If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.Article I, Section 7, Clause 2
In order to ensure the vitality of the separation of powers, the Framers gave the Executive, as James Madison wrote in The Federalist No. 47, a "partial agency" in the legislative process. Under Article II, Section 3, Clause 1, the President can propose measures to Congress, and under Article I, Section 7, Clause 2, the President can approve or veto bills that the Congress must present to him. If he does veto the bill, he must return it to Congress, which may then override his veto by a two-thirds vote. What happens, however, if the President refuses to approve or to return the bill to Congress? What happens if Congress adjourns, preventing a return of the bill?
In order to solve these two problems, the Framers crafted this part of the Pocket Veto Clause. If the President refuses to approve or return the bill within ten days (not including Sunday), the bill automatically becomes law. If, in the interim, Congress has adjourned, the bill dies and the legislation must be reintroduced and passed again when Congress reconvenes. Later termed by Andrew Jackson the "Pocket Veto," the clause has been the subject of much controversy between the President and the Congress.
There is an ambiguity as to which kinds of adjournments the clause covers: (1) sine die adjournments when a Congress comes to an end, and a newly elected Congress must convene; (2) intersession adjournments between the two sessions of the same Congress; and (3) intrasession adjournments when Congress takes a break within a session. There is virtually unanimous agreement that the President may pocket veto a bill when Congress adjourns sine die. Although some Members of Congress have disputed the validity of intersession and intrasession pocket vetoes, the Congress as a whole has acquiesced in these kinds of presidential pocket vetoes during such adjournments.
As a model for the veto power, the Framers used the constitution of the state of New York of 1777 but omitted the section that would have prohibited intersession pocket vetoes:
that if any bill shall not be returned...within ten days after it shall have been presented, the same shall be a law, unless the legislature shall, by their adjournment, render a return of the said bill within ten days impracticable; in which case the bill shall be returned on the first day of the meeting of the legislature after the expiration of the said ten days [emphasis added].
Other parts of the Constitution refer to adjournments of differing lengths, but the Framers did not particularize which adjournments would or would not be subject to the pocket veto. Textually, therefore, it seems that the clause permits the President to exercise a pocket veto any time the Congress as a whole adjourns.
On the other hand, advocates for the view that the clause applies only to sine die adjournments hold that the purpose of the Pocket Veto Clause was to permit the President and the Congress to continue to engage in the legislative process if at all practicable. Just as the President is not permitted to veto a law simply by not signing it, so should he not be permitted to veto a law simply because Congress has recessed for a few days. The advocates for greater congressional authority assert that an intrasession adjournment (and perhaps even an intersession adjournment) does not "prevent a return" as the clause states it. It merely postpones the return until Congress reconvenes. Further, many holding this view have also asserted that so long as Congress appoints an agent to receive the return while it is adjourned, the President may not pocket veto the legislation.
President James Madison exercised the first pocket veto during an intersession; Andrew Jackson, the first pocket veto after a final adjournment (prompting an objection from Henry Clay); and President Andrew Johnson, the first intrasession vetoes (rejecting five bills). In response to Johnson's action, the Senate passed a bill regulating the presidential return of bills, excluding intrasession recesses from the definition of adjournment. The bill never made it through the House. That action typifies the history of the dispute. From time to time, Members of Congress seek legislation limiting the President's use of the pocket veto, but none of these efforts has ever ripened into law.
Meanwhile, the use of the pocket veto accelerated. By 1929, 479 bills had been thus vetoed, about one-fourth during intersession adjournments but only eight during intrasession breaks. In that year, the Supreme Court decided The Pocket Veto Case. During a five-month intersession adjournment, President Calvin Coolidge had pocket vetoed a bill that would have given entitlements to a group of Indian tribes. The tribes sought to claim their rights, asserting that the President's veto was invalid and that therefore the bill had become law. The Court upheld the President's action. It found no constitutional distinction among the various types of adjournment. The President, the Court declared, could not return a bill to a Congress that was not actually sitting. It was Congress's choice whether to adjourn before the ten-day period could run. In Wright v. United States (1938), however, the Court held that a three-day recess by a single House did not meet the clause's definition of adjournment.
Beginning with Franklin D. Roosevelt's tenure, presidential power increased and so did the use of the pocket veto. From 1930 until 1972, seventy-six bills fell to vetoes during intrasession breaks and 143 others during intersession adjournments. Presidents accompanied many vetoes with messages explaining the reason for the rejection. Congress continued to acquiesce in the practice.
The congressional counterattack began during President Richard M. Nixon's administration. In Kennedy v. Sampson (1974), a federal court declared invalid an intrasession pocket veto. Two years later another dispute, Kennedy v. Jones (1976), produced an agreement between Congress and the President limiting the use of the pocket veto to only sine die adjournments. In each case, the federal courts tried to distinguish The Pocket Veto Case by claiming that modern Congresses were no longer in recess or adjournment for such a lengthy time as to "prevent a return."
President Ronald Reagan, however, renounced that agreement and made pocket vetoes during intersession adjournments, the latter resulting in the D.C. Circuit's prohibition of intersession vetoes when Congress has appointed an agent to receive a return. Barnes v. Kline (1985). The Supreme Court, however, vacated the decision as moot. Following the action by the Supreme Court, the Department of Justice declared its opinion that the President's pocket-veto power extends to any adjournment of longer than three days. President George H.W. Bush continued to exercise the power, as did President William Jefferson Clinton, and repeated attempts in Congress to pass legislation stating its view of the power have failed to pass. Recently, Congress has treated pocket vetoes as regular vetoes and has scheduled override votes, but none have succeeded. When Presidents now exercise the pocket veto, they do so with a "protective return": a message declaring the objections to the bill so that if, perchance, a court holds the pocket veto invalid, the bill will be treated as vetoed in the regular manner, rather than becoming law by default.
- David F. Forte
- Professor of Law
- Cleveland-Marshall College of Law