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Pocket Veto - General
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Pocket Veto - General
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White House Records Office: Legislation Case Files
Legislation Case Files
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The original documents are located in Box 1, folder "Pocket Veto - General" of the White
House Records Office: Legislation Case 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States of America his copyrights in all of his unpublished writings in National Archives collections.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.
Exact duplicates within this folder were not digitized.
Digitized
1/30/76
Mr. Jones:
LIBRARY i 938830
FYI and retention.
Original was sent to Mr. Schmults today for
appropriate handling.
Katie
Tom
J
Office of the Attorney General
Washington, D. C. 20530
/
JUSTITIA
January 29, 1976
The President
The White House
Washington, D. C.
BERALD FORD LIBRARY
Dear Mr. President:
The Department of Justice is presently involved in a case
which raises the question whether a President may lawfully use
a pocket veto during intra-session and inter-session adjournments
of Congress. That case, Kennedy V. Jones, is now pending in the
District Court for the District of Columbia and concerns two bills
which were pocket vetoed, the first by President Nixon during the
sine die adjournment of the 1st Session of the 93rd Congress, which
lasted 29 days, and the other by you during a 32-day intra-session
recess taken by both Houses of the 93rd Congress. The bill pocket
vetoed by President Nixon would have amended the Urban Mass Trans-
portation Act of 1964 to permit buses purchased pursuant to that
Act to be used to provide charter bus services. The bill which
you pocket vetoed would have amended the Vocational Rehabilitation
Act in connection with certain programs for the handicapped. Con-
gress has since passed bills identical to the bills which were
pocket vetoed, and they have been signed into law.
After extensive consideration of the issue, and based on an
examination of the judicial decisions construing the Pocket Veto
Clause of the Constitution and the policy behind it, I have con-
cluded that it is extremely unlikely that we will prevail in our
contention that the bills involved in the Kennedy case were law-
fully pocket vetoed. In addition, I am of the opinion that con-
tinued use of the pocket veto during intra-session and inter-
session recesses or adjournments, where the appropriate House of
Congress has specifically authorized an officer or agent to re-
ceive return vetoes during such periods, cannot be justified as
consistent with the provisions. of the Constitution. I therefore
recommend that the Department of Justice be authorized to accept
judgment on the merits in the Kennedy case, and also that I be
authorized to make the following statement on your behalf:
President Ford has determined that he will
use the return veto rather than the pocket veto
during intra-session and inter-session recesses
and adjournments of the Congress, provided that
- 2 -
FORD
the House of Congress to which the bill and
the President's objections must be returned
GERALD
LIBRARY
according to the Constitution has specifically
authorized an officer or other agent* to receive
return vetoes during such periods.
Because of the importance of this issue, I am attaching
the memorandum of the Solicitor General discussing in detail the
legal basis for my recommendation, the problems posed by continu-
ation of the Administration's present policy regarding the pocket
veto, and the possible objections to my recommendation. The De-
partment's position may be summarized as follows:
The Pocket Veto Clause of the Constitution, Art. I, Sec. 7,
provides that the pocket veto may only be used in cases in which
the Congress, "by their Adjournment,' has prevented the use of
the return veto. Such cases would appear to exist only (1) dur-
ing a recess when no agent of the originating House is available
to accept the return, or (2) during the period following the
final adjournment of one Congress and preceding the convening
of another. In all other cases, Congress would in fact be able
to consider the President's objections and complete the legis-
lative process by overriding or sustaining the veto. This con-
struction is in accord with the clear intent of the Framers that
the President exercise only a "qualified negative" (See the
Federalist, No. 69) over proposed legislation, and not the "abso-
lute negative" implicit in the pocket veto. It is also in accord
with the original and limited purpose of the Pocket Veto Clause --
to enable the President to veto a bill in those extraordinary
cases where Congress seeks to deprive him of the veto power by
adjourning and thus preventing the return of an unsigned bill.
Although the judicial decisions construing the Clause are
less than satisfactory, they nevertheless appear to support the
above position. In the Pocket Veto Case, the Supreme Court ap-
proved the use of a pocket veto during a five-month inter-session
adjournment of Congress, when agents of the originating House were
available, although not specifically authorized, to accept a re-
turn veto. But later in Wright V. United States, the Court, al-
though approving the use of a return veto during a shorter intra-
session recess of the originating House, established that a veto
may be returned to an accredited agent of the originating House
even if it is not. in session. Recently, in Kennedy V. Sampson,
the Court of Appeals for the District of Columbia Circuit con-
strued the Supreme Court's decision in Wright to bar use of the
pocket veto during a short intra-session adjournment of Congress.
- 3 -
It is our view that the Kennedy V. Sampson decision was correct,
and that the Supreme Court would not presently approve the use
of a pocket veto during a temporary adjournment of the Congress
if appropriate arrangements had been made by the originating
House for the receipt of presidential messages during the ad-
journment.
There would not appear to be any advantage in continuing
to maintain our present position regarding pocket vetoes in the
Kennedy V. Jones case. As I have mentioned, our chances of suc-
cess are remote, and our position is not constitutionally sound.
Moreover, continuation of the litigation may risk an adverse
decision on the question of congressional standing, an issue
also presented by the case. There is the danger that the Court's
desire to reach the merits of the case may constitute an irre-
sistible temptation to decide the standing question in favor of
Senator Kennedy. Since this later issue is of considerable im-
portance, it would seem advisable to await a more favorable case
on the merits from the Executive's position before presenting the
congressional standing issue to the Court.
I would, of course, be glad to discuss this matter with you.
Because of the status of the litigation, it is important that this
matter be decided as soon as practicable.
Sincerely,
GERALD FORD LIBRARY
Edward H. Levi
Attorney General
IT
OF
ffice of the Solicitor General
UMA
Washington, D.C. 20530
THE
January 26, 1976
MEMORANDUM TO THE ATTORNEY GENERAL
FROM: SOLICITOR GENERAL
RHB
BERALD FORD LIBRARY
RE: POCKET VETOES
Recommendations: (1) We recommend that the
Attorney General be authorized to make the following public
announcement on behalf of the President:
President Ford has determined that he
will use the return veto rather than the
pocket veto during intra-session and inter-
session recesses and adjournments of the
Congress, provided that the House of Congress
to which the bill and the President's objections
must be returned according to the Constitution
has specifically authorized an officer or other
agent to receive return vetoes during such
periods.
(2) In accordance with the position expressed in
the foregoing announcement, we further recommend that the
Department of Justice be authorized to accept judgment in
Kennedy V. Jones, Civil Action No. 74-194 (D. D.C.).
This recommendation is based upon our analysis of
constitutional policy as well as our estimate of the likely
outcome of litigation. This memorandum first sets out a Summary
of its analysis and then in more detail discusses (1) the text
and apparent policy of the Constitution, (2) pertinent judicial
decisions, and (3) possible objections to our recommendations.
SUMMARY
The constitutional text limits the use of the
pocket veto to circumstances in which Congress, "by their
Adjournment," has prevented use of the return veto. The
constitutional question is, therefore, when does Congress'
adjournment prevent the President from returning a bill with
his objections. As a matter of pure logic, the answer to
that question would be (1) during a recess when no agent of
-2-
the originating House is available to accept the return and
(2) during the period following the final adjournment of one
Congress and preceding the convening of another. In all
FORD
other circumstances, Congress could consider the President's
objections to the bill and complete the legislative process
by sustaining or overriding the veto. Although the history
LIBRARY
of the Constitutional Convention sheds little further light
on this matter, it is apparent that the Framers intended the
President to exercise only a qualified negative over legisla-
tion and did not contemplate an expansive reading of the Pocket
Veto Clause.
The judicial history of the Clause introduces some
confusion, however. In The Pocket Veto Case, the Supreme Court
sanctioned the use of the pocket veto during a long inter-
session adjournment of Congress, when agents of the originating
House were available, although not specifically authorized, to
accept a return veto. But just nine years later, in Wright V.
United States, the Court sanctioned the use of the return veto
during a shorter intra-session recess of the originating House,
and in doing SO significantly, although in part implicitly,
retracted much of its analysis in the earlier case. At a
minimum, Wright stands for the proposition that a veto may
be returned to an accredited agent of the originating House
while that House is not in session. In Kennedy V. Sampson,
the Court of Appeals for the District of Columbia Circuit
extended the Supreme Court's reasoning in Wright to bar use
of the pocket veto during a short intra-session adjournment
of Congress. We believe that decision was correct. The
Constitution requires the unsigned bill to be returned to the
originating House; if, as in Wright, the temporary absence of
the originating House does not prevent a return, we see no
reason why the simultaneous absence of the nonoriginating
House should change that result.
The case now pending in the District Court for the
District of Columbia, Kennedy V. Jones, involves the use of
pocket vetoes during (1) a somewhat longer (32-day) intra-
session adjournment of Congress and (2) an inter-session
adjournment. We do not believe that the length of the
intra-session adjournment can be constitutionally significant
under modern conditions, so long as an agent remains behind
who is authorized and available to receive a return veto. Nor
do we regard the difference between intra-session and inter-
session adjournments to require a difference in constitutional
practice; in both situations the same Congress that passed the
bill would, upon reconvening, be able to consider the President's
objections and determine whether they should be sustained or
overridden; in those circumstances the return of the bill would
not appear to have been prevented within the meaning of the
Pocket Veto Clause.
-3-
I. Constitutional Text and Policy
The second paragraph of Article I, Section 7, of the
Constitution provides in relevant part as follows:
Every Bill which shall have passed the
House of Representatives and the Senate, shall,
before it becomes 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
FORD
shall have originated, who shall enter the
Objections at large on their Journal, and
proceed to reconsider it. If after such
GERALD
LIBRARY
Reconsideration two thirds of that House shall
agree to pass the Bill, it shall be sent, together
with the Objections, to the other House, by which
it shall likewise be reconsidered, and if approved
by two thirds of that House, it shall become a
Law * * * If any Bill shall not be returned by
the President within ten Days (Sundays excepted)
after it shall have been presented to him, the
Same shall be a Law, in the like Manner as if
he had signed it, unless the Congress by their
Adjournment prevent its Return, in which Case it
shall not be a Law.
Were we construing the Constitution afresh, neither
enlightened nor encumbered by later judicial gloss, it would
appear obvious that the return veto is required in all cases
where Congress has not made its use impossible. The normal
course of interaction between a Congress and a President who
disagree is prescribed as: legislation, return veto, attempt
to override. The President thus has a qualified negative over
legislative acts. The pocket veto exists solely to prevent
Congress from depriving the President of that qualified negative
and SO leaving the legislative power completely unchecked.
The return veto requires Congress to muster a two-
thirds majority to override. The pocket veto, by requiring
Congress to reenact the legislation and then muster a two-
thirds majority to override a subsequent return veto, thus
requires congressional consideration of the same measure not
two but three times before the President's qualified negative
may be overcome. There can be no justification for placing that
burden on the process except that Congress itself has made it
inevitable by preventing the use of the return veto.
