason why the simultaneous absence of the nonoriginating\nHouse should change that result.\nThe case now pending in the District Court for the\nDistrict of Columbia, Kennedy V. Jones, involves the use of\npocket vetoes during (1) a somewhat longer (32-day) intra-\nsession adjournment of Congress and (2) an inter-session\nadjournment. We do not believe that the length of the\nintra-session adjournment can be constitutionally significant\nunder modern conditions, so long as an agent remains behind\nwho is authorized and available to receive a return veto. Nor\ndo we regard the difference between intra-session and inter-\nsession adjournments to require a difference in constitutional\npractice; in both situations the same Congress that passed the\nbill would, upon reconvening, be able to consider the President's\nobjections and determine whether they should be sustained or\noverridden; in those circumstances the return of the bill would\nnot appear to have been prevented within the meaning of the\nPocket Veto Clause.\n-3-\nI. Constitutional Text and Policy\nThe second paragraph of Article I, Section 7, of the\nConstitution provides in relevant part as follows:\nEvery Bill which shall have passed the\nHouse of Representatives and the Senate, shall,\nbefore it becomes a Law, be presented to the\nPresident of the United States; If he approves\nhe shall sign it, but if not he shall return it,\nwith his Objections to that House in which it\nFORD\nshall have originated, who shall enter the\nObjections at large on their Journal, and\nproceed to reconsider it. If after such\nGERALD\nLIBRARY\nReconsideration two thirds of that House shall\nagree to pass the Bill, it shall be sent, together\nwith the Objections, to the other House, by which\nit shall likewise be reconsidered, and if approved\nby two thirds of that House, it shall become a\nLaw * * * If any Bill shall not be returned by\nthe President within ten Days (Sundays excepted)\nafter it shall have been presented to him, the\nSame shall be a Law, in the like Manner as if\nhe had signed it, unless the Congress by their\nAdjournment prevent its Return, in which Case it\nshall not be a Law.\nWere we construing the Constitution afresh, neither\nenlightened nor encumbered by later judicial gloss, it would\nappear obvious that the return veto is required in all cases\nwhere Congress has not made its use impossible. The normal\ncourse of interaction between a Congress and a President who\ndisagree is prescribed as: legislation, return veto, attempt\nto override. The President thus has a qualified negative over\nlegislative acts. The pocket veto exists solely to prevent\nCongress from depriving the President of that qualified negative\nand SO leaving the legislative power completely unchecked.\nThe return veto requires Congress to muster a two-\nthirds majority to override. The pocket veto, by requiring\nCongress to reenact the legislation and then muster a two-\nthirds majority to override a subsequent return veto, thus\nrequires congressional consideration of the same measure not\ntwo but three times before the President's qualified negative\nmay be overcome. There can be no justification for placing that\nburden on the process except that Congress itself has made it\ninevitable by preventing the use of the return veto.\nThis said, it follows that the use of a pocket veto\nis improper whenever a return veto is possible. The pocket\nveto is not properly viewed, in the constitutional design, as\na presidential prerogative; it is, rather, a narrowly limited\n-4-\npresidential defense to the exercise by Congress of the\nlatter's own prerogative, \"by their Adjournment,\" to prevent\nthe return of an unsigned bill.\nThe constitutional question, then, is when is a return\nveto impossible, when does \"Congress by their Adjournment prevent\n[a bill's] Return.\" The Constitution does not answer explicitly,\nbut the plain indication that the return veto is heavily pre-\nferred and the practical construction that should be given the\nconcept of impossibility argues that the pocket veto is proper\nin only two circumstances: (1) during an intra-session or\ninter-session recess when no officer or designated agent of\nthe House in which the bill originated is available to accept\nthe return; or (2) when a Congress, either House of it, has\nfinally adjourned SO that the Congress that next meets will\nnot be the same legislative body.\nThe procedures required (or not required) by Article I,\nSection 7, support these conclusions. The President is required\nto return the bill within ten days (Sundays excepted), but there\nis no time limit, express or implied, placed upon the obligation\nof the House to which the bill is returned to \"enter the\nObjections at large on their Journal, and proceed to reconsider\"\nthe bill. This suggests that the length of an adjournment or\nrecess is irrelevant to the question of whether a return or a\npocket veto is appropriate. The relevant consideration is the\nability of the President to make the return. (It is also true\nthat only when a Congress has ended would it be impossible for\nFORD\na House to \"proceed to reconsider.\")\nIt has been contended that a return veto is\nGERALD\nLIBRARY\nimpossible unless the originating House is in session. The\nconstitutional text imposes no such requirement, however, and\nthere is no apparent reason why it should be implied. The bill\nis required to \"be presented to the President of the United\nStates,\" but it has never been doubted that his agent at the\nWhite House may accept the presentation and that the President's\nten days begins to run then, even if he does not return to the\nWhite House or even to the country during that period. There\nbeing no time limit upon the reconsideration of a vetoed bill\nby the originating House, there is even less reason to suppose\nthat the return veto cannot be made to its officer or agent\nfor action when that House reassembles.\nFinally, it should be noted that the constitutional\ntext does not prescribe a time limit for the period between\nthe passage of a bill and its presentation to the President.\nThus, were it supposed that the President had a power to\npocket veto a bill because the tenth day fell during a recess\nor adjournment, Congress could defeat the power by leaving\na bill with an officer instructed to present it to the\nPresident nine days before the end of any recess or adjournment.\n-5-\nThis fact reduces the argument for the power to pocket veto\nduring intra-session or inter-session recesses or adjournments\nto the level of constitutional triviality. The power would\narise only by accident, oversight, or when Congress preferred\na pocket veto to a return veto. These are not considerations\nthat rise to the level of constitutional argument.\nThe legislative history of the veto provisions,\nthough by no means conclusive, tends to confirm the argument\nfrom the text. There is abundant evidence from the proceedings\nof the Constitutional Convention, and from other sources, that\nthe Framers viewed any veto as a limited exception to their\nbasic legislative scheme according ultimate authority over the\npassage of federal legislation to the Congress. The absolute\nveto power that had been possessed by the King of England and\nby many of the colonial governors had been a major source of\nfriction between the Colonies and England during the pre-\nrevolutionary period, and efforts to confer a like power upon\nthe President were expressly rejected by the Framers. See\n1 M. Farrand, The Records of the Federal Convention of 1787\n(1937 ed.), at pp. 104, 106; 2 M. Farrand, at pp. 71, 200, 301,\n582, 585.\nAt the same time, however, the Framers were apparently\nconvinced that the power to enact laws for the governance of\nthe Nation was of too great a magnitude to allow it to be given\nto the legislative branch without any checking or balancing\nprovisions. They therefore conferred upon the President\nthe power to exercise a \"qualified negative\" (see the\nFederalist, No. 69) over proposed legislation, a negative\nrequiring the Congress to reconsider bills of which the President\ndisapproved but which could be overridden by a two-thirds\nmajority of both Houses. The history of the clause thus\nclearly counsels a narrow construction of the occasions for\nits exercise (see e.g., 1 J. Story, Commentaries on the\nConstitution of the United States $891 (5th ed., 1905). This\nview of the veto as a qualified negative does not support an\nexpansive view of the scope of presidential power to\nuse the pocket veto.\nII. Judicial Decisions\nGERALD FORD LIBRARY\nThe Supreme Court has addressed the scope of the\nPocket Veto Clause on only two occasions -- in The Pocket\nVeto Case, 279 U.S. 655 (1929), and Wright V. United States,\n302 U.S. 538 (1938). Since on neither occasion did the Court\nundertake an exhaustive examination of the circumstances in\nwhich use of the pocket veto would be constitutionally\nappropriate, many questions are left open to debate. Moreover,\nsome of the Court's rationale in The Pocket Veto Case appears\n-6-\ninconsistent with the text and history of the relevant\nconstitutional provisions and, indeed, with some of the\nCourt's rationale in the subsequent Wright decision.\nAlthough the holding in The Pocket Veto Case might\nwell be affirmed were the Court presented in the future with\na case involving the same facts, we do not believe -- given\nthe significantly different approach to the Pocket Veto\nFORD\nClause embraced in Wright -- that the Court's original\nrationale would survive intact. Indeed, portions of that\nrationale were either directly or indirectly rejected in\nLIBRARY\nWright. The Court's opinion in the latter case strongly\nsuggests, in our judgment, that the Supreme Court would not\npresently approve the use of a pocket veto during a temporary\nadjournment of the Congress so long as (1) appropriate\narrangements had been made by the originating House for the\nreceipt of presidential messages during the adjournment and\n(2) the length of the adjournment did not exceed the lengths\nof adjournments that have become typical in modern times. We\nthink it likely, moreover, that the Court might drop the\nsecond factor, i.e., that the length of the adjournment might\nbe held irrelevant and thus not a reason for allowing the\nuse of a pocket veto.\nA. The Pocket Veto Case. The Supreme Court held\nin The Pocket Veto Case that the inter-session adjournment\nof both Houses of the 69th Congress, which lasted for\napproximately five months, had prevented the President from\nreturning with his objections a bill that had been presented\nto him eight days before the adjournment. The Court thus\nrejected the contention made by the petitioners and the\namicus curiae that the President's failure to return the\nbill to the Congress, with his objections, within ten days\nof its having been presented to him had resulted in its\nhaving become a law without his signature.