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.
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. By these devices, the Framers set themselves squarely against any absolute veto by the president. But what happens 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 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 Congress.
There is an ambiguity as to what kinds of adjournment the clause covers: (1) sine die adjournment when a Congress comes to an end, and a newly elected Congress must convene, (2) intersession adjournment between 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, Congress as a whole has acquiesced in these kinds of presidential pocket veto.
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.”)
Other parts of the Constitution refer to adjournments of differing lengths, but the Framers did not particularize which adjournments would or would not affect a 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 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 at all.
President James Madison exercised the first pocket veto during an intersession, Andrew Jackson exercised the first pocket veto after a final adjournment (prompting an objection from Henry Clay), and Andrew Johnson exercised 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 have sought 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, bolstered by several attorney general opinions stating that both intersession and intrasession pocket vetoes are constitutional. By 1929, 479 bills had been pocket 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 unanimously 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 its course. Further, the Court found “no substantial basis” for the view that a bill constitutionally could be returned to an adjourned house “by delivering it, with the President’s objections, to an officer or agent of the House.” In Wright v. United States (1938), however, the Court held that a three-day recess by a single house while the other remained in session did not meet the clause’s definition of adjournment.
Beginning with President 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. The high point of the congressional attack on Roosevelt’s expansive use of the pocket veto came in 1940. Congress passed a bill that would have revived all legislation previously pocket vetoed during non– sine die adjournments of Congress. Congress passed the measure as a means of asserting that Roosevelt’s pocket vetoes had not been valid. The bill was “returned” as a regular veto by President Roosevelt, and the House failed to override. Subsequently, Congress fell back into acquiescence.
The congressional counterattack was renewed during President Richard M. Nixon’s administration, this time through the courts. In Kennedy v. Sampson (1974), a federal court declared an intrasession pocket veto invalid and held that the disputed legislation was validly enacted. 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 sine die adjournments.
President Ronald Reagan, however, renounced that agreement and made pocket vetoes during intersession adjournments, even though Congress had appointed an agent to receive a “return” of the legislation as a standard veto subject to being overridden. One of President Reagan’s pocket vetoes resulted in a suit by members of Congress. In Barnes v. Kline (1985), a panel of the D.C. Circuit, over a dissent by Judge Robert Bork, held that members of Congress possessed standing to bring the suit and that the issue was “justiciable,” that is, capable of judicial resolution rather than being left to the political branches to decide. The court then held that the Constitution forbids intersession pocket vetoes when Congress has appointed an agent to receive a return. The Barnes court distinguished The Pocket Veto Case by stating that appointing an agent would be valid if it “would not occasion undue delay or uncertainty over the returned bill’s status.”
The Supreme Court vacated the decision as moot, as the law at issue had expired by its own terms. 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 and President William Jefferson Clinton each used a pocket veto once. President George W. Bush’s administration asserted that the president was entitled to exercise a pocket veto with as little as a three-day recess of the house in which the bill had originated. President Barack Obama has exercised two pocket vetoes, each accompanied by a regular veto of the same bill at the same time. Each time when it returned from its recess, the House of Representatives attempted to override his “regular” veto, solely to show its disapproval of the pocket veto. The overrides failed.
Repeated attempts in Congress to pass legislation stating its view of the pocket veto power continue to fall short of passage. Thus far, anytime Congress has treated a pocket veto as a regular veto and has scheduled an override vote, the attempt has failed. When presidents now exercise the pocket veto, they typically do so, as did President Obama, 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. Observers have noted that the purposes of the pocket veto and the return veto are so inconsistent that presidents who use the device of the “protective return” are committing constitutional self-contradiction.
Butler C. Derrick Jr., Stitching the Hole in the President’s Pocket: A Legislative Solution to the Pocket-Veto Controversy, 31 Harv. J. Legis. 371 (1993)
Robert Neal Webner, The Intersession Pocket Veto and the Executive-Legislative Balance of Powers, 73 Geo. L.J. 1185 (1985)
The Pocket Veto Case, 279 U.S. 655 (1929)
Wright v. United States, 302 U.S. 583 (1938)
Kennedy v. Sampson, 511 F.2d 430 (D.C. Cir. 1974)
Kennedy v. Jones, 412 F. Supp. 353 (D.D.C. 1976)
Barnes v. Kline, 759 F.2d 21 (D.C. Cir. 1985)