This said, it follows that the use of a pocket veto
is improper whenever a return veto is possible. The pocket
veto is not properly viewed, in the constitutional design, as
a presidential prerogative; it is, rather, a narrowly limited
-4-
presidential defense to the exercise by Congress of the
latter's own prerogative, "by their Adjournment," to prevent
the return of an unsigned bill.
The constitutional question, then, is when is a return
veto impossible, when does "Congress by their Adjournment prevent
[a bill's] Return." The Constitution does not answer explicitly,
but the plain indication that the return veto is heavily pre-
ferred and the practical construction that should be given the
concept of impossibility argues that the pocket veto is proper
in only two circumstances: (1) during an intra-session or
inter-session recess when no officer or designated agent of
the House in which the bill originated is available to accept
the return; or (2) when a Congress, either House of it, has
finally adjourned SO that the Congress that next meets will
not be the same legislative body.
The procedures required (or not required) by Article I,
Section 7, support these conclusions. The President is required
to return the bill within ten days (Sundays excepted), but there
is no time limit, express or implied, placed upon the obligation
of the House to which the bill is returned to "enter the
Objections at large on their Journal, and proceed to reconsider"
the bill. This suggests that the length of an adjournment or
recess is irrelevant to the question of whether a return or a
pocket veto is appropriate. The relevant consideration is the
ability of the President to make the return. (It is also true
that only when a Congress has ended would it be impossible for
FORD
a House to "proceed to reconsider.")
It has been contended that a return veto is
GERALD
LIBRARY
impossible unless the originating House is in session. The
constitutional text imposes no such requirement, however, and
there is no apparent reason why it should be implied. The bill
is required to "be presented to the President of the United
States," but it has never been doubted that his agent at the
White House may accept the presentation and that the President's
ten days begins to run then, even if he does not return to the
White House or even to the country during that period. There
being no time limit upon the reconsideration of a vetoed bill
by the originating House, there is even less reason to suppose
that the return veto cannot be made to its officer or agent
for action when that House reassembles.
Finally, it should be noted that the constitutional
text does not prescribe a time limit for the period between
the passage of a bill and its presentation to the President.
Thus, were it supposed that the President had a power to
pocket veto a bill because the tenth day fell during a recess
or adjournment, Congress could defeat the power by leaving
a bill with an officer instructed to present it to the
President nine days before the end of any recess or adjournment.
-5-
This fact reduces the argument for the power to pocket veto
during intra-session or inter-session recesses or adjournments
to the level of constitutional triviality. The power would
arise only by accident, oversight, or when Congress preferred
a pocket veto to a return veto. These are not considerations
that rise to the level of constitutional argument.
The legislative history of the veto provisions,
though by no means conclusive, tends to confirm the argument
from the text. There is abundant evidence from the proceedings
of the Constitutional Convention, and from other sources, that
the Framers viewed any veto as a limited exception to their
basic legislative scheme according ultimate authority over the
passage of federal legislation to the Congress. The absolute
veto power that had been possessed by the King of England and
by many of the colonial governors had been a major source of
friction between the Colonies and England during the pre-
revolutionary period, and efforts to confer a like power upon
the President were expressly rejected by the Framers. See
1 M. Farrand, The Records of the Federal Convention of 1787
(1937 ed.), at pp. 104, 106; 2 M. Farrand, at pp. 71, 200, 301,
582, 585.
At the same time, however, the Framers were apparently
convinced that the power to enact laws for the governance of
the Nation was of too great a magnitude to allow it to be given
to the legislative branch without any checking or balancing
provisions. They therefore conferred upon the President
the power to exercise a "qualified negative" (see the
Federalist, No. 69) over proposed legislation, a negative
requiring the Congress to reconsider bills of which the President
disapproved but which could be overridden by a two-thirds
majority of both Houses. The history of the clause thus
clearly counsels a narrow construction of the occasions for
its exercise (see e.g., 1 J. Story, Commentaries on the
Constitution of the United States $891 (5th ed., 1905). This
view of the veto as a qualified negative does not support an
expansive view of the scope of presidential power to
use the pocket veto.
II. Judicial Decisions
GERALD FORD LIBRARY
The Supreme Court has addressed the scope of the
Pocket Veto Clause on only two occasions -- in The Pocket
Veto Case, 279 U.S. 655 (1929), and Wright V. United States,
302 U.S. 538 (1938). Since on neither occasion did the Court
undertake an exhaustive examination of the circumstances in
which use of the pocket veto would be constitutionally
appropriate, many questions are left open to debate. Moreover,
some of the Court's rationale in The Pocket Veto Case appears
-6-
inconsistent with the text and history of the relevant
constitutional provisions and, indeed, with some of the
Court's rationale in the subsequent Wright decision.
Although the holding in The Pocket Veto Case might
well be affirmed were the Court presented in the future with
a case involving the same facts, we do not believe -- given
the significantly different approach to the Pocket Veto
FORD
Clause embraced in Wright -- that the Court's original
rationale would survive intact. Indeed, portions of that
rationale were either directly or indirectly rejected in
LIBRARY
Wright. The Court's opinion in the latter case strongly
suggests, in our judgment, that the Supreme Court would not
presently approve the use of a pocket veto during a temporary
adjournment of the Congress so long as (1) appropriate
arrangements had been made by the originating House for the
receipt of presidential messages during the adjournment and
(2) the length of the adjournment did not exceed the lengths
of adjournments that have become typical in modern times. We
think it likely, moreover, that the Court might drop the
second factor, i.e., that the length of the adjournment might
be held irrelevant and thus not a reason for allowing the
use of a pocket veto.
A. The Pocket Veto Case. The Supreme Court held
in The Pocket Veto Case that the inter-session adjournment
of both Houses of the 69th Congress, which lasted for
approximately five months, had prevented the President from
returning with his objections a bill that had been presented
to him eight days before the adjournment. The Court thus
rejected the contention made by the petitioners and the
amicus curiae that the President's failure to return the
bill to the Congress, with his objections, within ten days
of its having been presented to him had resulted in its
having become a law without his signature.
The principal factors relied upon by the Court in
support of this holding were that (1) the word "House"
appearing in the second paragraph of Article I, Section VII,
of the Constitution requires that the House in which the bill
originated be "in session" on the tenth day following the
bill's presentation to the President, and that appointment
by that House of an officer or other agent authorized to
receive presidential messages during the adjournment therefore
would neither prevent the President from exercising a pocket
veto nor empower him to exercise a return veto after the
originating House had adjourned; (2) the return of a bill
disapproved by the President during an inter-session adjourn-
ment of the Congress would produce precisely the sort of
delay in the bill's final disposition, and uncertainty
concerning its status prior to Congress' having reconvened,
that the relevant constitutional provisions were designed to
-7-
prevent; and (3) the use of a pocket veto in the circumstances
presented by the case was consistent with "the practical
construction that has been given to [the relevant provisions]
by the President through a long course of years, in which the
Congress has acquiesced" (279 U.S. at 688-689)
If extended to its logical conclusion, the reasoning
employed by the Court in The Pocket Veto Case would have led
ultimately to the conclusion that whenever the originating
FORD
House is in recess at the end of the tenth day (excluding
Sundays) following presentation of a bill to the President,
GERALD
the withholding by the President of his signature would
LIBRARY
prevent the bill from becoming a law. This conclusion would
have followed without regard to the brevity of the recess,
the availability of reliable and efficient means of returning
the bill to the originating House with the President's objections,
or the willingness of the Congress as a whole promptly to recon-
sider the bill following its return. Thus, had the originating
House recessed simply for the afternoon of the tenth day
following the presentation of a particular bill, the logic of
the Court's reasoning in The Pocket Veto Case would have
required it to sustain the President's pocket veto.
The only alternative would be to make the veto's
effectiveness turn upon the length of the recess, but this
would require the Court arbitrarily to assign a limit to the
length of a recess during which a return veto could be required.
There is no warrant for such a procedure in the Constitution.
B. Wright V. United States. The petitioner in
Wright attempted to take advantage of the logic of the Court's
reasoning in The Pocket Veto Case, and contended that a
particular bill had become a law because (1) it had been
return vetoed by the President during a three-day intra-session
recess taken by the Senate, the originating House, and (2) no
pocket veto could have been exercised during that period since
Congress as a whole had not adjourned within the meaning of
the phrase "unless the Congress by the Adjournment prevent
[the bill's] return." In rejecting these contentions, the
Supreme Court pointed out that if a messenger may "present"
a bill to the President while the President is temporarily
absent from the White House and if the same bill may be
returned by messenger to the originating House with a statement
of the President's objections, the "plainest practical considera-
tions" suggest that the return veto may be received by "an
accredited agent" of the originating House (302 U.S. at 590)
The Court also noted that the dangers it had apprehended in
The Pocket Veto Case, stemming from delay in the final
disposition of a bill disapproved by the President and
undertainty concerning its status following the return veto,
are illusory when the originating House has taken "a mere
temporary recess" (id. at 595).
-8-
Although the Court in Wright did not expressly
disavow any part of the opinion in The Pocket Veto Case,
it did feel compelled to repeat Chief Justice Marshall's
admonition "that general expressions, in every opinion,
are to be taken in connection with the case in which those
expressions are used * (id. at 593) As Justice
Stone, who would have held that the President's failure to
sign the bill in question had prevented its becoming a law,
noted in his concurring opinion (which was joined by Justice
Brandeis), however, the Court's opinion in Wright reflected
a significantly different approach to the Pocket Veto Clause
than had been employed in The Pocket Veto Case (see id. at
FORD
598-609). Specifically, (1) the Court held in Wright that
the President's return veto had been effective despite the
fact that at the time of the return the originating House
GERALD
LIBRARY
was not "in session"; (2) it approved the return of a
vetoed bill to "an accredited agent" of the originating
House, even though that House had not specifically authorized
an agent to receive return vetoes during the recess and despite
the Court's statement in The Pocket Veto Case that "the
delivery of the bill [being returned] to [an] officer or
agent, even if authorized by Congress itself, would not comply
with the constitutional mandate" (279 U.S. at 684); and (3)
it refused to permit its decision to be influenced by past
executive or congressional practice, noting that "[t]he question
now raised has not been the subject of judicial decisions and
must be resolved not by past uncertainties, assumptions or
arguments, but by application of controlling principles of
constitutional interpretation" (302 U.S. at 597-598). Wright
undercut much of the rationale of The Pocket Veto Case and
left the law in some confusion.