\nThe principal factors relied upon by the Court in\nsupport of this holding were that (1) the word \"House\"\nappearing in the second paragraph of Article I, Section VII,\nof the Constitution requires that the House in which the bill\noriginated be \"in session\" on the tenth day following the\nbill's presentation to the President, and that appointment\nby that House of an officer or other agent authorized to\nreceive presidential messages during the adjournment therefore\nwould neither prevent the President from exercising a pocket\nveto nor empower him to exercise a return veto after the\noriginating House had adjourned; (2) the return of a bill\ndisapproved by the President during an inter-session adjourn-\nment of the Congress would produce precisely the sort of\ndelay in the bill's final disposition, and uncertainty\nconcerning its status prior to Congress' having reconvened,\nthat the relevant constitutional provisions were designed to\n-7-\nprevent; and (3) the use of a pocket veto in the circumstances\npresented by the case was consistent with \"the practical\nconstruction that has been given to [the relevant provisions]\nby the President through a long course of years, in which the\nCongress has acquiesced\" (279 U.S. at 688-689)\nIf extended to its logical conclusion, the reasoning\nemployed by the Court in The Pocket Veto Case would have led\nultimately to the conclusion that whenever the originating\nFORD\nHouse is in recess at the end of the tenth day (excluding\nSundays) following presentation of a bill to the President,\nGERALD\nthe withholding by the President of his signature would\nLIBRARY\nprevent the bill from becoming a law. This conclusion would\nhave followed without regard to the brevity of the recess,\nthe availability of reliable and efficient means of returning\nthe bill to the originating House with the President's objections,\nor the willingness of the Congress as a whole promptly to recon-\nsider the bill following its return. Thus, had the originating\nHouse recessed simply for the afternoon of the tenth day\nfollowing the presentation of a particular bill, the logic of\nthe Court's reasoning in The Pocket Veto Case would have\nrequired it to sustain the President's pocket veto.\nThe only alternative would be to make the veto's\neffectiveness turn upon the length of the recess, but this\nwould require the Court arbitrarily to assign a limit to the\nlength of a recess during which a return veto could be required.\nThere is no warrant for such a procedure in the Constitution.\nB. Wright V. United States. The petitioner in\nWright attempted to take advantage of the logic of the Court's\nreasoning in The Pocket Veto Case, and contended that a\nparticular bill had become a law because (1) it had been\nreturn vetoed by the President during a three-day intra-session\nrecess taken by the Senate, the originating House, and (2) no\npocket veto could have been exercised during that period since\nCongress as a whole had not adjourned within the meaning of\nthe phrase \"unless the Congress by the Adjournment prevent\n[the bill's] return.\" In rejecting these contentions, the\nSupreme Court pointed out that if a messenger may \"present\"\na bill to the President while the President is temporarily\nabsent from the White House and if the same bill may be\nreturned by messenger to the originating House with a statement\nof the President's objections, the \"plainest practical considera-\ntions\" suggest that the return veto may be received by \"an\naccredited agent\" of the originating House (302 U.S. at 590)\nThe Court also noted that the dangers it had apprehended in\nThe Pocket Veto Case, stemming from delay in the final\ndisposition of a bill disapproved by the President and\nundertainty concerning its status following the return veto,\nare illusory when the originating House has taken \"a mere\ntemporary recess\" (id. at 595).\n-8-\nAlthough the Court in Wright did not expressly\ndisavow any part of the opinion in The Pocket Veto Case,\nit did feel compelled to repeat Chief Justice Marshall's\nadmonition \"that general expressions, in every opinion,\nare to be taken in connection with the case in which those\nexpressions are used * (id. at 593) As Justice\nStone, who would have held that the President's failure to\nsign the bill in question had prevented its becoming a law,\nnoted in his concurring opinion (which was joined by Justice\nBrandeis), however, the Court's opinion in Wright reflected\na significantly different approach to the Pocket Veto Clause\nthan had been employed in The Pocket Veto Case (see id. at\nFORD\n598-609). Specifically, (1) the Court held in Wright that\nthe President's return veto had been effective despite the\nfact that at the time of the return the originating House\nGERALD\nLIBRARY\nwas not \"in session\"; (2) it approved the return of a\nvetoed bill to \"an accredited agent\" of the originating\nHouse, even though that House had not specifically authorized\nan agent to receive return vetoes during the recess and despite\nthe Court's statement in The Pocket Veto Case that \"the\ndelivery of the bill [being returned] to [an] officer or\nagent, even if authorized by Congress itself, would not comply\nwith the constitutional mandate\" (279 U.S. at 684); and (3)\nit refused to permit its decision to be influenced by past\nexecutive or congressional practice, noting that \"[t]he question\nnow raised has not been the subject of judicial decisions and\nmust be resolved not by past uncertainties, assumptions or\narguments, but by application of controlling principles of\nconstitutional interpretation\" (302 U.S. at 597-598). Wright\nundercut much of the rationale of The Pocket Veto Case and\nleft the law in some confusion.\nC. Kennedy V. Sampson. A close reading of the\nSupreme Court's opinions in The Pocket Veto Case and in Wright\nreveals a rather dramatic shift of emphasis in the latter in\nfavor of essentially practical considerations. This shift\nof emphasis figured significantly in the recent decision of\nthe Court of Appeals for the District of Columbia Circuit in\nKennedy V. Sampson, 511 F. 2d 430 (1974). The court of appeals\nheld in Kennedy that the Christmas recess taken by both Houses\nof the 91st Congress had not prevented the President from\nexercising return vetoes during that period and that the President's\nfailure to sign or to return veto a particular bill during the\nrecess had resulted in the bill's having become a law without\nhis signature. The court relied heavily upon the practical\nconsiderations discussed in Wright in concluding that neither\nthe length of the Christmas recess (five days for the originating\nHouse, as opposed to the three days involved in Wright), nor\nthe fact that (unlike the situation in Wright) both Houses of\nthe Congress were in recess on the tenth day (excluding Sundays)\nfollowing presentation of the bill to the President, had\nempowered the President to exercise a pocket veto.\n-9-\nThe court of appeals began its analysis \"with the\npremise that the pocket veto power is an exception to the\ngeneral rule that Congress may override presidential dis-\napproval of proposed legislation\" (511 F. 2d at 437). The\nPocket Veto Clause was thus viewed as \"limited by the specific\npurpose[s] it [was] designed to serve\" (ibid.) ; the court\nreasoned that the clause was to be construed in a manner that\nfrustrated neither of the \"fundamental purposes\" that had\nbeen identified by the Supreme Court in Wright (id. at 438;\nquoting from Wright, supra, 302 U.S. at 596)\n(1) that the President shall have suitable\nopportunity to consider the bills presented\nto him, and (2) that the/Congress shall have\nsuitable opportunity to consider his objections\nto bills and on such consideration to pass them\nover his veto provided there are the requisite\nvotes. * * *\nThe only aspect of the rationale of the decision\nin The Pocket Veto Clause not modified by the decision in\nWright concerned the constitutional significance of delay in\na bill's final disposition and public uncertainty regarding\nits status prior to Congress' having reconvened. The court\nof appeals in Kennedy brushed this consideration aside, noting\nthat, [p]lainly, intrasession adjournments of Congress have\nvirtually never occasioned interruptions of the magnitude\nconsidered in the Pocket Veto Case\" and that \"[m]odern methods\nof communication make it possible for the return of a dis-\napproved bill to an appropriate officer of the originating\nHouse to be accomplished as a matter of public record\naccessible to every citizen\" (511 F. 2d at 411). The court\nconcluded that use of the return veto during an intra-session\nadjournment would create no intolerable public uncertainty\n(ibid.; footnotes omitted):\n[The] return of a bill during an intra-\nsession adjournment * * * generates no\nmore public uncertainty than does the\nFORD LIBRARY & CERALD\nreturn of a disapproved bill while\nCongress is in actual session. The only\npossible uncertainty about this situation\narises from the absence of a definitive ruling\nas to whether an intrasession adjournment\n\"prevents\" the return of a vetoed bill.\nHopefully, our present opinion eliminates\nthat ambiguity.\nThe court of appeals left little doubt in Kennedy\nthat it would hold that the President is not constitutionally\nempowered to pocket veto proposed legislation during an\nintra-session recess, whatever its length, so long as the\noriginating House had authorized an officer or other agent to\n-10-\nreceive presidential messages during its absence. Since we\ncan not perceive any basis in constitutional text or policy\nfor distinguishing between an intra-session recess and an\ninter-session adjournment, we believe that that court would\nextend its holding to inter-session adjournments as well.\nAlthough we were somewhat troubled by the breadth\nof the court of appeals' opinion in Kennedy, for a variety\nof reasons we determined not to petition for a writ of\ncertiorari in that case. First, the result in the case seemed\nto us to be unquestionably correct. Consequently, were we to\nhave sought further review we would have been in the untenable\nposition of agreeing with the actual holding in the case and\nwith much of the court's reasoning and of asking the Supreme\nFORD\nCourt merely to disapprove certain dicta. Second, it was\nour understanding that, by the time the decision in the\nKennedy case was issued, executive policy with respect to\nGERALD\nLIBRARY\npocket and return vetoes either accorded with that decision\nor would be modified accordingly. And, finally, we regarded\nthe case to be a particularly inappropriate vehicle for\npresenting to the Supreme Court the question of congressional\nstanding to sue -- a question the Court obviously would have\nhad to reach prior to dealing with the merits of the case.\nD. Pending Litigation. Although pocket vetoes have\nbeen used many times during intra-session and inter-session\nadjournments (see The Pocket Veto Case, 279 U.S. at 690-691;\nKennedy V. Sampson, 511 F. 2d at 442-445), there have been\nvery few cases challenging the constitutionality of the\npractice. A partial explanation for this is that development\nof the doctrine of congressional standing to sue is a relatively\nrecent phenomenon. We may expect litigation with congressmen\nover every future use of the pocket veto during an adjournment\nthat is not final. Such cases are particularly poor vehicles\nfor litigating the question of congressional standing to sue.