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Congressional - Legislation Becoming Law Without the President's Signature
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Congressional - Legislation Becoming Law Without the President's Signature
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The original documents are located in Box 7, folder "Congressional - Legislation Becoming
Law Without the President's Signature" of the Philip Buchen Files at the Gerald R. Ford
Presidential Library.
Copyright Notice
The copyright law of the United States (Title 17, United States Code) governs the making of
photocopies or other reproductions of copyrighted material. Gerald R. Ford donated to the United
States of America his copyrights in all of his unpublished writings in National Archives collections.
Works prepared by U.S. Government employees as part of their official duties are in the public
domain. The copyrights to materials written by other individuals or organizations are presumed to
remain with them. If you think any of the information displayed in the PDF is subject to a valid
copyright claim, please contact the Gerald R. Ford Presidential Library.
Digitized from Box 7 of the Philip Buchen Files at the Gerald R. Ford Presidential Library
THE WHITE HOUSE
WASHINGTON
September 7, 1976
MEMORANDUM FOR:
PHIL BUCHEN
FROM:
SUBJECT:
Allowing legislation to become law
JIM CANNO Jm
without President's signature
The President is considering not acting on the
appropriations bill for the Public Works/Counter-cyclical
program which is expected to be passed soon. (You will
remember the Congress overrode the President's veto of
the authorizing legislation.)
Would you please have the appropriate member of your
staff look into the legal/historical background relevant
to this course of action? Specifically,
(1) What procedures are followed, e.g. is a state-
ment issued, etc.?
(2) What was the original purpose of time require-
ments for Presidential action?
(3) How has the provision been used in the past --
both by President Ford and former Presidents?
FORD LIBRARY
THE WHITE HOUSE
WASHINGTON
September 13, 1976
MEMORANDUM FOR:
JIM CANNON
FROM:
PHIL BUCHEN
SUBJECT:
Enactment of Legislation Without
the Approval of the President
This responds to your request of September 7 on the
subject noted above:
I
Article I, section 7, clause 2 of the Constitution
provides in pertinent part:
Every Bill which shall have passed
the House of Representatives and the
Senate, shall, before it become a Law,
be presented to the President of the
United States: If he approves he shall
sign it, but if not he shall return it,
with his Objections to that House in which
it shall have originated.
* * *
If any Bill shall not be returned
by the President within ten Days
(Sundays excepted) after it shall have
FORD
been presented to him, the Same shall
be a Law, in like Manner as if he had
signed it, unless the Congress by their
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Adjournment prevent its Return, in which
Case it shall not be a Law.
The Constitution thus gives the President the primary
options of approving a bill by signing it, or of
returning it to Congress with his objections. In the
latter case it becomes law only if approved by two-
thirds of both Houses of Congress. If, however, the
President does not exercise either option within ten
days (Sundays excepted) following the presentation of
the bill to him, and the Congress is in session at that
time, the bill will become law as if he had signed it.
In other words, if Congress is in session at the end of
-2-
the ten-day period allowed to the President for the
exercise of his veto, a bill becomes law when the
President approves it or if he remains inactive.
An examination of the records of the Constitutional
Convention and of the Federalist Papers has not dis-
closed any discussion of the constitutional provision
that a bill becomes law if the President fails to sign
it by the expiration of the veto period, provided
Congress is still in session. The reason for this
lack of discussion is probably that this technical
aspect of the veto provisions of the Constitution was
copied from state Constitutions. Alexander Hamilton
suggested that it was derived from the Massachusetts
Constitution. The Federalist, No. 69. In United States
V. Weil, 29 Ct. Cl. 523, 542-546 (1894), Judge Knott
documented quite convincingly that it was derived
from the New York Constitution. Both Constitutions
provided "in order to prevent unnecessary delays" that
a bill shall become law if it is not returned within a
specified period. In other words, a bill became law
unless the veto power was exercised within the consti-
tutional period.
II
In early July, 1789, President Washington considered
permitting the Tonnage Act of July 31, 1789, 1 Stat. 29,
to become law without his signature because of his
objection to its discriminatory provisions. He did not
do SO since he had been assured that the Senate was
preparing another law that would obviate his objections.
The Writings of Washington, Vol. 30, p. 359, at 363. 1/
The practice of allowing bills to become law without
the President's signature apparently began with
President Buchanan and was used fairly frequently for
the following thirty years. It appears that a study
prepared in 1890 by S. E. Mason, The Veto Power, sets
1/ The Act of September 16, 1789, 1 Stat. 69, suspended
the Act of July 31, 1789, in part.
is
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-3-
forth the number of bills which became law without the
approval of the President:
President Buchanan
2
Lincoln
1
Johnson
18
Grant
136
Arthur
13
Cleveland
283
See Rogers: The Power of the President to Sign Bills After
Congress has Adjourned, 30 Yale Law Journal 1, 4 at fn. 6.
There appears to be no tabulation for the period
from 1890 to 1945. But we do know that during President
Wilson's illness in the fall of 1919, 28 bills became
law without his signature. Rogers, American Government
and Politics, 14 American Political Science Review, 74,
87. See 41 Stat. 324-356 passim. In 1938, President
Franklin D. Roosevelt permitted the Internal Revenue
Act of 1938 to become law without his signature. 52
Stat. 447, 584. In an address given at Arthurdale, West
Virginia, he explained that he was neither approving nor
returning the bill, but taking the "third course of action
which is open to me under the Constitution" in order to
call "the definite attention of the American people to
those unwise parts of the bill that I have been talking to
you about today. The Public Papers and Addresses of
Franklin D. Roosevelt, 1938, 355, 365-365, see also id.,
at 218.