C. Kennedy V. Sampson. A close reading of the
Supreme Court's opinions in The Pocket Veto Case and in Wright
reveals a rather dramatic shift of emphasis in the latter in
favor of essentially practical considerations. This shift
of emphasis figured significantly in the recent decision of
the Court of Appeals for the District of Columbia Circuit in
Kennedy V. Sampson, 511 F. 2d 430 (1974). The court of appeals
held in Kennedy that the Christmas recess taken by both Houses
of the 91st Congress had not prevented the President from
exercising return vetoes during that period and that the President's
failure to sign or to return veto a particular bill during the
recess had resulted in the bill's having become a law without
his signature. The court relied heavily upon the practical
considerations discussed in Wright in concluding that neither
the length of the Christmas recess (five days for the originating
House, as opposed to the three days involved in Wright), nor
the fact that (unlike the situation in Wright) both Houses of
the Congress were in recess on the tenth day (excluding Sundays)
following presentation of the bill to the President, had
empowered the President to exercise a pocket veto.
-9-
The court of appeals began its analysis "with the
premise that the pocket veto power is an exception to the
general rule that Congress may override presidential dis-
approval of proposed legislation" (511 F. 2d at 437). The
Pocket Veto Clause was thus viewed as "limited by the specific
purpose[s] it [was] designed to serve" (ibid.) ; the court
reasoned that the clause was to be construed in a manner that
frustrated neither of the "fundamental purposes" that had
been identified by the Supreme Court in Wright (id. at 438;
quoting from Wright, supra, 302 U.S. at 596)
(1) that the President shall have suitable
opportunity to consider the bills presented
to him, and (2) that the/Congress shall have
suitable opportunity to consider his objections
to bills and on such consideration to pass them
over his veto provided there are the requisite
votes. * * *
The only aspect of the rationale of the decision
in The Pocket Veto Clause not modified by the decision in
Wright concerned the constitutional significance of delay in
a bill's final disposition and public uncertainty regarding
its status prior to Congress' having reconvened. The court
of appeals in Kennedy brushed this consideration aside, noting
that, [p]lainly, intrasession adjournments of Congress have
virtually never occasioned interruptions of the magnitude
considered in the Pocket Veto Case" and that "[m]odern methods
of communication make it possible for the return of a dis-
approved bill to an appropriate officer of the originating
House to be accomplished as a matter of public record
accessible to every citizen" (511 F. 2d at 411). The court
concluded that use of the return veto during an intra-session
adjournment would create no intolerable public uncertainty
(ibid.; footnotes omitted):
[The] return of a bill during an intra-
session adjournment * * * generates no
more public uncertainty than does the
FORD LIBRARY & CERALD
return of a disapproved bill while
Congress is in actual session. The only
possible uncertainty about this situation
arises from the absence of a definitive ruling
as to whether an intrasession adjournment
"prevents" the return of a vetoed bill.
Hopefully, our present opinion eliminates
that ambiguity.
The court of appeals left little doubt in Kennedy
that it would hold that the President is not constitutionally
empowered to pocket veto proposed legislation during an
intra-session recess, whatever its length, so long as the
originating House had authorized an officer or other agent to
-10-
receive presidential messages during its absence. Since we
can not perceive any basis in constitutional text or policy
for distinguishing between an intra-session recess and an
inter-session adjournment, we believe that that court would
extend its holding to inter-session adjournments as well.
Although we were somewhat troubled by the breadth
of the court of appeals' opinion in Kennedy, for a variety
of reasons we determined not to petition for a writ of
certiorari in that case. First, the result in the case seemed
to us to be unquestionably correct. Consequently, were we to
have sought further review we would have been in the untenable
position of agreeing with the actual holding in the case and
with much of the court's reasoning and of asking the Supreme
FORD
Court merely to disapprove certain dicta. Second, it was
our understanding that, by the time the decision in the
Kennedy case was issued, executive policy with respect to
GERALD
LIBRARY
pocket and return vetoes either accorded with that decision
or would be modified accordingly. And, finally, we regarded
the case to be a particularly inappropriate vehicle for
presenting to the Supreme Court the question of congressional
standing to sue -- a question the Court obviously would have
had to reach prior to dealing with the merits of the case.
D. Pending Litigation. Although pocket vetoes have
been used many times during intra-session and inter-session
adjournments (see The Pocket Veto Case, 279 U.S. at 690-691;
Kennedy V. Sampson, 511 F. 2d at 442-445), there have been
very few cases challenging the constitutionality of the
practice. A partial explanation for this is that development
of the doctrine of congressional standing to sue is a relatively
recent phenomenon. We may expect litigation with congressmen
over every future use of the pocket veto during an adjournment
that is not final. Such cases are particularly poor vehicles
for litigating the question of congressional standing to sue.
The Supreme Court might be greatly tempted to hold that there
is standing in order to reach the veto issue and settle it.
The dispute concerning congressional standing will, in the
long run, pose a much more serious threat both to traditional
executive prerogative and to constitutional modes of goverance
than does acceptance of a narrowed scope for the pocket veto
power --- particularly since Congress can completely frustrate
the use of the pocket veto during other than final adjournments
by the simple expedient of delaying the presentation of bills
until their return dates coincide with times when the
originating House, or both Houses, are scheduled to be in
session.
We therefore believe that judgment on the merits
should be accepted in Kennedy V. Jones, Civil Action No.
74-194 (D. D.C.) -- a suit filed by Senator Kennedy and
involving two pocket vetoed bills. The first bill
(H.R. 10511) would have amended the Urban Mass Transportation
-11-
Act of 1964 to permit buses purchased pursuant to that Act
to be used to provide charter bus services. The bill was
pocket vetoed by President Nixon during the sine die
adjournment of the 1st Session of the 93d Congress, which
lasted 29 days. The second bill (H.R. 14225) would have
amended the Vocational Rehabilitation Act by extending the
authorization of appropriations for certain programs for the
handicapped for one year, making certain changes in federal
programs for blind persons and providing for the convening
of a White House Conference on Handicapped Individuals.
President Ford pocket vetoed the latter bill during a 32-day
intra-session recess taken by both Houses of the 93d Congress.
The Congress subsequently passed bills identical to those that
had been pocket vetoed, and they were ultimately signed into
law, so that nothing of any significance other than legal issues
is now at stake.
We therefore argued in Kennedy V. Jones that that
case is moot. That argument has failed. We must now accept
judgment and make the recommended public announcement on
behalf of the President or continue to litigate the case.
If we litigate, we are certain to lose both the standing issue
and the pocket veto issue in the court of appeals. Nothing
would be gained by litigating further unless we went to the
Supreme Court. Either we or Senator Kennedy may attempt to
bypass the court of appeals by petitioning the Court for
certiorari before judgment. The case could be argued as early
as next October. In any event, we believe we would run a very
substantial risk of losing the congressional standing issue
in the Supreme Court in this context and, if we did, would
almost certainly lose the pocket veto issue. Further litigation
risks much for very little prospect of gain.
FORD
's
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LIBRARY
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FORD
III. Possible Objections to Restricting
Use of the Pocket Veto to Final
Adjournments of the Congress
Several possible objections have been raised to the
recommendation that the President use pocket vetoes only upon
the final adjournment of a Congress if, during all other
recesses and adjournments, agents have been designated to
receive return vetoes. The more important of these objections
are analyzed here.
A. The decided cases support a distinction between
intra-session recesses and inter-session adjournments, making
it inadvisable for the President to, surrender the power to
pocket veto proposed legislation during inter-session adjourn-
ments.
We cannot perceive any basis in constitutional text
or policy for distinguishing between an intra-session recess and
an inter-session adjournment. The Court suggested in Wright that
the determining factor so far as the permissibility of a pocket
veto is concerned is the length of time the originating House is
scheduled to be absent from its chambers, the consequent delay in
the bill's final disposition, and public uncertainty concerning
the bill's status prior to Congress' having reconvened. In recent
years, however, inter-session adjournments have not consistently
or significantly exceeded intra-session recesses in length. In-
deed, the intra-session recess involved in Kennedy V. Jones was
slightly longer than the inter-session adjournment in that case,
which would make it particularly futile to urge the distinction
suggested.
B. Although the President might not be "prevented"
from returning a bill if only one House has temporarily recessed
or adjourned, the temporary absence of both Houses might be held
to prevent the bill's return.
The Supreme Court did state in Wright that, since the
House of Representatives (the non-originating House in that case)
had remained in session during the three-day recess taken by the
Senate, the "Congress" had not adjourned and thus prevented "by
their Adjournment" the return of the bill in question within the
period prescribed for that purpose. But that observation was
not accorded controlling weight by the Court since it simulta-
neously reserved the question whether a one-House recess longer
in duration than the recess involved in that case would "prevent"
the return of a vetoed bill. As Justice Stone pointed out in his
concurring opinion in Wright, moreover, "it was the adjournment
of the originating house with which the framers were concerned"
(302 U.S. at 606). See also Kennedy V. Sampson, supra, 511 F. 2d
at 440.
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The distinction between a recess by one House and a
recess by both is, in any event, of no particular significance if
the important factors are, as those who make this point assume,
the length of the recess and the unavailability of an originating
House in session to receive a return veto.
C. Since the Supreme Court's holding in Wright was
limited to disapproving a pocket veto exercised during a three-
day recess, and the Court did not in that case disavow the
discussion in The Pocket Veto Case concerning the constitutional
significance of the delay and uncertainty inhering in longer
recesses and adjournments, the President should continue to
pocket veto bills of which he disapproves during congressional
absences in excess of three days.
FORD i LIBRARY GENALD
We believe that this objection was answered persuasively
by the court of appeals in Kennedy V. Sampson. The recesses and
adjournments taken by the Congress during recent years have not
approached in length those taken at the time The Pocket Veto Case
was decided. Moreover, the Congress may delay the presentation
of an enrolled bill to the President until near the end of even
a very long recess or adjournment -- and then need not reconsider
the disapproved bill within any given period of time or, indeed,
at all.
Finally, until the Congress has reconsidered the dis-
approved bill, and either sustained or overridden the President's
veto, there will be public uncertainty concerning whether the
bill will become a law. That uncertainty is no greater than in
cases where Congress dawdles over the original passage of a bill
or over an attempt to override a return veto. Indeed, it is hard
to see what public uncertainty has to do with the issue at all.
In the case of a return veto during a recess or adjournment, the
public knows the bill has not become law and will not unless and
until Congress overrides. Why that is of any concern, much less
a factor of constitutional dimensions, remains a mystery. The
Supreme Court mentioned it once but the argument about uncertainty
will not withstand analysis. We therefore do not think the fact
that an accredited agent of the originating House may have to
hold a returned bill for a short period of time prior to the re-
convening of the originating House has any significance under the
Pocket Veto Clause.
D. Requiring the originating House specifically to
authorize an officer or other agent to receive return vetoes
during the temporary absence of that House from its chambers
has no predicate in the text of the relevant constitutional
provisions and does not distinguish earlier cases or practice.
The principal difficulty that must be faced in any
attempt presently to delimit the scope of the Pocket Veto Clause
is that the Supreme Court has complicated the inquiry with opinions
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GERALD
that are not completely reconcilable and, as a consequence, past
executive practice with respect to return and pocket vetoes has
not been entirely consistent. It is true that the Secretary of
the Senate, to whom the Court held in Wright an effective return
of the President's veto had been made during the Senate's three-
day absence, had not been specifically authorized by the Senate
to receive such vetoes. That fact obviously poses a problem in
using the specific designation of an agent as a limiting principle
for purposes of the Pocket Veto Clause. We also agree that, were
determination of the scope of the Pocket Veto Clause a matter of
first impression, the designation of an agent would be unnecessary
if officers of the originating House were available.