\nThe Supreme Court might be greatly tempted to hold that there\nis standing in order to reach the veto issue and settle it.\nThe dispute concerning congressional standing will, in the\nlong run, pose a much more serious threat both to traditional\nexecutive prerogative and to constitutional modes of goverance\nthan does acceptance of a narrowed scope for the pocket veto\npower --- particularly since Congress can completely frustrate\nthe use of the pocket veto during other than final adjournments\nby the simple expedient of delaying the presentation of bills\nuntil their return dates coincide with times when the\noriginating House, or both Houses, are scheduled to be in\nsession.\nWe therefore believe that judgment on the merits\nshould be accepted in Kennedy V. Jones, Civil Action No.\n74-194 (D. D.C.) -- a suit filed by Senator Kennedy and\ninvolving two pocket vetoed bills. The first bill\n(H.R. 10511) would have amended the Urban Mass Transportation\n-11-\nAct of 1964 to permit buses purchased pursuant to that Act\nto be used to provide charter bus services. The bill was\npocket vetoed by President Nixon during the sine die\nadjournment of the 1st Session of the 93d Congress, which\nlasted 29 days. The second bill (H.R. 14225) would have\namended the Vocational Rehabilitation Act by extending the\nauthorization of appropriations for certain programs for the\nhandicapped for one year, making certain changes in federal\nprograms for blind persons and providing for the convening\nof a White House Conference on Handicapped Individuals.\nPresident Ford pocket vetoed the latter bill during a 32-day\nintra-session recess taken by both Houses of the 93d Congress.\nThe Congress subsequently passed bills identical to those that\nhad been pocket vetoed, and they were ultimately signed into\nlaw, so that nothing of any significance other than legal issues\nis now at stake.\nWe therefore argued in Kennedy V. Jones that that\ncase is moot. That argument has failed. We must now accept\njudgment and make the recommended public announcement on\nbehalf of the President or continue to litigate the case.\nIf we litigate, we are certain to lose both the standing issue\nand the pocket veto issue in the court of appeals. Nothing\nwould be gained by litigating further unless we went to the\nSupreme Court. Either we or Senator Kennedy may attempt to\nbypass the court of appeals by petitioning the Court for\ncertiorari before judgment. The case could be argued as early\nas next October. In any event, we believe we would run a very\nsubstantial risk of losing the congressional standing issue\nin the Supreme Court in this context and, if we did, would\nalmost certainly lose the pocket veto issue. Further litigation\nrisks much for very little prospect of gain.\nFORD\n's\nGERALD\nLIBRARY\n-12-\nFORD\nIII. Possible Objections to Restricting\nUse of the Pocket Veto to Final\nAdjournments of the Congress\nSeveral possible objections have been raised to the\nrecommendation that the President use pocket vetoes only upon\nthe final adjournment of a Congress if, during all other\nrecesses and adjournments, agents have been designated to\nreceive return vetoes. The more important of these objections\nare analyzed here.\nA. The decided cases support a distinction between\nintra-session recesses and inter-session adjournments, making\nit inadvisable for the President to, surrender the power to\npocket veto proposed legislation during inter-session adjourn-\nments.\nWe cannot perceive any basis in constitutional text\nor policy for distinguishing between an intra-session recess and\nan inter-session adjournment. The Court suggested in Wright that\nthe determining factor so far as the permissibility of a pocket\nveto is concerned is the length of time the originating House is\nscheduled to be absent from its chambers, the consequent delay in\nthe bill's final disposition, and public uncertainty concerning\nthe bill's status prior to Congress' having reconvened. In recent\nyears, however, inter-session adjournments have not consistently\nor significantly exceeded intra-session recesses in length. In-\ndeed, the intra-session recess involved in Kennedy V. Jones was\nslightly longer than the inter-session adjournment in that case,\nwhich would make it particularly futile to urge the distinction\nsuggested.\nB. Although the President might not be \"prevented\"\nfrom returning a bill if only one House has temporarily recessed\nor adjourned, the temporary absence of both Houses might be held\nto prevent the bill's return.\nThe Supreme Court did state in Wright that, since the\nHouse of Representatives (the non-originating House in that case)\nhad remained in session during the three-day recess taken by the\nSenate, the \"Congress\" had not adjourned and thus prevented \"by\ntheir Adjournment\" the return of the bill in question within the\nperiod prescribed for that purpose. But that observation was\nnot accorded controlling weight by the Court since it simulta-\nneously reserved the question whether a one-House recess longer\nin duration than the recess involved in that case would \"prevent\"\nthe return of a vetoed bill. As Justice Stone pointed out in his\nconcurring opinion in Wright, moreover, \"it was the adjournment\nof the originating house with which the framers were concerned\"\n(302 U.S. at 606). See also Kennedy V. Sampson, supra, 511 F. 2d\nat 440.\n-13-\nThe distinction between a recess by one House and a\nrecess by both is, in any event, of no particular significance if\nthe important factors are, as those who make this point assume,\nthe length of the recess and the unavailability of an originating\nHouse in session to receive a return veto.\nC. Since the Supreme Court's holding in Wright was\nlimited to disapproving a pocket veto exercised during a three-\nday recess, and the Court did not in that case disavow the\ndiscussion in The Pocket Veto Case concerning the constitutional\nsignificance of the delay and uncertainty inhering in longer\nrecesses and adjournments, the President should continue to\npocket veto bills of which he disapproves during congressional\nabsences in excess of three days.\nFORD i LIBRARY GENALD\nWe believe that this objection was answered persuasively\nby the court of appeals in Kennedy V. Sampson. The recesses and\nadjournments taken by the Congress during recent years have not\napproached in length those taken at the time The Pocket Veto Case\nwas decided. Moreover, the Congress may delay the presentation\nof an enrolled bill to the President until near the end of even\na very long recess or adjournment -- and then need not reconsider\nthe disapproved bill within any given period of time or, indeed,\nat all.\nFinally, until the Congress has reconsidered the dis-\napproved bill, and either sustained or overridden the President's\nveto, there will be public uncertainty concerning whether the\nbill will become a law. That uncertainty is no greater than in\ncases where Congress dawdles over the original passage of a bill\nor over an attempt to override a return veto. Indeed, it is hard\nto see what public uncertainty has to do with the issue at all.\nIn the case of a return veto during a recess or adjournment, the\npublic knows the bill has not become law and will not unless and\nuntil Congress overrides. Why that is of any concern, much less\na factor of constitutional dimensions, remains a mystery. The\nSupreme Court mentioned it once but the argument about uncertainty\nwill not withstand analysis. We therefore do not think the fact\nthat an accredited agent of the originating House may have to\nhold a returned bill for a short period of time prior to the re-\nconvening of the originating House has any significance under the\nPocket Veto Clause.\nD. Requiring the originating House specifically to\nauthorize an officer or other agent to receive return vetoes\nduring the temporary absence of that House from its chambers\nhas no predicate in the text of the relevant constitutional\nprovisions and does not distinguish earlier cases or practice.\nThe principal difficulty that must be faced in any\nattempt presently to delimit the scope of the Pocket Veto Clause\nis that the Supreme Court has complicated the inquiry with opinions\nFORD\n-14-\nGERALD\nthat are not completely reconcilable and, as a consequence, past\nexecutive practice with respect to return and pocket vetoes has\nnot been entirely consistent. It is true that the Secretary of\nthe Senate, to whom the Court held in Wright an effective return\nof the President's veto had been made during the Senate's three-\nday absence, had not been specifically authorized by the Senate\nto receive such vetoes. That fact obviously poses a problem in\nusing the specific designation of an agent as a limiting principle\nfor purposes of the Pocket Veto Clause. We also agree that, were\ndetermination of the scope of the Pocket Veto Clause a matter of\nfirst impression, the designation of an agent would be unnecessary\nif officers of the originating House were available.\nWe nevertheless believe that the chances are quite good\nthat the Supreme Court would endorse the specific designation of\nan officer or other agent to receive return vetoes as a means of\ndistinguishing past executive practice (and avoiding the resur-\nrection of bills long since regarded as having been effectively\npocket vetoed) and of providing guidance for the future. Clearly,\na case-by-case determination of the effectiveness of pocket and\nreturn vetoes -- depending upon the length of the particular\nrecess or adjournment --- would be entirely unsatisfactory. An\napproach to the Pocket Veto Clause requiring the Court to endorse\na recess or adjournment of a specific length as permitting the\nPresident to return veto a bill would be both inconsistent with\nthe Court's normal practice and exceedingly difficult to ration-\nalize. Specific designation of an agent by the originating House\nat least evidences an effort by that House to keep open lines of\ncommunication with the President during temporary absences, and\nprovides formal assurance that the Congress as a whole will receive\nformal notification upon its return of decisions made by the\nPresident with respect to specific legislation.\nE. A determination by the President that he will return\nrather than pocket veto bills presented to him during temporary\nrecesses and adjournments may result in the resurrection of bills\npocket vetoed in the past.\nSince we believe that the Supreme Court would refuse to\nrecognize the effectiveness of a pocket veto exercised during a\ntemporary recess or adjournment no longer in duration than those\nthat have become common in recent years, so long as an officer or\nagent had been authorized by the originating House to receive\npresidential messages during that period, the danger that bills\npocket vetoed in the past may suddenly spring to life confronts\nus regardless of present or future executive policy with respect\nto pocket vetoes. An attempt should be made promptly to identify\nbills that may be affected by various alternative theories of the\nPocket Veto Clause, although we believe that the Supreme Court\n-15-\nwould view sympathetically an argument that any future decision\nby it concerning the scope of the Pocket Veto Clause should be\napplied prospectively only.