ArtI.S7.C1.1.3 The Veto Power

Article I, Section 7, Clause 1:

All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.

The veto provisions, the Supreme Court has told us, serve two functions. On the one hand, they ensure that the President shall have suitable opportunity to consider the bills presented to him. . . . It is to safeguard the President's opportunity that Paragraph 2 of § 7 of Article I provides that bills which he does not approve shall not become law if the adjournment of the Congress prevents their return.1 At the same time, the sections ensure 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.2 The Court asserted that [w]e should not adopt a construction which would frustrate either of these purposes.3

In one major respect, however, the President's actual desires may be frustrated by the presentation to him of omnibus bills or of bills containing extraneous riders. During the 1980s, on several occasions, Congress lumped all the appropriations for the operation of the government into one gargantuan bill. But the President must sign or veto the entire bill; doing the former may mean he has to accept provisions he would not sign standing alone, and doing the latter may have other adverse consequences. Numerous Presidents from Grant on have unsuccessfully sought by constitutional amendment a line-item veto by which individual items in an appropriations bill or a substantive bill could be extracted and vetoed. More recently, beginning in the FDR Administration, it has been debated whether Congress could by statute authorize a form of the line-item veto, but, again, nothing passed. 4

That the interpretation of the provisions has not been entirely consistent is evident from a review of the only two Supreme Court decisions construing them. In The Pocket Veto Case, 5 the Court held that the return of a bill to the Senate, where it originated, had been prevented when the Congress adjourned its first session sine die fewer than ten days after presenting the bill to the President. The word adjournment was seen to have been used in the Constitution not in the sense of final adjournments but to any occasion on which a house of Congress is not in session. We think that under the constitutional provision the determinative question in reference to an 'adjournment' is not whether it is a final adjournment of Congress or an interim adjournment, such as an adjournment of the first session, but whether it is one that 'prevents' the President from returning the bill to the House in which it originated within the time allowed.6 Because neither House was in session to receive the bill, the President was prevented from returning it. It had been argued to the Court that the return may be validly accomplished to a proper agent of the house of origin for consideration when that body convenes. After first noting that Congress had never authorized an agent to receive bills during adjournment, the Court opined that delivery of the bill to such officer or agent, even if authorized by Congress itself, would not comply with the constitutional mandate.7

However, in Wright v. United States, 8 the Court held that the President's return of a bill to the Secretary of the Senate on the tenth day after presentment, during a three-day adjournment by the originating House only, was an effective return. In the first place, the Court thought, the pocket veto clause referred only to an adjournment of the Congress, and here only the Senate, the originating body, had adjourned. The President can return the bill to the originating House if that body be in an intrasession adjournment, because there is no practical difficulty in effectuating the return. The organization of the Senate continued and was intact. The Secretary of the Senate was functioning and was able to receive, and did receive the bill.9 Such a procedure complied with the constitutional provisions. The Constitution does not define what shall constitute a return of a bill or deny the use of appropriate agencies in effecting the return.10 The concerns activating the Court in The Pocket Veto Case were not present. There was no indefinite period in which a bill was in a state of suspended animation with public uncertainty over the outcome. When there is nothing but such a temporary recess the organization of the House and its appropriate officers continue to function without interruption, the bill is properly safeguarded for a very limited time and is promptly reported and may be reconsidered immediately after the short recess is over.11

The tension between the two cases, even though at a certain level of generality they are consistent because of factual differences, has existed without the Supreme Court yet having occasion to review the issue again. But, in Kennedy v. Sampson, 12 an appellate court held that a return is not prevented by an intra-session adjournment of any length by one or both Houses of Congress, so long as the originating House arranged for receipt of veto messages. The court stressed that the absence of the evils deemed to bottom the Court's premises in The Pocket Veto Case – long delay and public uncertainty – made possible the result.

The two-thirds vote of each House required to pass a bill over a veto means two-thirds of a quorum. 13 After a bill becomes law, of course, the President has no authority to repeal it. Asserting this truism, the Court in The Confiscation Cases14 held that the immunity proclamation issued by the President in 1868 did not require reversal of a decree condemning property seized under the Confiscation Act of 1862. 15

Footnotes

  1.  Jump to essay-1Wright v. United States, 302 U.S. 583 (1938).
  2.  Jump to essay-2302 U.S. at 596.
  3.  Jump to essay-3302 U.S. at 596.
  4.  Jump to essay-4See Line Item Veto: Hearing Before the Senate Committee on Rules and Administration, 99th Cong., 1st sess. (1985), esp. 10-20 (CRS memoranda detailing the issues). Some publicists have even contended, through a strained interpretation of clause 3, actually from its intended purpose to prevent Congress from subverting the veto power by calling a bill by some other name, that the President already possesses the line-item veto, but no President could be brought to test the thesis. See Pork Barrels and Principles: The Politics of the Presidential Veto (National Legal Center for the Public Interest, 1988) (essays).
  5.  Jump to essay-5279 U.S. 655 (1929).
  6.  Jump to essay-6279 U.S. at 680.
  7.  Jump to essay-7279 U.S. at 684.
  8.  Jump to essay-8302 U.S. 583 (1938).
  9.  Jump to essay-9302 U.S. at 589-90.
  10.  Jump to essay-10302 U.S. at 589.
  11.  Jump to essay-11302 U.S. at 595.
  12.  Jump to essay-12511 F.2d 430 (D.C. Cir. 1974). The Administration declined to appeal the case to the Supreme Court. The adjournment here was for five days. Subsequently, the President attempted to pocket veto two other bills, one during a 32-day recess and one during the period in which Congress had adjourned sine die from the first to the second session of the 93d Congress. After renewed litigation, the Administration entered its consent to a judgment that both bills had become law, Kennedy v. Jones, 412 F. Supp. 353 (D.D.C., decree entered April 13, 1976), and it was announced that President Ford will use the return veto rather than the pocket veto during intra-session and intersession recesses and adjournments of the Congress, provided that the House to which the bill must be returned has authorized an officer to receive vetoes during the period it is not in session. President Reagan repudiated this agreement and vetoed a bill during an intersession adjournment. Although the lower court applied Kennedy v. Sampson to strike down the exercise of the power, but the case was mooted prior to Supreme Court review. Barnes v. Kline, 759 F.2d 21 (D.C. Cir. 1985), vacated and remanded to dismiss sub nom. Burke v. Barnes, 479 U.S. 361 (1987).
  13.  Jump to essay-13Missouri Pacific Ry. v. Kansas, 248 U.S. 276 (1919).
  14.  Jump to essay-1487 U.S. (20 Wall.) 92 (1874).
  15.  Jump to essay-1512 Stat. 589 (1862).