We nevertheless believe that the chances are quite good
that the Supreme Court would endorse the specific designation of
an officer or other agent to receive return vetoes as a means of
distinguishing past executive practice (and avoiding the resur-
rection of bills long since regarded as having been effectively
pocket vetoed) and of providing guidance for the future. Clearly,
a case-by-case determination of the effectiveness of pocket and
return vetoes -- depending upon the length of the particular
recess or adjournment --- would be entirely unsatisfactory. An
approach to the Pocket Veto Clause requiring the Court to endorse
a recess or adjournment of a specific length as permitting the
President to return veto a bill would be both inconsistent with
the Court's normal practice and exceedingly difficult to ration-
alize. Specific designation of an agent by the originating House
at least evidences an effort by that House to keep open lines of
communication with the President during temporary absences, and
provides formal assurance that the Congress as a whole will receive
formal notification upon its return of decisions made by the
President with respect to specific legislation.
E. A determination by the President that he will return
rather than pocket veto bills presented to him during temporary
recesses and adjournments may result in the resurrection of bills
pocket vetoed in the past.
Since we believe that the Supreme Court would refuse to
recognize the effectiveness of a pocket veto exercised during a
temporary recess or adjournment no longer in duration than those
that have become common in recent years, so long as an officer or
agent had been authorized by the originating House to receive
presidential messages during that period, the danger that bills
pocket vetoed in the past may suddenly spring to life confronts
us regardless of present or future executive policy with respect
to pocket vetoes. An attempt should be made promptly to identify
bills that may be affected by various alternative theories of the
Pocket Veto Clause, although we believe that the Supreme Court
-15-
would view sympathetically an argument that any future decision
by it concerning the scope of the Pocket Veto Clause should be
applied prospectively only.
F. A construction of the Pocket Veto Clause prohibit-
ing the President from pocket vetoing bills during a temporary
recess or adjournment creates a danger that the circumstances
attending the President's decision to return veto a particular
bill will have changed dramatically by the time the Congress
has reconvened.
Since the Constitution does not place any limits upon
the Congress' power to delay the presentation of an enrolled
bill to the President, the danger that circumstances may change
between the time of the President's consideration of a bill and
Congress' reconsideration of that bill is unavoidable.
G. It is unrealistic to believe that the President
can adopt the position that pocket vetoes are impermissible
except following a final adjournment of the Congress without
destroying the ability of his successors to assert the contrary.
We agree that a practice of using return vetoes instead
of pocket vetoes will make it more difficult for a later President
to use pocket vetoes. If the use of return vetoes is the sounder
constitutional practice, however, that is not an objection but a
proper result. The significance of this consideration is, in any
case, substantially undermined by the very probable outcome of a
Supreme Court test of the scope of the Pocket Veto Clause.
FORD LIBRARY & GERALD
Notice: This opinion is subject to formal revision before publication
in the Federal Reporter or U.S. App. D.C. Reports. Users are requested
to notify the Clerk of any formal errors in order that corrections may be
made before the bound volumes go to press.
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 73-2121
EDWARD M. KENNEDY
V.
ARTHUR F. SAMPSON, Acting Administrator,
General Services Administration, et al., APPELLANTS
No. 73-2122
EDWARD M. KENNEDY
GERALD FORD LIBRARY
V.
ARTHUR F. SAMPSON, Acting Administrator,
General Services Administration, et al., APPELLANTS
Appeals from the United States District Court
for the District of Columbia
Decided August 14, 1974
2
James C. Hair, Jr., Attorney, Department of Justice,
with whom Irving Jaffe, Acting Assistant Attorney Gen-
eral, Earl J. Silbert, United States Attorney and Robert
E. Kopp, Attorney, Department of Justice, were on the
brief for appellants. Morton Hollander, Attorney, De-
partment of Justice, also entered an appearance for ap-
R.FORD
pellants.
Edward M. Kennedy, appellee, pro se.
GERALD
UBRAR
Before: BAZELON, Chief Judge, FAHY, Senior Circuit
Judge and TAMM, Circuit Judge.
TAMM, Circuit Judge, delivered the opinion for the
court in which BAZELON, Chief Judge, and FAHY, Senior
Circuit Judge joined.
FAHY, Senior Circuit Judge, filed a concurring opinion
in which BAZELON, Chief Judge, joined.
TAMM, Circuit Judge: Appellee, a United States Sena-
tor, filed suit against the Administrator of the General
Services Administration and the Chief of White House
Records seeking a declaration that the Family Practice
of Medicine Act (hereinafter, S. 3418) 1 became law on
December 25, 1970, and an order requiring the appel-
lants to publish the Act as a validly enacted law.2 S.
3418 was passed by overwhelming majorities in both the
House and Senate in the Fall of 1970.³ Appellee was
1 S. 3418, 91st Cong., 2d Sess. (1970).
2 Appellee contends that appellant Jones is required to de-
liver and appellant Sampson to publish in slip form and in
Statutes at Large all newly enacted laws of the United States.
Kennedy V. Sampson, C.A. No. 1583-72, Complaint, 11 4, 5
(D.D.C., filed Aug. 9, 1972), citing 1 U.S.C. §§ 106a, 112, 113
(1970). This question was not decided by the district court.
3 Passed in the Senate September 14, 1970 by a vote of 64-1,
116 CONG. REC. 31508 (1970) ; in the House of Representa-
tives on December 1, 1970 by a vote of 346-2, id. at 39379. The
3
among those Senators who voted in favor of the bill
which was presented to the President on December 14,
1970.4 On December 22 both Houses of Congress ad-
journed for the Christmas holidays, the Senate until De-
cember 28 and the House until December 29.5 Before
adjourning, the Senate authorized the Secretary of the
Senate to receive messages from the President during
the adjournment. On December 24, the President issued
a memorandum of disapproval announcing that he would
withhold his signature from S. 3418. The President took
no further action with respect to the bill. Appellants
maintain that this series of events resulted in a "pocket
veto" under article I, section 7 of the United States
Constitution. Appellee, relying upon the same provision,
contends that the bill became law without the President's
signature at the expiration of the ten-day period fol-
lowing its presentation to him.
Upon cross motions for summary judgment, the district
court granted judgment in favor of appellee. The order
of the district court declares that S. 3418 became a law
of the United States on December 25, 1970 and that "de-
fendants are under a ministerial, nondiscretionary duty
to publish said law
8 Although the district court
has retained jurisdiction for the purpose of adjudicating
Senate House Conference Report, H.R. REP. No. 91-1668,
91st Cong., 2d Sess., was agreed to by the House on December
8, 116 CONG. REC. 40289-92 (1970), and by the Senate on
December 10, id. at 40867.
4 116 CONG. REC. 41289 (1970).
5 S. Con. Res. 87, 91st Cong., 2d Sess., id. at 43250.
6 116 CONG. REC. 43221 (1970).
7 6 PRESIDENTIAL DOCUMENTS 1726-27 (December 28, 1970).
8 Kennedy V. Sampson, 364 F. Supp. 1075, 1087 (D.D.C.
1973).
4
appellee's request for injunctive relief in the nature of a
mandamus, further action has been postponed pending
this appeal.9
Two questions are presented for review: (1) does ap-
pellee have standing to maintain this suit; and (2) did
FORD
S. 3418 become a law? We conclude that both questions
must be answered in the affirmative.
GERALD
LIBRARY
I.
The requirement of standing derives from the limita-
tion upon judicial power expressed in the "case" or "con-
troversy" formula of article III of the Constitution.
The concept was recently treated by the Supreme Court
in Sierra Club v. Morton, 405 U.S. 727, 731-32 (1972) :
Whether a party has a sufficient stake in an other-
wise justiciable controversy to obtain judicial reso-
lution of that controversy is what has traditionally
been referred to as the question of standing to sue.
Where the party does not rely on any specific stat-
ute authorizing invocation of the judicial process,
the question of standing depends upon whether the
party has alleged such a "personal stake in the out-
come of the controversy," Baker v. Carr, 369 U.S.
186, 204, as to ensure that "the dispute sought to
be adjudicated will be presented in an adversary
context and in a form historically viewed as capa-
ble of judicial resolution." Flast v. Cohen, 392 U.S.
83, 101.
Although he has not been authorized to prosecute this
suit on behalf of the Senate or the Congress, appellee
offers several alternative theories of standing.10 We
9 Pursuant to Rule 54 (b), FED. R. CIV. P. the district court
found that there was no just reason for delay and directed
entry of a final order granting appellee's request for declara-
tory relief. Kennedy V. Sampson, supra note 2, Order dated
September 24, 1973.
10 Appellee claims standing in his capacity as a citizen, as a
taxpayer, and as a member of the United States Senate. The
5
agree with the district court that appellee has standing
to maintain this suit in his capacity as an individual
United States Senator who voted in favor of S. 3418.
This conclusion follows from any of the traditional meth-
ods of evaluating the standing of a party to sue.
One approach to the question is to inquire whether a
"logical nexus" exists between the status asserted by a
litigant and the claim sought to be adjudicated. Flast v.
Cohen, 392 U.S. 83, 102 (1968). Examination of ap-
pellee's complaint reveals that such a nexus is present
in this case. While the complaint is literally addressed
LIBRARY
to the ministerial duties of certain officials, the legal
issue turns on the validity of executive action which
purports to have disapproved an Act of Congress by
means of a constitutional procedure which does not permit
Congress to override the disapproval. If appellants' ar-
guments are accepted, then appellee's vote in favor of the
bill in question has been nullified and appellee has no
right to demand or participate in a vote to override the
President's veto. Conversely, if appellee's interpretation
of the veto clause is correct, then the bill became law
without the President's signature. In short, disposition
of the substantive issue will determine the effectiveness
vel non of appellee's actions as a legislator with respect
to the legislation in question. This demonstrates a re-
lationship between appleee and his claim which is not
only "logical" but real, a relationship which assures
that the issues have been litigated with the vigor and
thoroughness necessary to assist the court in rendering
an informed judgment.
A somewhat different analysis of standing has been
employed with respect to parties who challenge adminis-
trative action. In Association of Data Processing Service
district court agreed with the latter contention and did not
reach the alternative arguments. Kennedy V. Sampson, supra
note 8 at 1077-79.