\nF. A construction of the Pocket Veto Clause prohibit-\ning the President from pocket vetoing bills during a temporary\nrecess or adjournment creates a danger that the circumstances\nattending the President's decision to return veto a particular\nbill will have changed dramatically by the time the Congress\nhas reconvened.\nSince the Constitution does not place any limits upon\nthe Congress' power to delay the presentation of an enrolled\nbill to the President, the danger that circumstances may change\nbetween the time of the President's consideration of a bill and\nCongress' reconsideration of that bill is unavoidable.\nG. It is unrealistic to believe that the President\ncan adopt the position that pocket vetoes are impermissible\nexcept following a final adjournment of the Congress without\ndestroying the ability of his successors to assert the contrary.\nWe agree that a practice of using return vetoes instead\nof pocket vetoes will make it more difficult for a later President\nto use pocket vetoes. If the use of return vetoes is the sounder\nconstitutional practice, however, that is not an objection but a\nproper result. The significance of this consideration is, in any\ncase, substantially undermined by the very probable outcome of a\nSupreme Court test of the scope of the Pocket Veto Clause.\nFORD LIBRARY & GERALD\nNotice: This opinion is subject to formal revision before publication\nin the Federal Reporter or U.S. App. D.C. Reports. Users are requested\nto notify the Clerk of any formal errors in order that corrections may be\nmade before the bound volumes go to press.\nUnited States Court of Appeals\nFOR THE DISTRICT OF COLUMBIA CIRCUIT\nNo. 73-2121\nEDWARD M. KENNEDY\nV.\nARTHUR F. SAMPSON, Acting Administrator,\nGeneral Services Administration, et al., APPELLANTS\nNo. 73-2122\nEDWARD M. KENNEDY\nGERALD FORD LIBRARY\nV.\nARTHUR F. SAMPSON, Acting Administrator,\nGeneral Services Administration, et al., APPELLANTS\nAppeals from the United States District Court\nfor the District of Columbia\nDecided August 14, 1974\n2\nJames C. Hair, Jr., Attorney, Department of Justice,\nwith whom Irving Jaffe, Acting Assistant Attorney Gen-\neral, Earl J. Silbert, United States Attorney and Robert\nE. Kopp, Attorney, Department of Justice, were on the\nbrief for appellants. Morton Hollander, Attorney, De-\npartment of Justice, also entered an appearance for ap-\nR.FORD\npellants.\nEdward M. Kennedy, appellee, pro se.\nGERALD\nUBRAR\nBefore: BAZELON, Chief Judge, FAHY, Senior Circuit\nJudge and TAMM, Circuit Judge.\nTAMM, Circuit Judge, delivered the opinion for the\ncourt in which BAZELON, Chief Judge, and FAHY, Senior\nCircuit Judge joined.\nFAHY, Senior Circuit Judge, filed a concurring opinion\nin which BAZELON, Chief Judge, joined.\nTAMM, Circuit Judge: Appellee, a United States Sena-\ntor, filed suit against the Administrator of the General\nServices Administration and the Chief of White House\nRecords seeking a declaration that the Family Practice\nof Medicine Act (hereinafter, S. 3418) 1 became law on\nDecember 25, 1970, and an order requiring the appel-\nlants to publish the Act as a validly enacted law.2 S.\n3418 was passed by overwhelming majorities in both the\nHouse and Senate in the Fall of 1970.³ Appellee was\n1 S. 3418, 91st Cong., 2d Sess. (1970).\n2 Appellee contends that appellant Jones is required to de-\nliver and appellant Sampson to publish in slip form and in\nStatutes at Large all newly enacted laws of the United States.\nKennedy V. Sampson, C.A. No. 1583-72, Complaint, 11 4, 5\n(D.D.C., filed Aug. 9, 1972), citing 1 U.S.C. §§ 106a, 112, 113\n(1970). This question was not decided by the district court.\n3 Passed in the Senate September 14, 1970 by a vote of 64-1,\n116 CONG. REC. 31508 (1970) ; in the House of Representa-\ntives on December 1, 1970 by a vote of 346-2, id. at 39379. The\n3\namong those Senators who voted in favor of the bill\nwhich was presented to the President on December 14,\n1970.4 On December 22 both Houses of Congress ad-\njourned for the Christmas holidays, the Senate until De-\ncember 28 and the House until December 29.5 Before\nadjourning, the Senate authorized the Secretary of the\nSenate to receive messages from the President during\nthe adjournment. On December 24, the President issued\na memorandum of disapproval announcing that he would\nwithhold his signature from S. 3418. The President took\nno further action with respect to the bill. Appellants\nmaintain that this series of events resulted in a \"pocket\nveto\" under article I, section 7 of the United States\nConstitution. Appellee, relying upon the same provision,\ncontends that the bill became law without the President's\nsignature at the expiration of the ten-day period fol-\nlowing its presentation to him.\nUpon cross motions for summary judgment, the district\ncourt granted judgment in favor of appellee. The order\nof the district court declares that S. 3418 became a law\nof the United States on December 25, 1970 and that \"de-\nfendants are under a ministerial, nondiscretionary duty\nto publish said law\n8 Although the district court\nhas retained jurisdiction for the purpose of adjudicating\nSenate House Conference Report, H.R. REP. No. 91-1668,\n91st Cong., 2d Sess., was agreed to by the House on December\n8, 116 CONG. REC. 40289-92 (1970), and by the Senate on\nDecember 10, id. at 40867.\n4 116 CONG. REC. 41289 (1970).\n5 S. Con. Res. 87, 91st Cong., 2d Sess., id. at 43250.\n6 116 CONG. REC. 43221 (1970).\n7 6 PRESIDENTIAL DOCUMENTS 1726-27 (December 28, 1970).\n8 Kennedy V. Sampson, 364 F. Supp. 1075, 1087 (D.D.C.\n1973).\n4\nappellee's request for injunctive relief in the nature of a\nmandamus, further action has been postponed pending\nthis appeal.9\nTwo questions are presented for review: (1) does ap-\npellee have standing to maintain this suit; and (2) did\nFORD\nS. 3418 become a law? We conclude that both questions\nmust be answered in the affirmative.\nGERALD\nLIBRARY\nI.\nThe requirement of standing derives from the limita-\ntion upon judicial power expressed in the \"case\" or \"con-\ntroversy\" formula of article III of the Constitution.\nThe concept was recently treated by the Supreme Court\nin Sierra Club v. Morton, 405 U.S. 727, 731-32 (1972) :\nWhether a party has a sufficient stake in an other-\nwise justiciable controversy to obtain judicial reso-\nlution of that controversy is what has traditionally\nbeen referred to as the question of standing to sue.\nWhere the party does not rely on any specific stat-\nute authorizing invocation of the judicial process,\nthe question of standing depends upon whether the\nparty has alleged such a \"personal stake in the out-\ncome of the controversy,\" Baker v. Carr, 369 U.S.\n186, 204, as to ensure that \"the dispute sought to\nbe adjudicated will be presented in an adversary\ncontext and in a form historically viewed as capa-\nble of judicial resolution.\" Flast v. Cohen, 392 U.S.\n83, 101.\nAlthough he has not been authorized to prosecute this\nsuit on behalf of the Senate or the Congress, appellee\noffers several alternative theories of standing.10 We\n9 Pursuant to Rule 54 (b), FED. R. CIV. P. the district court\nfound that there was no just reason for delay and directed\nentry of a final order granting appellee's request for declara-\ntory relief. Kennedy V. Sampson, supra note 2, Order dated\nSeptember 24, 1973.\n10 Appellee claims standing in his capacity as a citizen, as a\ntaxpayer, and as a member of the United States Senate. The\n5\nagree with the district court that appellee has standing\nto maintain this suit in his capacity as an individual\nUnited States Senator who voted in favor of S. 3418.\nThis conclusion follows from any of the traditional meth-\nods of evaluating the standing of a party to sue.\nOne approach to the question is to inquire whether a\n\"logical nexus\" exists between the status asserted by a\nlitigant and the claim sought to be adjudicated. Flast v.\nCohen, 392 U.S. 83, 102 (1968). Examination of ap-\npellee's complaint reveals that such a nexus is present\nin this case. While the complaint is literally addressed\nLIBRARY\nto the ministerial duties of certain officials, the legal\nissue turns on the validity of executive action which\npurports to have disapproved an Act of Congress by\nmeans of a constitutional procedure which does not permit\nCongress to override the disapproval. If appellants' ar-\nguments are accepted, then appellee's vote in favor of the\nbill in question has been nullified and appellee has no\nright to demand or participate in a vote to override the\nPresident's veto. Conversely, if appellee's interpretation\nof the veto clause is correct, then the bill became law\nwithout the President's signature. In short, disposition\nof the substantive issue will determine the effectiveness\nvel non of appellee's actions as a legislator with respect\nto the legislation in question. This demonstrates a re-\nlationship between appleee and his claim which is not\nonly \"logical\" but real, a relationship which assures\nthat the issues have been litigated with the vigor and\nthoroughness necessary to assist the court in rendering\nan informed judgment.\nA somewhat different analysis of standing has been\nemployed with respect to parties who challenge adminis-\ntrative action. In Association of Data Processing Service\ndistrict court agreed with the latter contention and did not\nreach the alternative arguments. Kennedy V. Sampson, supra\nnote 8 at 1077-79.\n6\nOrganizations, Inc. v. Camp, 397 U.S. 150 (1970) the\nSupreme Court framed the standing issue as follows: (1)\ndoes the plaintiff allege that the challenged action has\ncaused him \"injury in fact, economic or otherwise;\" (2)\nis the interest sought to be protected \"arguably within the\nzone of interests to be protected or regulated by the\nstatute or constitutional guarantee in question.\" Id. at\n152-53. Appellee's pleading satisfies both inquiries. The\ncomplaint alleges an injury to him in his capacity as a\nUnited States Senator:\nThe acts of the defendants have injured the plain-\ntiff as a United States Senator by denying him the\neffectiveness of his vote as a member of the United\nGE\nStates Senate. The plaintiff\nwas among 64\nSenators voting in favor of S. 3418\n11\nAppellee's asserted interest plainly falls among those\ncontemplated by the constitutional provision upon which\nhe relies. That provision, article I, section 7, is one of\nseveral in the Constitution which implement the \"separa-\ntion of powers\" doctrine. Taken together, these provisions\ndefine the prerogatives of each governmental branch in a\nmanner which prevents overreaching by any one of them.