Beginning in 1945, the Office of the Executive Clerk
of the White House has maintained records of bills which
became law without the President's signature. That
Office has furnished the following information:
In the 1950's, President Truman permitted a minor
public bill 3/ and the following four private bills to
become law without his signature. Acts of August 12,
1950, 64 Stat. A 168; July 7, 1951, 65 Stat. A 55;
August 23, 1951, 65 Stat. A 84; July 1, 1952, 66 Stat.
A 120. President Truman had desired to let the
Independent Offices Appropriation Bill, 1952, become
law without his signature. At that time the House of
Representatives, in which the legislation had originated,
was in recess but the Senate was in session. Since it was
uncertain whether the adjournment of one House constituted
an adjournment of the Congress within the meaning of the
FORD
2/ President Roosevelt also stressed the exceptional
nature of his procedure.
3/ Act of February 26, 1950, 64 Stat. 11, authorizing
the Marine Corps Band to attend the celebration of the
175th anniversary of the Battle of Lexington and Concord.
-4-
Constitution (see Wright V. United States, 302 U.S.
583 (1938) ) President Truman approved the bill rather
than risk an unintended pocket veto. 65 Stat. 268.
President Eisenhower permitted Private Law 84-
146 of July 6, 1955, to become law without his
signature. 69 Stat. A 51.
President Nixon permitted the following legislation
to become law without his signature:
1. Act of June 30, 1970, to provide a
special milk program for children, Pub.
L. 91-295, 84 Stat. 336.
2. Act of October 6, 1970, the Emergency
Community Facilities Act of 1970, Pub.
L. 91-431, 84 Stat. 886.
3. Act of December 18, 1973, conferring
jurisdiction on the U. S. District Court
of certain civil actions brought by the
Senate Select Committee on Presidential
Campaign Activities, Pub. L. 93-190, 87 Stat. 736.
It may be noted that President Nixon sought to pocket
veto the Family Medicine Bill presented to him December 14,
1970. The Court of Appeals for the District of Columbia
Circuit held that the Christmas recess of Congress did not
prevent the return of the bill and that the legislation
therefore had become law on December 25, 1970, without
the President's approval. Publ. L. 91-696, 84 Stat.
(Supp.) 2080-1.
President Ford permitted a bill suspending a cost
increase of food stamps to become law without his signa-
ture. Act of February 20, 1975, Pub. L. 94-4, 89 Stat. 6.
III
In connection with the instances prior to 1890,
records are not available to ascertain whether Presidents
issued statements when they permitted bills to become
law without their signature. The circumstances surrounding
President Wilson's illness indicate why no statements
were issued at that time. It has been shown above that
President Roosevelt delivered a speech explaining why
he did not approve the Internal Revenue Act of 1938
The bills which became law during the Administrations FORD
Presidents Truman and Eisenhower without the President's
LIB
signature were too insignificant to warrant an explanation.
In each of the four instances in which Presidents Nixon
and Ford intentionally permitted bills to become law
-5-
without specific approval, they issued statements
setting forth the reasons for having taken that course
of action. See the statements of June 30, 1970,
6 Weekily Compilation of Presidential Documents 856;
October 6, 1970, 6 id. 1342; December 17, 1973, 9 id.
1470; and February 13, 1975, 11 id. 182.
IV
Occasionally there have been statements to the
effect that the Constitution imposes on the President
the requirement to approve or return a bill presented
to him, and that the clause permitting a bill to
become law without his signature is intended to cover
the situation where a President "neglects" to perform
that constitutional duty. Thus, President Taft stated
in a lecture delivered in 1961:
The language of the Constitution with
reference to what the President shall do
with a bill leaves only two alternatives,
one that if he approve he shall sign the
bill, the other that he shall return it
with his objections. It does provide that
if he fails to return it within ten days
it shall become a law, but this would seem
to be only a provision for his neglect. In
practice [sic], however, some Presidents
have allowed bills to become law without
their signature, with the idea, I presume,
that objections to the bill prevented
affirmative approval and yet were not of
such a character as to justify a veto.
Mr. Cleveland looked at the matter in this
way when he allowed the Wilson-Gorman tariff
bill to become a law without his signature,
though he had denounced it in most emphatic
terms in a letter to Mr. Catchings, of the
house, as an act of perfidy and dishonor.
My own judgment is that the wiser course in
such a case is for the President to sign
the bill, with a memorandum of his reasons
for doing so, in spite of his objections.
Taft, The Presidency, pp. 24-25. (Emphasis
added)
In Gardner V. Collector, 6 Wall. 499, 506
(1867), the Supreme Court, however, recognized that the
Language to the effect that the President is under
a duty to sign bills which he approves and to return
bills which he disapproves may be found in The Pocket
Veto Case, 279 U.S. 655, 677 (1929). See also La Abra
Silver Mining Co. V. United States, 175 U.S. 423,
453-4 (1899).
-6-
Constitution gives the President two courses of
action to effectuate the enactment of a bill, viz., to
sign it, or to keep it for ten days. This supports
President Roosevelt's statement, supra, that the
Constitution confers on the President three choices:
viz., to sign, to return, or to remain inactive.
As one scholar suggests, the Constitution designedly
enables a President to permit a bill to become law
without his formal endorsement. W. F. Willoughby,
Principles of Legislative Organization and
Administration, p. 92.
The practice of explaining why the President
permits a bill to become law without his approval
should suffice to overcome most of President Taft's
objections to that course of action.
##
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