6
Organizations, Inc. v. Camp, 397 U.S. 150 (1970) the
Supreme Court framed the standing issue as follows: (1)
does the plaintiff allege that the challenged action has
caused him "injury in fact, economic or otherwise;" (2)
is the interest sought to be protected "arguably within the
zone of interests to be protected or regulated by the
statute or constitutional guarantee in question." Id. at
152-53. Appellee's pleading satisfies both inquiries. The
complaint alleges an injury to him in his capacity as a
United States Senator:
The acts of the defendants have injured the plain-
tiff as a United States Senator by denying him the
effectiveness of his vote as a member of the United
GE
States Senate. The plaintiff
was among 64
Senators voting in favor of S. 3418
11
Appellee's asserted interest plainly falls among those
contemplated by the constitutional provision upon which
he relies. That provision, article I, section 7, is one of
several in the Constitution which implement the "separa-
tion of powers" doctrine. Taken together, these provisions
define the prerogatives of each governmental branch in a
manner which prevents overreaching by any one of them.
The provision under discussion allocates to the executive
and legislative branches their respective roles in the law-
making process. When either branch perceives an intru-
sion upon its legislative power by the other, this clause
is appropriately invoked. The gist of appellee's complaint
is that such an intrusion has occurred as a result of the
President's misinterpretation of this clause and that a
consequence of this intrusion is the nullification of appel-
lee's vote in favor of the bill in question; hence, the com-
plaint alleges injury to an interest of appellee as a mem-
ber of the legislative branch of the government, and inter-
est among those protected by article I, section 7. Appel-
lants insist that only the interests of the Congress or one
11 Kennedy V. Sampson, supra note 2, Complaint, 11 15.
7
of its Houses as a body are protected by this provision.
Our conclusion with respect to appellee's standing finds
support in Coleman v. Miller, 307 U.S. 433 (1939), which
held, inter alia, that twenty state senators who had voted
against ratification of a constitutional amendment had
standing to challenge the legality of a tie-breaking vote in
favor of ratification which was cast by the Lieutenant
Governor, the presiding officer of the Senate of Kansas.
The Court concluded that the interest of the legislators in
protecting the effectiveness of their votes conferred stand-
ing to maintain the suit:
Here, the plaintiffs include twenty senators, whose
votes against ratification have been overridden and
virtually held for naught although if they are right
in their contentions their votes would have been
sufficient to defeat ratification. We think that these
senators have a plain, direct and adequate interest
in maintaining the effectiveness of their votes.
Id. at 438. Appellants correctly point out that the votes
of the twenty plaintiffs in Coleman had peculiar legal
significance as a bloc, i.e.: these votes were sufficient to
prevent ratification absent the challenged vote of the
Lieutenant Governor. Appellants read Coleman as holding
that the plaintiff legislators had standing only as a group
for the purpose of protecting the collective effectiveness
of their votes. In a like vein, appellants contend that
appellee's vote in favor of S. 3418 has no legal signifi-
cance independent of the other votes in favor of the bill.
Any injury to him occasioned by the President's action, it
is argued, is "derivative" in nature.¹² In appellants' view,
only the Senate or the Congress has sustained the "direct"
injury necessary to confer standing (assuming that the
veto of S. 3418 was invalid) 13
12 Appellants' Br. at 24-27; Appellants' Reply Br. at 2-3.
13 Appellants' Reply Br. at 2. Appellants suggest that the
Senate might have standing because it was "improperly de-
8
The Coleman opinion neither confirms nor rejects ap-
pellants' interpretation. It does not express reliance upon
the fact that all nay-voters had joined as plaintiffs in the
action, nor does it contain any hint as to whether one of
the plaintiffs might have maintained the suit alone. Al-
though references to the parties and their votes are, quite
naturally, in the plural form, the opinion does not disclose
whether the Court was considering them collectively or
severally. In light of the purpose of the standing require-
ment, however, we think the better reasoned view of both
Coleman and the present case is that an individual legis-
lator has standing to protect the effectiveness of his vote
FORD
with or without the concurrence of other members of the
majority.
The policy underlying the doctrine of standing is identi-
GERALD
IBRARY
fied in the following passage from Baker v. Carr, 369
U.S. 186, 204 (1962) :
Have the appellants alleged such a personal stake
in the outcome of the controversy as to assure that
concrete adverseness which sharpens the presenta-
tion of issues upon which the court SO largely de-
pends for the illumination of difficult constitutional
questions? This is the gist of the question of stand-
ing.
Another discussion describes the purpose of the standing
doctrine as follows:
prived of the initial opportunity to override the veto
Id. Appellee makes a similar argument in favor of his own
individual standing. Appellee's Br. at 13. Both parties mis-
conceive the issue. The only possible effects of the President's
action with respect to S. 3418 are that the bill became law, in
which case there is no need to override, or it did not become
law because Congress prevented its return, in which case
there is no right to override. See Hearings on the Constitu-
tionality of the President's "Pocket Veto" Power Before the
Subcomm. on Separation of Powers of the Senate Comm. on
the Judiciary, 92nd Cong., 1st Sess. 4-5 (1971).
9
Under such circumstances, we feel confident that
the questions will be framed with the necessary
specificity, that the issues will be contested with the
necessary adverseness and that the litigation will be
pursued with the necessary vigor to assure that the
constitutional challenge will be made in a form tra-
ditionally thought to be capable of judicial resolu-
tion.
Flast v. Cohen, supra at 106. Appellee's interest in the
present controversy provides the same assurance that he
is an appropriate advocate.
Appellants' argument to the contrary is based upon a
distinction which is more formal than substantive. While
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conceding that Congress as a whole (or even one of its
Houses) has standing to challenge the President's pur-
GERALD
IBRAR
ported use of the pocket veto,¹⁴ appellants insist that an
individual member of Congress does not, even if he voted
for the bill in controversy. The interest of the Congress in
preserving its role in the law-making process is said to be
"direct" while that of appellee is labelled "indirect or de-
rivative."
15 Appellants base this distinction upon the self-
evident proposition that appellee is not the Congress:
As an individual senator appellee can at best be
said to have sustained only indirect injury as the
result of the pocket veto, for his vote for S. 3418 is
in no sense the legal or political equivalent of the
passage of the bill by the Congress.
16
The italicized observation is undoubtedly correct but it
does not help appellants' argument. The prerequisite to
standing is that a party be "among the injured," in the
words of Sierra Club, not that he be the most grieviously
or most directly injured. We think that appellee is
"among the injured" in this case.
14 Appellants' Reply Br. at 2.
15 Id. at 2-3.
16 Id. (emphasis added).
10
The subject matter at stake in this litigation is legisla-
tive power. The court is presented with conflicting views
of the pocket veto power, one which is expansive, and
another which is restrictive. Over the long term, appel-
lants' broad view of the pocket veto power threatens a
diminution of congressional influence in the legislative
process.1 It seems to this court axiomatic that, to the
extent that Congress' role in the government is thus
diminished, SO too must be the individual roles of each of
its members. Put another way, the influence of any one
17 Appellants dispute the contention that a broad construc-
tion of the pocket veto clause can affect the legislative balance
of power. Two defenses are suggested whereby Congress can
maintain legislative supremacy: (1) if disapproval is antici-
pated, Congress may delay the presentation of a bill until
GERALD
LIBRARY
after the recess in order to preserve its right to override; (2)
Congress may reenact a pocket-vetoed bill and present it to
the President a second time. Appellants' Br. at 44-45. While
both of these procedures might be effective, they would not
change the fact that the pocket veto power will have been used
as an obstacle-however temporary-to the implementation
of the will of Congress. Moreover, such delays may for prac-
tical purposes become permanent. As appellee points out in
his brief at 54:
It is no answer to say that if Congress wishes, it can
simply pass a pocket-vetoed bill again and present it to
the President at a time when the pocket veto cannot be
used. At best, the legislative route is arduous and time-
consuming, involving numerous subcommittee, full com-
mittee, and other proceedings in both the Senate and
the House. At worst, if delay has dimmed the constella-
tion of public and private interests that facilitated the
original passage of the bill, if the unique alchemy that
enabled the legislative process to function successfully
the previous time around has disappeared, the result may
be that the bill cannot be passed at all.
It is significant, too, that the utilization of a broadly con-
strued pocket veto power is likely to grow with the increasing
frequency of brief, intrasession adjournments. See infra note
40 and accompanying text.
11
legislator upon the political process is in great measure
dependent upon the stature of the governmental branch of
which he is a member.
In a sense, therefore, the contention that appellee's
interest in the pocket veto controversy is "derivative" is
correct. It is derivative, but it is nonetheless substantial.
When asserted in the context of a particular dispute about
specific legislation, such an interest may be sufficient to
confer standing. Appellee's stake in this litigation is a
quantum of his official influence upon the legislative proc-
ess. To be sure, that influence can never be "the legal or
GERALD LIBRARY
political equivalent of the passage" of a bill, for only
Congress as a body has that authority. Nevertheless, the
office of United States Senator does confer a participation
in the power of the Congress which is exercised by a Sen-
ator when he votes for or against proposed legislation.
In the present case, appellee has alleged that conduct by
officials of the executive branch amounted to an illegal
nullification not only of Congress' exercise of its power,
but also of appellee's exercise of his power. In the lan-
guage of the Coleman opinion, appellee's object in this
lawsuit is to vindicate the effectiveness of his vote. No
more essential interest could be asserted by a legislator.
We are satisfied, therefore, that the purposes of the
standing doctrine are fully served in this litigation.
II.
Article I, section 7, paragraph 2 of the United States
Constitution prescribes the manner in which laws of the
United States are enacted:
Every Bill which shall have passed the House of
Representatives and the Senate, shall, before it be-
come 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, who shall
enter the Objections at large on their Journal, and
12
proceed to reconsider it. If after such Reconsidera-
tion two thirds of that House shall agree to pass the
Bill, it shall be sent, together with the Objections,
to the other House, by which it shall likewise be
reconsidered, and if approved by two thirds of that
House, it shall become a Law. But in all such Cases
the Votes of both Houses shall be determined by
yeas and Nays, and the Names of the Persons vot-
ing for and against the Bill shall be entered on the
Journal of each House respectively. If any Bill shall
FO
not be returned by the President within ten Days
(Sundays excepted) after it shall have been pre-
sented to him, the Same shall be a Law, in like Man-
LIBRARY
ner as if he had signed it, unless the Congress by
their Adjournment prevent its Return, in which
Case it shall not be a Law. (Emphasis added.)
At issue in this case is whether the Christmas adjourn-
ment of 1970 was one which "prevented" the return of
S. 3418 by the President. If so, then the President's fail-
ure to approve the bill within ten days of its presentation
to him constituted a pocket veto. If the adjournment did
not prevent the return of S. 3418, then the bill became
law without the President's signature. Our study of the
constitutional text itself, its history and previous judicial
interpretations of it convinces us that an intrasession
adjournment of Congress does not prevent the President
from returning a bill which he disapproves SO long as
appropriate arrangements are made for the receipt of
presidential messages during the adjournment. Since
the adjournment in question falls into this category, we
affirm the district court's declaration that S. 3418 became
law on December 25, 1970.