\nThe provision under discussion allocates to the executive\nand legislative branches their respective roles in the law-\nmaking process. When either branch perceives an intru-\nsion upon its legislative power by the other, this clause\nis appropriately invoked. The gist of appellee's complaint\nis that such an intrusion has occurred as a result of the\nPresident's misinterpretation of this clause and that a\nconsequence of this intrusion is the nullification of appel-\nlee's vote in favor of the bill in question; hence, the com-\nplaint alleges injury to an interest of appellee as a mem-\nber of the legislative branch of the government, and inter-\nest among those protected by article I, section 7. Appel-\nlants insist that only the interests of the Congress or one\n11 Kennedy V. Sampson, supra note 2, Complaint, 11 15.\n7\nof its Houses as a body are protected by this provision.\nOur conclusion with respect to appellee's standing finds\nsupport in Coleman v. Miller, 307 U.S. 433 (1939), which\nheld, inter alia, that twenty state senators who had voted\nagainst ratification of a constitutional amendment had\nstanding to challenge the legality of a tie-breaking vote in\nfavor of ratification which was cast by the Lieutenant\nGovernor, the presiding officer of the Senate of Kansas.\nThe Court concluded that the interest of the legislators in\nprotecting the effectiveness of their votes conferred stand-\ning to maintain the suit:\nHere, the plaintiffs include twenty senators, whose\nvotes against ratification have been overridden and\nvirtually held for naught although if they are right\nin their contentions their votes would have been\nsufficient to defeat ratification. We think that these\nsenators have a plain, direct and adequate interest\nin maintaining the effectiveness of their votes.\nId. at 438. Appellants correctly point out that the votes\nof the twenty plaintiffs in Coleman had peculiar legal\nsignificance as a bloc, i.e.: these votes were sufficient to\nprevent ratification absent the challenged vote of the\nLieutenant Governor. Appellants read Coleman as holding\nthat the plaintiff legislators had standing only as a group\nfor the purpose of protecting the collective effectiveness\nof their votes. In a like vein, appellants contend that\nappellee's vote in favor of S. 3418 has no legal signifi-\ncance independent of the other votes in favor of the bill.\nAny injury to him occasioned by the President's action, it\nis argued, is \"derivative\" in nature.¹² In appellants' view,\nonly the Senate or the Congress has sustained the \"direct\"\ninjury necessary to confer standing (assuming that the\nveto of S. 3418 was invalid) 13\n12 Appellants' Br. at 24-27; Appellants' Reply Br. at 2-3.\n13 Appellants' Reply Br. at 2. Appellants suggest that the\nSenate might have standing because it was \"improperly de-\n8\nThe Coleman opinion neither confirms nor rejects ap-\npellants' interpretation. It does not express reliance upon\nthe fact that all nay-voters had joined as plaintiffs in the\naction, nor does it contain any hint as to whether one of\nthe plaintiffs might have maintained the suit alone. Al-\nthough references to the parties and their votes are, quite\nnaturally, in the plural form, the opinion does not disclose\nwhether the Court was considering them collectively or\nseverally. In light of the purpose of the standing require-\nment, however, we think the better reasoned view of both\nColeman and the present case is that an individual legis-\nlator has standing to protect the effectiveness of his vote\nFORD\nwith or without the concurrence of other members of the\nmajority.\nThe policy underlying the doctrine of standing is identi-\nGERALD\nIBRARY\nfied in the following passage from Baker v. Carr, 369\nU.S. 186, 204 (1962) :\nHave the appellants alleged such a personal stake\nin the outcome of the controversy as to assure that\nconcrete adverseness which sharpens the presenta-\ntion of issues upon which the court SO largely de-\npends for the illumination of difficult constitutional\nquestions? This is the gist of the question of stand-\ning.\nAnother discussion describes the purpose of the standing\ndoctrine as follows:\nprived of the initial opportunity to override the veto\nId. Appellee makes a similar argument in favor of his own\nindividual standing. Appellee's Br. at 13. Both parties mis-\nconceive the issue. The only possible effects of the President's\naction with respect to S. 3418 are that the bill became law, in\nwhich case there is no need to override, or it did not become\nlaw because Congress prevented its return, in which case\nthere is no right to override. See Hearings on the Constitu-\ntionality of the President's \"Pocket Veto\" Power Before the\nSubcomm. on Separation of Powers of the Senate Comm. on\nthe Judiciary, 92nd Cong., 1st Sess. 4-5 (1971).\n9\nUnder such circumstances, we feel confident that\nthe questions will be framed with the necessary\nspecificity, that the issues will be contested with the\nnecessary adverseness and that the litigation will be\npursued with the necessary vigor to assure that the\nconstitutional challenge will be made in a form tra-\nditionally thought to be capable of judicial resolu-\ntion.\nFlast v. Cohen, supra at 106. Appellee's interest in the\npresent controversy provides the same assurance that he\nis an appropriate advocate.\nAppellants' argument to the contrary is based upon a\ndistinction which is more formal than substantive. While\nFORD\nconceding that Congress as a whole (or even one of its\nHouses) has standing to challenge the President's pur-\nGERALD\nIBRAR\nported use of the pocket veto,¹⁴ appellants insist that an\nindividual member of Congress does not, even if he voted\nfor the bill in controversy. The interest of the Congress in\npreserving its role in the law-making process is said to be\n\"direct\" while that of appellee is labelled \"indirect or de-\nrivative.\"\n15 Appellants base this distinction upon the self-\nevident proposition that appellee is not the Congress:\nAs an individual senator appellee can at best be\nsaid to have sustained only indirect injury as the\nresult of the pocket veto, for his vote for S. 3418 is\nin no sense the legal or political equivalent of the\npassage of the bill by the Congress.\n16\nThe italicized observation is undoubtedly correct but it\ndoes not help appellants' argument. The prerequisite to\nstanding is that a party be \"among the injured,\" in the\nwords of Sierra Club, not that he be the most grieviously\nor most directly injured. We think that appellee is\n\"among the injured\" in this case.\n14 Appellants' Reply Br. at 2.\n15 Id. at 2-3.\n16 Id. (emphasis added).\n10\nThe subject matter at stake in this litigation is legisla-\ntive power. The court is presented with conflicting views\nof the pocket veto power, one which is expansive, and\nanother which is restrictive. Over the long term, appel-\nlants' broad view of the pocket veto power threatens a\ndiminution of congressional influence in the legislative\nprocess.1 It seems to this court axiomatic that, to the\nextent that Congress' role in the government is thus\ndiminished, SO too must be the individual roles of each of\nits members. Put another way, the influence of any one\n17 Appellants dispute the contention that a broad construc-\ntion of the pocket veto clause can affect the legislative balance\nof power. Two defenses are suggested whereby Congress can\nmaintain legislative supremacy: (1) if disapproval is antici-\npated, Congress may delay the presentation of a bill until\nGERALD\nLIBRARY\nafter the recess in order to preserve its right to override; (2)\nCongress may reenact a pocket-vetoed bill and present it to\nthe President a second time. Appellants' Br. at 44-45. While\nboth of these procedures might be effective, they would not\nchange the fact that the pocket veto power will have been used\nas an obstacle-however temporary-to the implementation\nof the will of Congress. Moreover, such delays may for prac-\ntical purposes become permanent. As appellee points out in\nhis brief at 54:\nIt is no answer to say that if Congress wishes, it can\nsimply pass a pocket-vetoed bill again and present it to\nthe President at a time when the pocket veto cannot be\nused. At best, the legislative route is arduous and time-\nconsuming, involving numerous subcommittee, full com-\nmittee, and other proceedings in both the Senate and\nthe House. At worst, if delay has dimmed the constella-\ntion of public and private interests that facilitated the\noriginal passage of the bill, if the unique alchemy that\nenabled the legislative process to function successfully\nthe previous time around has disappeared, the result may\nbe that the bill cannot be passed at all.\nIt is significant, too, that the utilization of a broadly con-\nstrued pocket veto power is likely to grow with the increasing\nfrequency of brief, intrasession adjournments. See infra note\n40 and accompanying text.\n11\nlegislator upon the political process is in great measure\ndependent upon the stature of the governmental branch of\nwhich he is a member.\nIn a sense, therefore, the contention that appellee's\ninterest in the pocket veto controversy is \"derivative\" is\ncorrect. It is derivative, but it is nonetheless substantial.\nWhen asserted in the context of a particular dispute about\nspecific legislation, such an interest may be sufficient to\nconfer standing. Appellee's stake in this litigation is a\nquantum of his official influence upon the legislative proc-\ness. To be sure, that influence can never be \"the legal or\nGERALD LIBRARY\npolitical equivalent of the passage\" of a bill, for only\nCongress as a body has that authority. Nevertheless, the\noffice of United States Senator does confer a participation\nin the power of the Congress which is exercised by a Sen-\nator when he votes for or against proposed legislation.\nIn the present case, appellee has alleged that conduct by\nofficials of the executive branch amounted to an illegal\nnullification not only of Congress' exercise of its power,\nbut also of appellee's exercise of his power. In the lan-\nguage of the Coleman opinion, appellee's object in this\nlawsuit is to vindicate the effectiveness of his vote. No\nmore essential interest could be asserted by a legislator.\nWe are satisfied, therefore, that the purposes of the\nstanding doctrine are fully served in this litigation.\nII.\nArticle I, section 7, paragraph 2 of the United States\nConstitution prescribes the manner in which laws of the\nUnited States are enacted:\nEvery Bill which shall have passed the House of\nRepresentatives and the Senate, shall, before it be-\ncome a Law, be presented to the President of the\nUnited States; If he approves he shall sign it, but if\nnot he shall return it, with his Objections to that\nHouse in which it shall have originated, who shall\nenter the Objections at large on their Journal, and\n12\nproceed to reconsider it. If after such Reconsidera-\ntion two thirds of that House shall agree to pass the\nBill, it shall be sent, together with the Objections,\nto the other House, by which it shall likewise be\nreconsidered, and if approved by two thirds of that\nHouse, it shall become a Law. But in all such Cases\nthe Votes of both Houses shall be determined by\nyeas and Nays, and the Names of the Persons vot-\ning for and against the Bill shall be entered on the\nJournal of each House respectively. If any Bill shall\nFO\nnot be returned by the President within ten Days\n(Sundays excepted) after it shall have been pre-\nsented to him, the Same shall be a Law, in like Man-\nLIBRARY\nner as if he had signed it, unless the Congress by\ntheir Adjournment prevent its Return, in which\nCase it shall not be a Law. (Emphasis added.)\nAt issue in this case is whether the Christmas adjourn-\nment of 1970 was one which \"prevented\" the return of\nS. 3418 by the President. If so, then the President's fail-\nure to approve the bill within ten days of its presentation\nto him constituted a pocket veto. If the adjournment did\nnot prevent the return of S. 3418, then the bill became\nlaw without the President's signature. Our study of the\nconstitutional text itself, its history and previous judicial\ninterpretations of it convinces us that an intrasession\nadjournment of Congress does not prevent the President\nfrom returning a bill which he disapproves SO long as\nappropriate arrangements are made for the receipt of\npresidential messages during the adjournment. Since\nthe adjournment in question falls into this category, we\naffirm the district court's declaration that S. 3418 became\nlaw on December 25, 1970.\nOur analysis begins with the premise that the pocket\nveto power is an exception to the general rule that Con-\ngress may override presidential disapproval of proposed\nlegislation. Rejection of an absolute presidential veto is\nexplicit both in the proceedings of the Constitutional Con-\n13\nvention 18 and in contemporaneous commentary. Alexan-\nder Hamilton, himself an advocate of the absolute veto\nduring the Convention,19 later took pains to distinguish\nthe presidential veto power from that of the King of\nEngland:\nThe President of the United States is to have\npower to return a bill, which shall have passed the\ntwo branches of the Legislature, for re-considera-\ntion; but the bill SO returned is to become a law, if\nupon that re-consideration it be approved by two\nFORD\nthirds of both houses. The King of Great Britain,\non his part, has an absolute negative upon the acts\nof the two houses of Parliament. The disuse of that\npower for a considerable time past, does not affect\nGERALD\nthe reality of its existence; and is to be ascribed\nwholly to the crown's having found the means of\nsubstituting influence to authority, or the art of\ngaining a majority in one or the other of the two\nhouses, to the necessity of exerting a prerogative\nwhich could seldom be exerted without hazarding\nsome degree of national agitation. The qualified\nnegative of the President differs widely from this\nabsolute negative of the British sovereign\nThe Federalist No. 69, at 463-64 (J. Cooke ed. 1961)\n(A. Hamilton). Since it operates as an \"absolute nega-\ntive\", the pocket veto power is a departure from the cen-\ntral scheme of the Constitution. As such, it must be lim-\nited by the specific purpose it is intended to serve, a\npurpose explained in the following passage from Story's\nCommentaries:\n18 1 M. FARRAND, THE RECORDS OF THE FEDERAL CONVEN-\nTION OF 1787, at 104, 106 (Rev. ed. 1937) [hereinafter cited\nas M. FARRAND]; 2 M. FARRAND at 71, 200, 301, 582, 585 (the\nlast page recording the opinion of one delegate that even a\nprovision requiring a three-fourths vote to override \"puts\ntoo much in the power of the President\").\n19 1 M. FARRAND at 192, 300. See also 3 M. FARRAND at 624,\n627.\n14\nBut the President might effectually defeat the\nwholesome restraint [i.e. congressional override],\nthus intended, upon his qualified negative, if he\nmight silently decline to act after a bill was pre-\nsented to him for approval or rejection. The Con-\nstitution, therefore, has wisely provided, that, \"if\nany bill shall not be returned by the President with-\nin ten days (Sundays excepted) after it shall have\nbeen presented to him, it shall be a law, in like\nmanner as if he had signed it.\" But if this clause\nstood alone, Congress might, in like manner, defeat\nthe due exercise of his qualified negative by a ter-\nFORD\nmination of the session, which would render it im-\npossible for the President to return the bill. It is\ntherefore added, \"unless the Congress, by their ad-\nGERALD\njournment, prevent its return, in which case it shall\nnot be a law.\" 20\nThe pocket veto power is one component of a constitu-\ntional mechanism designed to enforce respect on the part\nof each of the law-making branches of the government for\nthe legislative authority of the other. This understanding\nof the purpose of the clause has led the Supreme Court to\nadopt a rule of construction which governs in this case:\nThe constitutional provisions [i.e., article I, sec-\ntion 7, paragraph 2] have two fundamental pur-\nposes; (1) that the President shall have suitable\nopportunity to consider the bills presented to him,\nand (2) that the Congress shall have suitable op-\nportunity to consider his objections to bills and on\nsuch consideration to pass them over his veto pro-\nvided there are the requisite votes. Edwards v.\nUnited States, 286 U.S. 482, 486. We should not\nadopt a construction which would frustrate either\nof these purposes.\nWright v. United States, 302 U.S. 583, 596 (1938).\nWhere possible, then, the pocket veto clause should be\nconstrued in a manner which preserves both purposes.\nSince a pocket veto always has the effect of frustrating\n20 1 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE\nUNITED STATES § 891 (5th ed. 1905) (footnotes omitted).\n15\nCongress' right to reconsider a vetoed bill,21 the preferred\nconstruction of the clause is that return of a bill was not\n\"prevented\" by an adjournment. Only two decisions of\nthe Supreme Court have addressed the question of whether\nan adjournment prevented the return of a bill. Appellant\nrelies upon the first of these and seeks to distinguish the\nlater decision from the present case.\nThe decision relied upon by appellant is The Pocket\nVeto Case, 279 U.S. 655 (1929), which held that the\nintersession adjournment of the 69th Congress prevented\nFORD\nthe return of a bill which had been presented to the Presi-\ndent eight days (excluding Sunday) before the adjourn-\nment of the first session. The opinion states two reasons\nfor the holding: (1) the word \"House\" in the return veto\nclause means \"House in session\" and does not permit re-\nturn of a bill to an officer or agent of the originating\nHouse during an adjournment; (2) return of a bill dur-\ning an intersession adjournment would result in a long\ndelay in the final disposition of the bill attended by pub-\nlic uncertainty as to its status. Id. at 682-84.22 A signifi-\ncant exception to this holding was established in the\nSupreme Court's only other pocket veto decision, Wright\nv. United States, supra at 589-90.23 Addressing the first\n21 Where a pocket veto is appropriate there is, by definition,\nno congressional right to override. See supra note 13.\n22 The Court also cited \"the practical construction that has\nbeen given to [the clause] by the Presidents through a long\ncourse of years, in which Congress has acquiesced.\" 279 U.S.\nat 688-89. A similar argument was made in this case and\nis treated below.\n23 In that case, a bill was return-vetoed by the President\nduring a brief recess of the Senate, the originating House. The\npetitioner, who relied upon the bill as the jurisdictional basis\nfor his unsuccessful claim in the Court of Claims, argued that\nno valid return had been effected. It was apparently his\nsimultaneous contention that no pocket veto was possible\nbecause \"Congress\" as a whole had not adjourned within the\n16\npart of the Pocket Veto Case rationale, the Court held\nthat the return of a bill may, in certain instances, be\naccomplished by delivery to an appropriate agent of the\noriginating House:\nNor was there any practical difficulty in making\nthe return of the bill during the recess. The organ-\nization of the Senate continued and was intact. The\nFURD\nSecretary of the Senate was functioning and was\nable to receive, and did receive, the bill. Under the\nconstitutional provision [article I, section 5, para-\nGERALD\ngraph 4] the Senate was required to reconvene in\nnot more than three days and thus would be able\nto act with reasonable promptitude upon the Presi-\ndent's objections. There is no greater difficulty in\nreturning a bill to one of the two Houses when it\nis in recess during the session of Congress than in\npresenting a bill to the President by sending it to the\nWhite House in his temporary absence. Such a pres-\nentation is familiar practice. The bill is sent by a\nmessenger and is received by the President. It is\nreturned by a messenger, and why may it not be\nreceived by the accredited agent as the legislative\nbody? To say that the President cannot return a\nbill when the House in which it originated is in re-\ncess during the session of Congress, and thus afford\nan opportunity for the passing of the bill over the\nPresident's objections, is to ignore the plainest prac-\ntical considerations and by implying a requirement\nof an artificial formality to erect a barrier to the\nexercise of a constitutional right.\nId. at 589-90. The Court then discussed the dangers it\nhad foreseen at the time of its earlier decision:\nHowever real these dangers may be when Congress\nhas adjourned and the members of its Houses have\ndispersed at the end of a session-the situation with\nwhich the Court was dealing-they appear to be\nmeaning of the phrase \"unless the Congress by their Adjourn-\nment prevent its return.\" See 302 U.S. at 597. See also Com-\nment, The Veto of S. 3418: More Congressional Power in the\nPresident's Pocket?, 22 CATHOLIC L. REV., 385, 391 (1973).\n17\nillusory when there is a mere temporary recess.\nEach House for its convenience, and during its ses-\nsion and the session of Congress, may take, and fre-\nquently does take, a brief recess limited, as we have\nseen, in the absence of the consent of the other House,\nto a period of three days. In such case there\nis no withholding of the bill from appropriate legis-\nlative record for weeks or perhaps months, no keep-\nFORD\ning of the bill in a state of suspended animation\nwith no certain knowledge on the part of the public\nwhether it was seasonably delivered, no causing of\nGERALD\nany undue delay in its reconsideration. When there\nis nothing but such a temporary recess the organi-\nzation of the House and its appropriate officers con-\ntinue to function without interruption, the bill is\nproperly safeguarded for a very limited time and\nis promptly reported and may be reconsidered im-\nmediately after the short recess is over. The pros-\npect that in such a case the public may not be\npromptly and properly informed of the return of\nthe bill with the President's objections, or that the\nbill will not be properly safeguarded or duly record-\ned upon the journal of the House, or that it will\nnot be subject to reasonably prompt action by the\nHouse, is we think wholly chimerical. If we regard\nthe manifest realities of the situation, we cannot\nfail to see that a brief recess by one House, such\nas is permitted by the Constitution without the con-\nsent of the other House, during the session of Con-\ngress, does not constitute such an interruption of\nthe session of the House as to give rise to the dan-\ngers which, as the Court apprehended, might de-\nvelop after the Congress has adjourned.