Our analysis begins with the premise that the pocket
veto power is an exception to the general rule that Con-
gress may override presidential disapproval of proposed
legislation. Rejection of an absolute presidential veto is
explicit both in the proceedings of the Constitutional Con-
13
vention 18 and in contemporaneous commentary. Alexan-
der Hamilton, himself an advocate of the absolute veto
during the Convention,19 later took pains to distinguish
the presidential veto power from that of the King of
England:
The President of the United States is to have
power to return a bill, which shall have passed the
two branches of the Legislature, for re-considera-
tion; but the bill SO returned is to become a law, if
upon that re-consideration it be approved by two
FORD
thirds of both houses. The King of Great Britain,
on his part, has an absolute negative upon the acts
of the two houses of Parliament. The disuse of that
power for a considerable time past, does not affect
GERALD
the reality of its existence; and is to be ascribed
wholly to the crown's having found the means of
substituting influence to authority, or the art of
gaining a majority in one or the other of the two
houses, to the necessity of exerting a prerogative
which could seldom be exerted without hazarding
some degree of national agitation. The qualified
negative of the President differs widely from this
absolute negative of the British sovereign
The Federalist No. 69, at 463-64 (J. Cooke ed. 1961)
(A. Hamilton). Since it operates as an "absolute nega-
tive", the pocket veto power is a departure from the cen-
tral scheme of the Constitution. As such, it must be lim-
ited by the specific purpose it is intended to serve, a
purpose explained in the following passage from Story's
Commentaries:
18 1 M. FARRAND, THE RECORDS OF THE FEDERAL CONVEN-
TION OF 1787, at 104, 106 (Rev. ed. 1937) [hereinafter cited
as M. FARRAND]; 2 M. FARRAND at 71, 200, 301, 582, 585 (the
last page recording the opinion of one delegate that even a
provision requiring a three-fourths vote to override "puts
too much in the power of the President").
19 1 M. FARRAND at 192, 300. See also 3 M. FARRAND at 624,
627.
14
But the President might effectually defeat the
wholesome restraint [i.e. congressional override],
thus intended, upon his qualified negative, if he
might silently decline to act after a bill was pre-
sented to him for approval or rejection. The Con-
stitution, therefore, has wisely provided, that, "if
any bill shall not be returned by the President with-
in ten days (Sundays excepted) after it shall have
been presented to him, it shall be a law, in like
manner as if he had signed it." But if this clause
stood alone, Congress might, in like manner, defeat
the due exercise of his qualified negative by a ter-
FORD
mination of the session, which would render it im-
possible for the President to return the bill. It is
therefore added, "unless the Congress, by their ad-
GERALD
journment, prevent its return, in which case it shall
not be a law." 20
The pocket veto power is one component of a constitu-
tional mechanism designed to enforce respect on the part
of each of the law-making branches of the government for
the legislative authority of the other. This understanding
of the purpose of the clause has led the Supreme Court to
adopt a rule of construction which governs in this case:
The constitutional provisions [i.e., article I, sec-
tion 7, paragraph 2] have two fundamental pur-
poses; (1) that the President shall have suitable
opportunity to consider the bills presented to him,
and (2) that the Congress shall have suitable op-
portunity to consider his objections to bills and on
such consideration to pass them over his veto pro-
vided there are the requisite votes. Edwards v.
United States, 286 U.S. 482, 486. We should not
adopt a construction which would frustrate either
of these purposes.
Wright v. United States, 302 U.S. 583, 596 (1938).
Where possible, then, the pocket veto clause should be
construed in a manner which preserves both purposes.
Since a pocket veto always has the effect of frustrating
20 1 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE
UNITED STATES § 891 (5th ed. 1905) (footnotes omitted).
15
Congress' right to reconsider a vetoed bill,21 the preferred
construction of the clause is that return of a bill was not
"prevented" by an adjournment. Only two decisions of
the Supreme Court have addressed the question of whether
an adjournment prevented the return of a bill. Appellant
relies upon the first of these and seeks to distinguish the
later decision from the present case.
The decision relied upon by appellant is The Pocket
Veto Case, 279 U.S. 655 (1929), which held that the
intersession adjournment of the 69th Congress prevented
FORD
the return of a bill which had been presented to the Presi-
dent eight days (excluding Sunday) before the adjourn-
ment of the first session. The opinion states two reasons
for the holding: (1) the word "House" in the return veto
clause means "House in session" and does not permit re-
turn of a bill to an officer or agent of the originating
House during an adjournment; (2) return of a bill dur-
ing an intersession adjournment would result in a long
delay in the final disposition of the bill attended by pub-
lic uncertainty as to its status. Id. at 682-84.22 A signifi-
cant exception to this holding was established in the
Supreme Court's only other pocket veto decision, Wright
v. United States, supra at 589-90.23 Addressing the first
21 Where a pocket veto is appropriate there is, by definition,
no congressional right to override. See supra note 13.
22 The Court also cited "the practical construction that has
been given to [the clause] by the Presidents through a long
course of years, in which Congress has acquiesced." 279 U.S.
at 688-89. A similar argument was made in this case and
is treated below.
23 In that case, a bill was return-vetoed by the President
during a brief recess of the Senate, the originating House. The
petitioner, who relied upon the bill as the jurisdictional basis
for his unsuccessful claim in the Court of Claims, argued that
no valid return had been effected. It was apparently his
simultaneous contention that no pocket veto was possible
because "Congress" as a whole had not adjourned within the
16
part of the Pocket Veto Case rationale, the Court held
that the return of a bill may, in certain instances, be
accomplished by delivery to an appropriate agent of the
originating House:
Nor was there any practical difficulty in making
the return of the bill during the recess. The organ-
ization of the Senate continued and was intact. The
FURD
Secretary of the Senate was functioning and was
able to receive, and did receive, the bill. Under the
constitutional provision [article I, section 5, para-
GERALD
graph 4] the Senate was required to reconvene in
not more than three days and thus would be able
to act with reasonable promptitude upon the Presi-
dent's objections. There is no greater difficulty in
returning a bill to one of the two Houses when it
is in recess during the session of Congress than in
presenting a bill to the President by sending it to the
White House in his temporary absence. Such a pres-
entation is familiar practice. The bill is sent by a
messenger and is received by the President. It is
returned by a messenger, and why may it not be
received by the accredited agent as the legislative
body? To say that the President cannot return a
bill when the House in which it originated is in re-
cess during the session of Congress, and thus afford
an opportunity for the passing of the bill over the
President's objections, is to ignore the plainest prac-
tical considerations and by implying a requirement
of an artificial formality to erect a barrier to the
exercise of a constitutional right.
Id. at 589-90. The Court then discussed the dangers it
had foreseen at the time of its earlier decision:
However real these dangers may be when Congress
has adjourned and the members of its Houses have
dispersed at the end of a session-the situation with
which the Court was dealing-they appear to be
meaning of the phrase "unless the Congress by their Adjourn-
ment prevent its return." See 302 U.S. at 597. See also Com-
ment, The Veto of S. 3418: More Congressional Power in the
President's Pocket?, 22 CATHOLIC L. REV., 385, 391 (1973).
17
illusory when there is a mere temporary recess.
Each House for its convenience, and during its ses-
sion and the session of Congress, may take, and fre-
quently does take, a brief recess limited, as we have
seen, in the absence of the consent of the other House,
to a period of three days. In such case there
is no withholding of the bill from appropriate legis-
lative record for weeks or perhaps months, no keep-
FORD
ing of the bill in a state of suspended animation
with no certain knowledge on the part of the public
whether it was seasonably delivered, no causing of
GERALD
any undue delay in its reconsideration. When there
is nothing but such a temporary recess the organi-
zation of the House and its appropriate officers con-
tinue to function without interruption, the bill is
properly safeguarded for a very limited time and
is promptly reported and may be reconsidered im-
mediately after the short recess is over. The pros-
pect that in such a case the public may not be
promptly and properly informed of the return of
the bill with the President's objections, or that the
bill will not be properly safeguarded or duly record-
ed upon the journal of the House, or that it will
not be subject to reasonably prompt action by the
House, is we think wholly chimerical. If we regard
the manifest realities of the situation, we cannot
fail to see that a brief recess by one House, such
as is permitted by the Constitution without the con-
sent of the other House, during the session of Con-
gress, does not constitute such an interruption of
the session of the House as to give rise to the dan-
gers which, as the Court apprehended, might de-
velop after the Congress has adjourned.
Id. at 595-96. Appellants emphasize two factual distinc-
tions between Wright and the present case: (1) Wright
involved an adjournment of only three days, a shorter
period than the five-day adjournment at issue in this case;
(2) only the Senate had adjourned in the former case
whereas both Houses were in recess at the time S. 3418
was disapproved. These distinctions fail to overcome the
logic and reasoning of the Wright decision.
18
The five-day recess in this case was only two days
longer than that considered in Wright. Moreover, the
most significant portion of the recess, that which ex-
tended beyond the ten-day period for return of a bill, was
only one day longer than that which occurred in Wright,2⁴
and was actually within the maximum delay explicitly
approved in Wright. As in the former case, the Senate
continued in existence during the Christmas recess of
RD
1970 and the Secretary of the Senate was available to
receive messages from the President during the adjourn-
GERALD
LIBRARY
ment. 26 There was no danger that the bill could not be
reconsidered "with reasonable promptitude" should it be
returned by the President during the adjournment. For
24 The Senate's 1970 Christmas recess extended from Tues-
day, December 22 to Monday, December 28-a period of five
days (excluding Sunday). See supra note 5. The Wright case
involved an adjournment by the Senate of less than three days
from Monday, May 4, 1936 until Thursday, May 7, 1936. 302
U.S. at 585. The last day for return of S. 3418 was December
25, 1970, two days (excluding Sunday) before the end of the
Senate recess. In Wright, the tenth day fell on May 6, 1936,
the day before the Senate's return. 302 U.S. at 592.
25 Even a narrow construction of Wright permits return of
a bill during a recess of the originating House which began at
the end of the ninth day of the President's ten-day period for
consideration. In such a case, Congress' reconsideration of
the bill would be delayed at least two days. See Kennedy V.
Sampson, supra note 8 at 1086.
26 Unlike the Wright case, the Secretary of the Senate was
expressly authorized to receive messages from the President
during the 1970 Christmas adjournment. See supra note 6.
27 The Wright opinion emphasizes that a brief recess does
not occasion long delay of Congress' reconsideration of a bill
returned during the recess-a problem envisioned in the case
of the months-long intersession adjournment considered in
the Pocket Veto Case. As demonstrated above, the Christmas
recess of 1970 comes within the reasoning of Wright on this
point. We do not thereby intimate, however, that prompt re-
consideration of a returned bill is constitutionally required
19
these reasons, the mere fact that the Senate was not in
session to physically receive the President's objections does
not require the conclusion that the Congress had, by its
adjournment, prevented the return of S. 3418.
The fact that the House of Representatives had not
adjourned in the Wright case is also a distinction without
a difference.28 Assuming that the conclusion of the fore-
FORD
going paragraph is correct, it is difficult to see how the
presence or absence of the non-originating House at the
time of the return could affect our decision. To hold that
a return veto is possible while the originating House alone
is in brief recess but not when both Houses are in recess
would embrace ritual at the expense of logic.2ˢ
As the foregoing discussion demonstrates, the present
case falls within the exception-or, at least, within a
logical extension of the exception-to the Pocket Veto
in order to override a return veto. The Constitution itself sets
no time limit upon Congress' right to override a presidential
veto. By the same token, as we indicate in our alternative
discussion, infra, the mere duration of an intrasession ad-
journment will not "prevent" the return of a bill absent some
constitutional evil such as the danger of public uncertainty
perceived in the Pocket Veto Case.
28 The House of Representatives was in recess from Decem-
ber 22, 1970 until December 29, 1970, the day after the
Senate's return. See supra note 5.
29 See Note, The Presidential Veto Power: A Shallow
Pocket, 70 MICH. L. REV. 148, 161-62 (1971). The Wright
opinion does state at the outset that the return of the dis-
approved bill was not prevented because "Congress" (i.e.
both Houses) had not adjourned. This clearly was not the
basis for its decision, however, since the Court expressly re-
served the question of whether a more extended one-House
adjournment might "prevent" the return of a vetoed bill. 302
U.S. at 598. The Court relied, rather, upon the reasoning
which we have outlined above; the brevity of the recess and
the availability of efficient methods for delivery of the Presi-
dent's veto message.
20
Case established in Wright. Even if Wright were not
applicable, however, appellants' reliance upon the Pocket
Veto Case would be misplaced. The modern practice of
Congress with respect to intrasession adjournments cre-
ates neither of the hazards-long delay and public uncer-
FOR
tainty-perceived in the Pocket Veto Case.
2
First of all, intrasession adjournments are much shorter
than the intersession adjournment considered in the
Pocket Veto Case. At the time of that decision, inter-
session adjournments of five or six months were still
common. 30 By contrast, only four intrasession adjourn-
ments in the history of the Congress have exceeded sixty
days in duration. Of these, only two occurred in this
century-a sixty-seven day recess in 1943 and a sixty-
four day recess in 1950. 31 Aside from these four, there
have been one hundred twenty-nine intrasession adjourn-
ments of more than three days as of June, 1974: two of
them for periods of fifty to sixty days; seven for periods
of thirty to forty days; and two for periods of twenty to
thirty days. The remaining one hundred eighteen were
for periods of less than twenty days.32 Until 1932, prac-
tically every one of these adjournments was a Christmas
holiday recess.³³ In 1933 the twentieth amendment took
effect, setting January 3rd as the customary date for
commencement of each session of Congress. As a conse-
30 The intersession adjournments of the 68th, 69th and 70th
Congresses lasted six months respectively. 1974 CONGRES-
SIONAL DIRECTORY 396. These Congresses covered the period
from December, 1923 to March, 1929. The Pocket Veto Case
was decided in 1929.
31 The other two adjournments occurred in 1867 (94 days
and 123 days). See Appendix herein.
32 See Appendix.
33 Id. The exceptions are numbered 9, 12, 13, 61 and 70
in Appendix.
21
quence, the pattern of intrasession recesses was altered
somewhat over the ensuing years. In the last decade,
however, a consistent pattern of intrasession adjourn-
ments has again developed. Typically, there are several
recesses of approximately five days for various holidays
and a summer recess (or recesses) lasting about one
month.34
Plainly, intrasession adjournments of Congress have
virtually never occasioned interruptions of the magnitude
considered in the Pocket Veto Case.³ More importantly,
FORD
is
return of a bill during an intrasession adjournment, what-
ever its length, can no longer cause the public uncertainty
envisioned in the Pocket Veto Case. Modern methods of
GERALD
communication make it possible for the return of a disap-
proved bill to an appropriate officer of the originating
House to be accomplished as a matter of public record
accessible to every citizen. The status of such a bill would
be clear; it has failed to receive presidential approval but
may yet become law if Congress, upon resumption of its
deliberations, passes the bill again by a two-thirds ma-
jority. This state of affairs generates no more public
uncertainty than does the return of a disapproved bill
while Congress is in actual session.⁸ The only possible
uncertainty about this situation arises from the absence
of a definitive ruling as to whether an intrasession ad-
journment "prevents" the return of a vetoed bill. Hope-
fully, our present opinion eliminates that ambiguity.
34 See items 88-133 in Appendix.
35 The only intrasession adjournments approaching this
occurred in 1867. See supra note 31.
36 The length of an intrasession adjournment per se does
not prevent the return of a disapproved bill for reconsidera-
tion. The Constitution sets no time limit on the right of
Congress to override a presidential veto.
37 Hearings, supra note 13 at 14, 15.
22
Appellants' brief directs our attention to the "con-
sistent executive practice" regarding pocket vetoes during
intrasession adjournments. The court has considered this
argument and finds it unpersuasive. As appellants admit,
consistent practice cannot create or destroy an executive
power. Appellants' Br. at 37-38.
In addition, the precedents cited by appellants are not
strong. Of only thirty-eight intrasession pocket vetoes in
GERALD
LIBRARY
the nation's history, thirty (or 78%) have occurred since
the inauguration of President Franklin Roosevelt.³⁸ None
occurred prior to 1867. 39 The intrasession pocket veto is,
therefore, a relatively modern phenomenon. Moreover, it
is a phenomenon which has gained new significance in
recent years as brief, intrasession recesses have become
more frequent.⁴⁰ The present case arises from the shortest
intrasession recess ever relied upon by any President as
having prevented the return of a disapproved bill.41 It is
also significant that, in the single case which presented
the issue of whether an intrasession adjournment pre-
cluded a return veto, the Supreme Court ruled that it had
not. Wright v. United States, supra. In our view, there-
fore, the question raised in this case is still very much an
open one, prior executive practice notwithstanding.
In summary, we hold that the Christmas recess of 1970
did not prevent the return of S. 3418-a conclusion which
may be reached by either of two routes. First, the pres-
ent case is governed by the logic, if not the precise hold-
ing, of the Wright decision. Second, the case is an
appropriate one for disposition of the question of whether
any intrasession adjournment, as that practice is pres-
38 See Appendix.
39 Id.
40 Id.
41 Id.
23
ently understood, can prevent the return of a bill by the
President where appropriate arrangements have been
made for receipt of presidential messages during the
adjournment-a question which must be answered in the
negative.
Affirmed.
and LIBRARY & GERALD
A1
APPENDIX
INTRASESSION ADJOURNMENTS OF MORE THAN
THREE DAYS BY CONGRESS (1789-June, 1974), IN-
DICATING THE NUMBER OF POCKET VETOES
DURING EACH ADJOURNMENT*
Length
of Ad- Number
journ-
of
Congress/
Dates of
ment Pocket
Session
Adjournment
(Days)
Vetoes
FORD
6/2
1. Dec. 24, 1800-Dec. 30, 1800
6
0
&
15/1
2. Dec. 25, 1817-Dec. 29, 1817
4
0
20/2
3. Dec. 25, 1828-Dec. 29, 1828
4
0
GERALD
35/1
4. Dec. 24, 1857-Jan. 4, 1858
11
0
35/2
5. Dec. 24, 1858-Jan. 4, 1859
11
0
37/3
6. Dec. 24, 1862-Jan. 5, 1863
12
0
38/1
7. Dec. 24, 1863-Jan. 5, 1864
12
0
38/2
8. Dec. 23, 1864-Jan. 5, 1865
13
0
39/1
9. Dec. 7, 1865-Dec. 11, 1865
4
0
10. Dec. 22, 1865-Jan. 5, 1866
14
0
39/2
11. Dec. 21, 1866-Jan. 3, 1867
13
0
40/1
12. March 31, 1867-July 1, 1867
92
1
13. July 21, 1867-Nov. 21, 1867
123
1
* Source: 1974 CONGRESSIONAL DIRECTORY 392; Presidential
Vetoes, Record of Bills Vetoed and Action Taken Thereon by
the Senate and House of Representatives, 1789-1968 (Com-
piled by Senate Library, 1969); Calendar, 93rd Cong. (June
24, 1974).
** The date of the beginning of each adjournment is the
first day on which neither House was in session; the date of
the end of each adjournment is the day on which one or both
Houses resumed the session.
A2
Pocket
Congress
Dates
Days
Vetoes
40/2
14. Dec. 21, 1867-Jan. 6, 1868*
16
2
40/3
15. Dec. 22, 1868-Jan. 5, 1869
14
0
41/2
16. Dec. 23, 1869-Jan. 10, 1870
18
0
41/3
17. Dec. 23, 1870-Jan. 4, 1871
12
0
42/2
18. Dec. 22, 1871-Jan. 8, 1872
17
0
42/3
19. Dec. 21, 1872-Jan. 6, 1873
16
0
43/1
20. Dec. 20, 1873-Jan. 5, 1874
16
0
43/2
21. Dec. 24, 1874-Jan. 5, 1875
12
0
44/1
22. Dec. 21, 1875-Jan. 5, 1876
15
0
45/2
23. Dec. 16, 1877-Jan. 10, 1878
25
0
GERALD
LIBRARY
45/3
24. Dec. 21, 1878-Jan. 7, 1879
17
0
46/2
25. Dec. 20, 1879-Jan. 6, 1880
17
0
46/3
26. Dec. 23, 1880-Jan. 5, 1881
13
0
47/1
27. Dec. 22, 1881-Jan. 5, 1882
14
0
48/1
28. Dec. 25, 1883-Jan. 7, 1884
13
0
48/2
29. Dec. 25, 1884-Jan. 5, 1885
11
0
49/1
30. Dec. 22, 1885-Jan. 5, 1886
14
0
49/2
31. Dec. 23, 1886-Jan. 4, 1887
12
0
50/1
32. Dec. 23, 1887-Jan. 4, 1888
12
0
50/2
33. Dec. 22, 1888-Jan. 2, 1889
11
0
51/1
34. Dec. 22, 1889-Jan. 6, 1890
15
0
52/1
35. Dec. 24, 1891-Jan. 5, 1892
12
0
* There were additional adjournments in this session, from
July 27, 1868, to September 21, to October 16, and to Novem-
ber 10. No business was transacted subsequent to July 27,
1868, and the session adjourned sine die on November 10.
In effect, the adjournment on July 27 was a sine die adjourn-
ment. President Andrew Johnson pocket vetoed two bills
presented to him after the adjournment of July 27, 1868.