\nId. at 595-96. Appellants emphasize two factual distinc-\ntions between Wright and the present case: (1) Wright\ninvolved an adjournment of only three days, a shorter\nperiod than the five-day adjournment at issue in this case;\n(2) only the Senate had adjourned in the former case\nwhereas both Houses were in recess at the time S. 3418\nwas disapproved. These distinctions fail to overcome the\nlogic and reasoning of the Wright decision.\n18\nThe five-day recess in this case was only two days\nlonger than that considered in Wright. Moreover, the\nmost significant portion of the recess, that which ex-\ntended beyond the ten-day period for return of a bill, was\nonly one day longer than that which occurred in Wright,2⁴\nand was actually within the maximum delay explicitly\napproved in Wright. As in the former case, the Senate\ncontinued in existence during the Christmas recess of\nRD\n1970 and the Secretary of the Senate was available to\nreceive messages from the President during the adjourn-\nGERALD\nLIBRARY\nment. 26 There was no danger that the bill could not be\nreconsidered \"with reasonable promptitude\" should it be\nreturned by the President during the adjournment. For\n24 The Senate's 1970 Christmas recess extended from Tues-\nday, December 22 to Monday, December 28-a period of five\ndays (excluding Sunday). See supra note 5. The Wright case\ninvolved an adjournment by the Senate of less than three days\nfrom Monday, May 4, 1936 until Thursday, May 7, 1936. 302\nU.S. at 585. The last day for return of S. 3418 was December\n25, 1970, two days (excluding Sunday) before the end of the\nSenate recess. In Wright, the tenth day fell on May 6, 1936,\nthe day before the Senate's return. 302 U.S. at 592.\n25 Even a narrow construction of Wright permits return of\na bill during a recess of the originating House which began at\nthe end of the ninth day of the President's ten-day period for\nconsideration. In such a case, Congress' reconsideration of\nthe bill would be delayed at least two days. See Kennedy V.\nSampson, supra note 8 at 1086.\n26 Unlike the Wright case, the Secretary of the Senate was\nexpressly authorized to receive messages from the President\nduring the 1970 Christmas adjournment. See supra note 6.\n27 The Wright opinion emphasizes that a brief recess does\nnot occasion long delay of Congress' reconsideration of a bill\nreturned during the recess-a problem envisioned in the case\nof the months-long intersession adjournment considered in\nthe Pocket Veto Case. As demonstrated above, the Christmas\nrecess of 1970 comes within the reasoning of Wright on this\npoint. We do not thereby intimate, however, that prompt re-\nconsideration of a returned bill is constitutionally required\n19\nthese reasons, the mere fact that the Senate was not in\nsession to physically receive the President's objections does\nnot require the conclusion that the Congress had, by its\nadjournment, prevented the return of S. 3418.\nThe fact that the House of Representatives had not\nadjourned in the Wright case is also a distinction without\na difference.28 Assuming that the conclusion of the fore-\nFORD\ngoing paragraph is correct, it is difficult to see how the\npresence or absence of the non-originating House at the\ntime of the return could affect our decision. To hold that\na return veto is possible while the originating House alone\nis in brief recess but not when both Houses are in recess\nwould embrace ritual at the expense of logic.2ˢ\nAs the foregoing discussion demonstrates, the present\ncase falls within the exception-or, at least, within a\nlogical extension of the exception-to the Pocket Veto\nin order to override a return veto. The Constitution itself sets\nno time limit upon Congress' right to override a presidential\nveto. By the same token, as we indicate in our alternative\ndiscussion, infra, the mere duration of an intrasession ad-\njournment will not \"prevent\" the return of a bill absent some\nconstitutional evil such as the danger of public uncertainty\nperceived in the Pocket Veto Case.\n28 The House of Representatives was in recess from Decem-\nber 22, 1970 until December 29, 1970, the day after the\nSenate's return. See supra note 5.\n29 See Note, The Presidential Veto Power: A Shallow\nPocket, 70 MICH. L. REV. 148, 161-62 (1971). The Wright\nopinion does state at the outset that the return of the dis-\napproved bill was not prevented because \"Congress\" (i.e.\nboth Houses) had not adjourned. This clearly was not the\nbasis for its decision, however, since the Court expressly re-\nserved the question of whether a more extended one-House\nadjournment might \"prevent\" the return of a vetoed bill. 302\nU.S. at 598. The Court relied, rather, upon the reasoning\nwhich we have outlined above; the brevity of the recess and\nthe availability of efficient methods for delivery of the Presi-\ndent's veto message.\n20\nCase established in Wright. Even if Wright were not\napplicable, however, appellants' reliance upon the Pocket\nVeto Case would be misplaced. The modern practice of\nCongress with respect to intrasession adjournments cre-\nates neither of the hazards-long delay and public uncer-\nFOR\ntainty-perceived in the Pocket Veto Case.\n2\nFirst of all, intrasession adjournments are much shorter\nthan the intersession adjournment considered in the\nPocket Veto Case. At the time of that decision, inter-\nsession adjournments of five or six months were still\ncommon. 30 By contrast, only four intrasession adjourn-\nments in the history of the Congress have exceeded sixty\ndays in duration. Of these, only two occurred in this\ncentury-a sixty-seven day recess in 1943 and a sixty-\nfour day recess in 1950. 31 Aside from these four, there\nhave been one hundred twenty-nine intrasession adjourn-\nments of more than three days as of June, 1974: two of\nthem for periods of fifty to sixty days; seven for periods\nof thirty to forty days; and two for periods of twenty to\nthirty days. The remaining one hundred eighteen were\nfor periods of less than twenty days.32 Until 1932, prac-\ntically every one of these adjournments was a Christmas\nholiday recess.³³ In 1933 the twentieth amendment took\neffect, setting January 3rd as the customary date for\ncommencement of each session of Congress. As a conse-\n30 The intersession adjournments of the 68th, 69th and 70th\nCongresses lasted six months respectively. 1974 CONGRES-\nSIONAL DIRECTORY 396. These Congresses covered the period\nfrom December, 1923 to March, 1929. The Pocket Veto Case\nwas decided in 1929.\n31 The other two adjournments occurred in 1867 (94 days\nand 123 days). See Appendix herein.\n32 See Appendix.\n33 Id. The exceptions are numbered 9, 12, 13, 61 and 70\nin Appendix.\n21\nquence, the pattern of intrasession recesses was altered\nsomewhat over the ensuing years. In the last decade,\nhowever, a consistent pattern of intrasession adjourn-\nments has again developed. Typically, there are several\nrecesses of approximately five days for various holidays\nand a summer recess (or recesses) lasting about one\nmonth.34\nPlainly, intrasession adjournments of Congress have\nvirtually never occasioned interruptions of the magnitude\nconsidered in the Pocket Veto Case.³ More importantly,\nFORD\nis\nreturn of a bill during an intrasession adjournment, what-\never its length, can no longer cause the public uncertainty\nenvisioned in the Pocket Veto Case. Modern methods of\nGERALD\ncommunication make it possible for the return of a disap-\nproved bill to an appropriate officer of the originating\nHouse to be accomplished as a matter of public record\naccessible to every citizen. The status of such a bill would\nbe clear; it has failed to receive presidential approval but\nmay yet become law if Congress, upon resumption of its\ndeliberations, passes the bill again by a two-thirds ma-\njority. This state of affairs generates no more public\nuncertainty than does the return of a disapproved bill\nwhile Congress is in actual session.⁸ The only possible\nuncertainty about this situation arises from the absence\nof a definitive ruling as to whether an intrasession ad-\njournment \"prevents\" the return of a vetoed bill. Hope-\nfully, our present opinion eliminates that ambiguity.\n34 See items 88-133 in Appendix.\n35 The only intrasession adjournments approaching this\noccurred in 1867. See supra note 31.\n36 The length of an intrasession adjournment per se does\nnot prevent the return of a disapproved bill for reconsidera-\ntion. The Constitution sets no time limit on the right of\nCongress to override a presidential veto.\n37 Hearings, supra note 13 at 14, 15.\n22\nAppellants' brief directs our attention to the \"con-\nsistent executive practice\" regarding pocket vetoes during\nintrasession adjournments. The court has considered this\nargument and finds it unpersuasive. As appellants admit,\nconsistent practice cannot create or destroy an executive\npower. Appellants' Br. at 37-38.\nIn addition, the precedents cited by appellants are not\nstrong. Of only thirty-eight intrasession pocket vetoes in\nGERALD\nLIBRARY\nthe nation's history, thirty (or 78%) have occurred since\nthe inauguration of President Franklin Roosevelt.³⁸ None\noccurred prior to 1867. 39 The intrasession pocket veto is,\ntherefore, a relatively modern phenomenon. Moreover, it\nis a phenomenon which has gained new significance in\nrecent years as brief, intrasession recesses have become\nmore frequent.⁴⁰ The present case arises from the shortest\nintrasession recess ever relied upon by any President as\nhaving prevented the return of a disapproved bill.41 It is\nalso significant that, in the single case which presented\nthe issue of whether an intrasession adjournment pre-\ncluded a return veto, the Supreme Court ruled that it had\nnot. Wright v. United States, supra. In our view, there-\nfore, the question raised in this case is still very much an\nopen one, prior executive practice notwithstanding.\nIn summary, we hold that the Christmas recess of 1970\ndid not prevent the return of S. 3418-a conclusion which\nmay be reached by either of two routes. First, the pres-\nent case is governed by the logic, if not the precise hold-\ning, of the Wright decision. Second, the case is an\nappropriate one for disposition of the question of whether\nany intrasession adjournment, as that practice is pres-\n38 See Appendix.\n39 Id.\n40 Id.\n41 Id.\n23\nently understood, can prevent the return of a bill by the\nPresident where appropriate arrangements have been\nmade for receipt of presidential messages during the\nadjournment-a question which must be answered in the\nnegative.\nAffirmed.