A3
Pocket
Congress
Dates
Days
Vetoes
52/2
36. Dec. 23, 1892-Jan. 4, 1893
12
1
53/2
37. Dec. 22, 1893-Jan. 3, 1894
12
0
53/3
38. Dec. 23, 1894-Jan. 3, 1895
11
0
54/2
39. Dec. 23, 1896-Jan. 5, 1897
13
2
55/2
40. Dec. 19, 1897-Jan. 5, 1898
17
0
55/3
41. Dec. 22, 1898-Jan. 4, 1899
13
0
56/1
42. Dec. 21, 1899-Jan. 3, 1900
13
0
56/2
43. Dec. 22, 1900-Jan. 3, 1901
12
0
FORD LIBRARY i GERALD
57/1
44. Dec. 20, 1901-Jan. 6, 1901
17
0
57/2
45. Dec. 21, 1902-Jan. 5, 1903
15
0
58/2
46. Dec. 20, 1903-Jan. 4, 1904
15
0
58/3
47. Dec. 22, 1904-Jan. 5, 1905
14
0
59/1
48. Dec. 22, 1905-Jan. 4, 1906
13
0
59/2
49. Dec. 21, 1906-Jan. 3, 1907
13
0
60/1
50. Dec. 22, 1907-Jan. 6, 1908
15
0
60/2
51. Dec. 20, 1908-Jan. 4, 1909
15
0
61/2
52. Dec. 22, 1909-Jan. 4, 1910
13
0
61/3
53. Dec. 22, 1910-Jan. 5, 1911
14
0
62/2
54. Dec. 22, 1911-Jan. 3, 1912
12
0
62/3
55. Dec. 20, 1912-Jan. 2, 1913
13
0
63/2
56. Dec. 24, 1913-Jan. 12, 1914
19
0
63/3
57. Dec. 24, 1914-Dec. 29, 1914
5
0
64/1
58. Dec. 18, 1915-Jan. 4, 1916
17
0
64/2
59. Dec. 23, 1916-Jan. 2, 1917
10
0
65/2
60. Dec. 19, 1917-Jan. 3, 1918
15
0
66/1
61. July 2, 1919-July 8, 1919
6
0
A4
Pocket
Congress
Dates
Days
Vetoes
66/2
62. Dec. 21, 1919-Jan. 5, 1920
15
0
67/2
63. Dec. 23, 1921-Jan. 3, 1922
11
0
68/1
64. Dec. 21, 1923-Jan. 3, 1924
13
0
68/2
65. Dec. 21, 1924-Dec. 29, 1924
8
0
69/1
66. Dec. 23, 1925-Jan. 4, 1926
12
0
69/2
67. Dec. 23, 1926-Jan. 3, 1927
11
0
FOR
70/1
68. Dec. 22, 1927-Jan. 4, 1928
13
0
&
70/2
69. Dec. 23, 1928-Jan. 3, 1929
11
1
71/1
70. June 20, 1929-Aug. 19, 1929
60
0
GERALD
LIBRARY
71/2
71. Dec. 22, 1929-Jan. 6, 1930
15
0
71/3
72. Dec. 21, 1930-Jan. 5, 1931
15
0
72/1
73. Dec. 23, 1931-Jan. 4, 1932
12
0
74/2
74. June 9, 1936-June 15, 1936
6
0
76/3
75. July 12, 1940-July 22, 1940
10
0
78/1
76. July 9, 1943-Sept. 14, 1943
67
3
78/2
77. Apr. 2, 1944-Apr. 12, 1944
10
1
78. June 24, 1944-Aug. 1, 1944
38
5
79. Sept. 22, 1944-Nov. 14, 1944
53
1
79/1
80. Aug. 2, 1945-Sept. 5, 1945
34
0
80/1*
* The Senate and the House of Representatives adjourned
on July 27, 1947 under a "conditional final adjournment"
resolution, S. Con. Res. 33; 93 CONG. REC. 10400. Pursuant
to the resolution, the two Houses were to stand in adjourn-
ment until January 2, 1948, unless recalled into session earlier
by specified Senate and House leaders. In effect, the adjourn-
ment was a sine die adjournment, not an intrasession adjourn-
ment. On November 17, 1947, Congress convened pursuant to
proclamation of President Truman, and adjourned sine die
on December 19, 1947. The President pocket vetoed 19 bills
presented to him after the adjournment of July 27, 1947.
A5
Pocket
Congress
Dates
Days
Vetoes
80/2*
81/2
81. Sept. 24, 1950-Nov. 27, 1950
64
6
83/2**
84/1
82. Apr. 5, 1955-Apr. 13, 1955
8
0
84/2
83. Mar. 30, 1956-Apr. 9, 1956
10
1
85/1
84. Apr. 19, 1957-Apr. 29, 1957
10
0
85/2
85. Apr. 4, 1958-Apr. 14, 1958
10
0
FORD
i
86/1
86. Mar. 27, 1959-Apr. 7, 1959
11
0
86/2
87. July 4, 1960-Aug. 8, 1960
35
6
GERALD
88/2
88. July 11, 1964-July 20, 1964
9
0
89. Aug. 22, 1964-Aug. 31, 1964
9
1
89/2
90. Apr. 8, 1966-Apr. 13, 1966
5
0
91. July 1, 1966-July 11, 1966
10
0
90/1
92. Mar. 24, 1967-Apr. 3, 1967
10
0
93. June 30, 1967-July 10, 1967
10
0
94. Sept. 1, 1967-Sept. 11, 1967
10
0
95. Nov. 23, 1967-Nov. 27, 1967
4
0
* The Senate and the House of Representatives adjourned
on June 20, 1948, under a "conditional final adjournment"
resolution, H. Con. Res. 218; 94 CONG. REC. 9158. Pursuant to
the resolution, the two Houses were to stand in adjournment
until December 31, 1948, unless recalled into session earlier by
specified Senate and House leaders. In effect, the adjourn-
ment was a sine die adjournment, not an intrasession adjourn-
ment. On July 26, 1948, Congress convened pursuant to a
proclamation of President Truman. The President pocket
vetoed 14 bills presented to him after the adjournment of
June 20, 1948.
The House adjourned sine die on August 20, 1954.
Thereafter President Eisenhower pocket vetoed twenty-five
bills. Although the Senate remained in session until December
2, 1954, these were not intrasession pocket vetoes since the
House had already finally adjourned.
A6
Pocket
Congress
Dates
Days
Vetoes
90/2
96. Apr. 12, 1968-Apr. 17, 1968
5
0
97. May 30, 1968-June 3, 1968
4
0
98. July 4, 1968-July 8, 1968
4
0
99. Aug. 3, 1968-Sept. 4, 1968
32
1
91/1
100. Feb. 8, 1969-Feb. 17, 1969
9
0
101. Apr. 4, 1969-Apr. 14, 1969
10
0
102. July 3, 1969-July 7, 1969
4
0
GERALD
LIBRARY
103. Aug. 14, 1969-Sept. 3, 1969
20
0
104. Nov. 27, 1969-Dec. 1, 1969
4
0
91/2
105. Feb. 11, 1970-Feb. 16, 1970
5
0
106. Mar. 27, 1970-Mar. 31, 1970
4
0
107. Sept. 3, 1970-Sept. 8, 1970
5
0
108. Oct. 15, 1970-Nov. 16, 1970
32
1
109. Nov. 26, 1970-Nov. 30, 1970
4
0
110. Dec. 23, 1970-Dec. 28, 1970
5
2
92/1
111. Feb. 21, 1971-Feb. 7, 1971
5
0
112. Apr. 8, 1971-Apr. 14, 1971
6
0
113. May 28, 1971-June 1, 1971
4
0
114. July 2, 1971-July 6, 1971
4
0
115. Aug. 7, 1971-Sept. 8, 1971
32
1
116. Oct. 22, 1971-Oct. 26, 1971
4
0
117. Nov. 25, 1971-Nov. 29, 1971
4
0
92/2
118. Feb. 10, 1972-Feb. 14, 1972
4
0
119. Mar. 31, 1972-Apr. 4, 1972
4
0
120. May 26, 1972-May 30, 1972
4
0
121. July 1, 1972-July 17, 1972
16
0
122. Aug. 19, 1972-Sept. 5, 1972
17
1
A7
Pocket
Congress
Dates
Days
Vetoes
93/1
123. Feb. 9, 1973-Feb. 15, 1973
6
0
124. Apr. 20, 1973-Apr. 30, 1973
10
0
125. May 25, 1973-May 29, 1973
4
0
126. July 1, 1973-July 9, 1973
8
0
127. Aug. 4, 1973-Sept. 5, 1973
32
0
j
FORD
128. Oct. 19, 1973-Oct. 23, 1973
4
0
129. Nov. 22, 1973-Nov. 26, 1973
4
0
GERALD
93/2
130. Feb. 9, 1974-Feb. 13, 1974
4
0
131. Mar. 14, 1974-Mar. 19, 1974
5
0
132. Apr. 12, 1974-Apr. 22, 1974
10
0
133. May 24, 1974-May 28, 1974
4
0
-
38
.1
FAHY, Senior Circuit Judge, with whom BAZELON,
Chief Judge joins: I concur in the opinion of Judge Tamm
for the court, adding only a few notes.
Appellants contend in this court only that Senator Ken-
nedy lacks standing to obtain the adjudication he seeks,
and that the proposed legislation never became law be-
cause of a valid pocket veto. The opinion of Judge Tamm
meets these contentions. The position asserted in the
District Court that the President was an indispensable
party has not been renewed in this court; nor is any
issue of jurisdiction or justiciability now raised, aside
FORD
i
from the problem of standing as it might bear upon
jurisdiction or justiciability.
GERALD
I do not think the standing of Senator Kennedy is quite
the same as the 20 senators of the State of Kansas, the
plaintiffs in Coleman V. Miller, 307 U.S. 433 (1939).
Ratification by Kansas of the Child Labor Amendment
depended upon the validity of the vote of the Lieutenant
Governor which the senators challenged. If his vote
should not have been counted the Senate was equally
divided, 20-20, and ratification by Kansas would have
failed. In the present case, Senator Kennedy's vote did
not control passage of S. 3418. Nevertheless, his interest
is substantial. As a United States Senator he represents
a sovereign State whose people have a deep interest in the
Act and look to their Senators to protect that interest;
and he, as Senator, it seems to me, has a legal right not
only to seek judicial protection of those interests, believed
by him to be threatened by an invalid veto, but also, in
the circumstances, to protect his own interest as a na-
tional legislator in the bill for which he voted. These in-
terests I think do not depend for their protection upon
affirmative approval by the Senate itself of efforts to
obtain judicial relief. Moreover, as Judge Tamm points
out, the Senator's stake in the outcome of the controversy
meets the adversary test of standing under Baker V. Carr,
2
369 U.S. 186, 204 (1962), and subsequent decisions of
the Court.
The aliveness of the controversy also seems clear.
Whether the Act is to continue in its present form of
course is for Congress to decide, but it has not been
FUR
abandoned. Although its uncertain status necessarily
affected congressional appropriations, the Second Supple-
mental Appropriations Act, 1973, 87 Stat. 106, includes
GERALD
IBRAR
a $100,000 appropriation to carry out the purposes of the
Family Practice of Medicine Act, S. 3418, to remain
available until expended. S. REP. No. 160, 93d Cong.,
1st Sess. 48-49 (1973).