\nand LIBRARY & GERALD\nA1\nAPPENDIX\nINTRASESSION ADJOURNMENTS OF MORE THAN\nTHREE DAYS BY CONGRESS (1789-June, 1974), IN-\nDICATING THE NUMBER OF POCKET VETOES\nDURING EACH ADJOURNMENT*\nLength\nof Ad- Number\njourn-\nof\nCongress/\nDates of\nment Pocket\nSession\nAdjournment\n(Days)\nVetoes\nFORD\n6/2\n1. Dec. 24, 1800-Dec. 30, 1800\n6\n0\n&\n15/1\n2. Dec. 25, 1817-Dec. 29, 1817\n4\n0\n20/2\n3. Dec. 25, 1828-Dec. 29, 1828\n4\n0\nGERALD\n35/1\n4. Dec. 24, 1857-Jan. 4, 1858\n11\n0\n35/2\n5. Dec. 24, 1858-Jan. 4, 1859\n11\n0\n37/3\n6. Dec. 24, 1862-Jan. 5, 1863\n12\n0\n38/1\n7. Dec. 24, 1863-Jan. 5, 1864\n12\n0\n38/2\n8. Dec. 23, 1864-Jan. 5, 1865\n13\n0\n39/1\n9. Dec. 7, 1865-Dec. 11, 1865\n4\n0\n10. Dec. 22, 1865-Jan. 5, 1866\n14\n0\n39/2\n11. Dec. 21, 1866-Jan. 3, 1867\n13\n0\n40/1\n12. March 31, 1867-July 1, 1867\n92\n1\n13. July 21, 1867-Nov. 21, 1867\n123\n1\n* Source: 1974 CONGRESSIONAL DIRECTORY 392; Presidential\nVetoes, Record of Bills Vetoed and Action Taken Thereon by\nthe Senate and House of Representatives, 1789-1968 (Com-\npiled by Senate Library, 1969); Calendar, 93rd Cong. (June\n24, 1974).\n** The date of the beginning of each adjournment is the\nfirst day on which neither House was in session; the date of\nthe end of each adjournment is the day on which one or both\nHouses resumed the session.\nA2\nPocket\nCongress\nDates\nDays\nVetoes\n40/2\n14. Dec. 21, 1867-Jan. 6, 1868*\n16\n2\n40/3\n15. Dec. 22, 1868-Jan. 5, 1869\n14\n0\n41/2\n16. Dec. 23, 1869-Jan. 10, 1870\n18\n0\n41/3\n17. Dec. 23, 1870-Jan. 4, 1871\n12\n0\n42/2\n18. Dec. 22, 1871-Jan. 8, 1872\n17\n0\n42/3\n19. Dec. 21, 1872-Jan. 6, 1873\n16\n0\n43/1\n20. Dec. 20, 1873-Jan. 5, 1874\n16\n0\n43/2\n21. Dec. 24, 1874-Jan. 5, 1875\n12\n0\n44/1\n22. Dec. 21, 1875-Jan. 5, 1876\n15\n0\n45/2\n23. Dec. 16, 1877-Jan. 10, 1878\n25\n0\nGERALD\nLIBRARY\n45/3\n24. Dec. 21, 1878-Jan. 7, 1879\n17\n0\n46/2\n25. Dec. 20, 1879-Jan. 6, 1880\n17\n0\n46/3\n26. Dec. 23, 1880-Jan. 5, 1881\n13\n0\n47/1\n27. Dec. 22, 1881-Jan. 5, 1882\n14\n0\n48/1\n28. Dec. 25, 1883-Jan. 7, 1884\n13\n0\n48/2\n29. Dec. 25, 1884-Jan. 5, 1885\n11\n0\n49/1\n30. Dec. 22, 1885-Jan. 5, 1886\n14\n0\n49/2\n31. Dec. 23, 1886-Jan. 4, 1887\n12\n0\n50/1\n32. Dec. 23, 1887-Jan. 4, 1888\n12\n0\n50/2\n33. Dec. 22, 1888-Jan. 2, 1889\n11\n0\n51/1\n34. Dec. 22, 1889-Jan. 6, 1890\n15\n0\n52/1\n35. Dec. 24, 1891-Jan. 5, 1892\n12\n0\n* There were additional adjournments in this session, from\nJuly 27, 1868, to September 21, to October 16, and to Novem-\nber 10. No business was transacted subsequent to July 27,\n1868, and the session adjourned sine die on November 10.\nIn effect, the adjournment on July 27 was a sine die adjourn-\nment. President Andrew Johnson pocket vetoed two bills\npresented to him after the adjournment of July 27, 1868.\nA3\nPocket\nCongress\nDates\nDays\nVetoes\n52/2\n36. Dec. 23, 1892-Jan. 4, 1893\n12\n1\n53/2\n37. Dec. 22, 1893-Jan. 3, 1894\n12\n0\n53/3\n38. Dec. 23, 1894-Jan. 3, 1895\n11\n0\n54/2\n39. Dec. 23, 1896-Jan. 5, 1897\n13\n2\n55/2\n40. Dec. 19, 1897-Jan. 5, 1898\n17\n0\n55/3\n41. Dec. 22, 1898-Jan. 4, 1899\n13\n0\n56/1\n42. Dec. 21, 1899-Jan. 3, 1900\n13\n0\n56/2\n43. Dec. 22, 1900-Jan. 3, 1901\n12\n0\nFORD LIBRARY i GERALD\n57/1\n44. Dec. 20, 1901-Jan. 6, 1901\n17\n0\n57/2\n45. Dec. 21, 1902-Jan. 5, 1903\n15\n0\n58/2\n46. Dec. 20, 1903-Jan. 4, 1904\n15\n0\n58/3\n47. Dec. 22, 1904-Jan. 5, 1905\n14\n0\n59/1\n48. Dec. 22, 1905-Jan. 4, 1906\n13\n0\n59/2\n49. Dec. 21, 1906-Jan. 3, 1907\n13\n0\n60/1\n50. Dec. 22, 1907-Jan. 6, 1908\n15\n0\n60/2\n51. Dec. 20, 1908-Jan. 4, 1909\n15\n0\n61/2\n52. Dec. 22, 1909-Jan. 4, 1910\n13\n0\n61/3\n53. Dec. 22, 1910-Jan. 5, 1911\n14\n0\n62/2\n54. Dec. 22, 1911-Jan. 3, 1912\n12\n0\n62/3\n55. Dec. 20, 1912-Jan. 2, 1913\n13\n0\n63/2\n56. Dec. 24, 1913-Jan. 12, 1914\n19\n0\n63/3\n57. Dec. 24, 1914-Dec. 29, 1914\n5\n0\n64/1\n58. Dec. 18, 1915-Jan. 4, 1916\n17\n0\n64/2\n59. Dec. 23, 1916-Jan. 2, 1917\n10\n0\n65/2\n60. Dec. 19, 1917-Jan. 3, 1918\n15\n0\n66/1\n61. July 2, 1919-July 8, 1919\n6\n0\nA4\nPocket\nCongress\nDates\nDays\nVetoes\n66/2\n62. Dec. 21, 1919-Jan. 5, 1920\n15\n0\n67/2\n63. Dec. 23, 1921-Jan. 3, 1922\n11\n0\n68/1\n64. Dec. 21, 1923-Jan. 3, 1924\n13\n0\n68/2\n65. Dec. 21, 1924-Dec. 29, 1924\n8\n0\n69/1\n66. Dec. 23, 1925-Jan. 4, 1926\n12\n0\n69/2\n67. Dec. 23, 1926-Jan. 3, 1927\n11\n0\nFOR\n70/1\n68. Dec. 22, 1927-Jan. 4, 1928\n13\n0\n&\n70/2\n69. Dec. 23, 1928-Jan. 3, 1929\n11\n1\n71/1\n70. June 20, 1929-Aug. 19, 1929\n60\n0\nGERALD\nLIBRARY\n71/2\n71. Dec. 22, 1929-Jan. 6, 1930\n15\n0\n71/3\n72. Dec. 21, 1930-Jan. 5, 1931\n15\n0\n72/1\n73. Dec. 23, 1931-Jan. 4, 1932\n12\n0\n74/2\n74. June 9, 1936-June 15, 1936\n6\n0\n76/3\n75. July 12, 1940-July 22, 1940\n10\n0\n78/1\n76. July 9, 1943-Sept. 14, 1943\n67\n3\n78/2\n77. Apr. 2, 1944-Apr. 12, 1944\n10\n1\n78. June 24, 1944-Aug. 1, 1944\n38\n5\n79. Sept. 22, 1944-Nov. 14, 1944\n53\n1\n79/1\n80. Aug. 2, 1945-Sept. 5, 1945\n34\n0\n80/1*\n* The Senate and the House of Representatives adjourned\non July 27, 1947 under a \"conditional final adjournment\"\nresolution, S. Con. Res. 33; 93 CONG. REC. 10400. Pursuant\nto the resolution, the two Houses were to stand in adjourn-\nment until January 2, 1948, unless recalled into session earlier\nby specified Senate and House leaders. In effect, the adjourn-\nment was a sine die adjournment, not an intrasession adjourn-\nment. On November 17, 1947, Congress convened pursuant to\nproclamation of President Truman, and adjourned sine die\non December 19, 1947. The President pocket vetoed 19 bills\npresented to him after the adjournment of July 27, 1947.\nA5\nPocket\nCongress\nDates\nDays\nVetoes\n80/2*\n81/2\n81. Sept. 24, 1950-Nov. 27, 1950\n64\n6\n83/2**\n84/1\n82. Apr. 5, 1955-Apr. 13, 1955\n8\n0\n84/2\n83. Mar. 30, 1956-Apr. 9, 1956\n10\n1\n85/1\n84. Apr. 19, 1957-Apr. 29, 1957\n10\n0\n85/2\n85. Apr. 4, 1958-Apr. 14, 1958\n10\n0\nFORD\ni\n86/1\n86. Mar. 27, 1959-Apr. 7, 1959\n11\n0\n86/2\n87. July 4, 1960-Aug. 8, 1960\n35\n6\nGERALD\n88/2\n88. July 11, 1964-July 20, 1964\n9\n0\n89. Aug. 22, 1964-Aug. 31, 1964\n9\n1\n89/2\n90. Apr. 8, 1966-Apr. 13, 1966\n5\n0\n91. July 1, 1966-July 11, 1966\n10\n0\n90/1\n92. Mar. 24, 1967-Apr. 3, 1967\n10\n0\n93. June 30, 1967-July 10, 1967\n10\n0\n94. Sept. 1, 1967-Sept. 11, 1967\n10\n0\n95. Nov. 23, 1967-Nov. 27, 1967\n4\n0\n* The Senate and the House of Representatives adjourned\non June 20, 1948, under a \"conditional final adjournment\"\nresolution, H. Con. Res. 218; 94 CONG. REC. 9158. Pursuant to\nthe resolution, the two Houses were to stand in adjournment\nuntil December 31, 1948, unless recalled into session earlier by\nspecified Senate and House leaders. In effect, the adjourn-\nment was a sine die adjournment, not an intrasession adjourn-\nment. On July 26, 1948, Congress convened pursuant to a\nproclamation of President Truman. The President pocket\nvetoed 14 bills presented to him after the adjournment of\nJune 20, 1948.\nThe House adjourned sine die on August 20, 1954.\nThereafter President Eisenhower pocket vetoed twenty-five\nbills. Although the Senate remained in session until December\n2, 1954, these were not intrasession pocket vetoes since the\nHouse had already finally adjourned.\nA6\nPocket\nCongress\nDates\nDays\nVetoes\n90/2\n96. Apr. 12, 1968-Apr. 17, 1968\n5\n0\n97. May 30, 1968-June 3, 1968\n4\n0\n98. July 4, 1968-July 8, 1968\n4\n0\n99. Aug. 3, 1968-Sept. 4, 1968\n32\n1\n91/1\n100. Feb. 8, 1969-Feb. 17, 1969\n9\n0\n101. Apr. 4, 1969-Apr. 14, 1969\n10\n0\n102. July 3, 1969-July 7, 1969\n4\n0\nGERALD\nLIBRARY\n103. Aug. 14, 1969-Sept. 3, 1969\n20\n0\n104. Nov. 27, 1969-Dec. 1, 1969\n4\n0\n91/2\n105. Feb. 11, 1970-Feb. 16, 1970\n5\n0\n106. Mar. 27, 1970-Mar. 31, 1970\n4\n0\n107. Sept. 3, 1970-Sept. 8, 1970\n5\n0\n108. Oct. 15, 1970-Nov. 16, 1970\n32\n1\n109. Nov. 26, 1970-Nov. 30, 1970\n4\n0\n110. Dec. 23, 1970-Dec. 28, 1970\n5\n2\n92/1\n111. Feb. 21, 1971-Feb. 7, 1971\n5\n0\n112. Apr. 8, 1971-Apr. 14, 1971\n6\n0\n113. May 28, 1971-June 1, 1971\n4\n0\n114. July 2, 1971-July 6, 1971\n4\n0\n115. Aug. 7, 1971-Sept. 8, 1971\n32\n1\n116. Oct. 22, 1971-Oct. 26, 1971\n4\n0\n117. Nov. 25, 1971-Nov. 29, 1971\n4\n0\n92/2\n118. Feb. 10, 1972-Feb. 14, 1972\n4\n0\n119. Mar. 31, 1972-Apr. 4, 1972\n4\n0\n120. May 26, 1972-May 30, 1972\n4\n0\n121. July 1, 1972-July 17, 1972\n16\n0\n122. Aug. 19, 1972-Sept. 5, 1972\n17\n1\nA7\nPocket\nCongress\nDates\nDays\nVetoes\n93/1\n123. Feb. 9, 1973-Feb. 15, 1973\n6\n0\n124. Apr. 20, 1973-Apr. 30, 1973\n10\n0\n125. May 25, 1973-May 29, 1973\n4\n0\n126. July 1, 1973-July 9, 1973\n8\n0\n127. Aug. 4, 1973-Sept. 5, 1973\n32\n0\nj\nFORD\n128. Oct. 19, 1973-Oct. 23, 1973\n4\n0\n129. Nov. 22, 1973-Nov. 26, 1973\n4\n0\nGERALD\n93/2\n130. Feb. 9, 1974-Feb. 13, 1974\n4\n0\n131. Mar. 14, 1974-Mar. 19, 1974\n5\n0\n132. Apr. 12, 1974-Apr. 22, 1974\n10\n0\n133. May 24, 1974-May 28, 1974\n4\n0\n-\n38\n.1\nFAHY, Senior Circuit Judge, with whom BAZELON,\nChief Judge joins: I concur in the opinion of Judge Tamm\nfor the court, adding only a few notes.\nAppellants contend in this court only that Senator Ken-\nnedy lacks standing to obtain the adjudication he seeks,\nand that the proposed legislation never became law be-\ncause of a valid pocket veto. The opinion of Judge Tamm\nmeets these contentions. The position asserted in the\nDistrict Court that the President was an indispensable\nparty has not been renewed in this court; nor is any\nissue of jurisdiction or justiciability now raised, aside\nFORD\ni\nfrom the problem of standing as it might bear upon\njurisdiction or justiciability.\nGERALD\nI do not think the standing of Senator Kennedy is quite\nthe same as the 20 senators of the State of Kansas, the\nplaintiffs in Coleman V. Miller, 307 U.S. 433 (1939).\nRatification by Kansas of the Child Labor Amendment\ndepended upon the validity of the vote of the Lieutenant\nGovernor which the senators challenged. If his vote\nshould not have been counted the Senate was equally\ndivided, 20-20, and ratification by Kansas would have\nfailed. In the present case, Senator Kennedy's vote did\nnot control passage of S. 3418. Nevertheless, his interest\nis substantial. As a United States Senator he represents\na sovereign State whose people have a deep interest in the\nAct and look to their Senators to protect that interest;\nand he, as Senator, it seems to me, has a legal right not\nonly to seek judicial protection of those interests, believed\nby him to be threatened by an invalid veto, but also, in\nthe circumstances, to protect his own interest as a na-\ntional legislator in the bill for which he voted. These in-\nterests I think do not depend for their protection upon\naffirmative approval by the Senate itself of efforts to\nobtain judicial relief. Moreover, as Judge Tamm points\nout, the Senator's stake in the outcome of the controversy\nmeets the adversary test of standing under Baker V. Carr,\n2\n369 U.S. 186, 204 (1962), and subsequent decisions of\nthe Court.\nThe aliveness of the controversy also seems clear.\nWhether the Act is to continue in its present form of\ncourse is for Congress to decide, but it has not been\nFUR\nabandoned. Although its uncertain status necessarily\naffected congressional appropriations, the Second Supple-\nmental Appropriations Act, 1973, 87 Stat. 106, includes\nGERALD\nIBRAR\na $100,000 appropriation to carry out the purposes of the\nFamily Practice of Medicine Act, S. 3418, to remain\navailable until expended. S. REP. No. 160, 93d Cong.,\n1st Sess. 48-49 (1973)."
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