Fairman Discusses Veto Case Now Before the Supreme Court

The following article on the Pocket Veto case which is at present being argued before the Supreme Court was written for the Crimson by Professor Charles Fairman A.M. '15, Lecturer on Government.

When is a "pocket veto" not a veto? is the question which the suit of the Okanogan Indians now presents for the first time to the Supreme Court. The issue thus raised has aroused interest rather from its novelty than from its intrinsic importance. A practice sanctioned by more than a century of usage now awaits authoritative interpretation by the court of last resort. If this is not enough to explain the CRIMSON's interest in the subject, then perhaps judicial cognizance might be taken of the fact that aspirants for editorial advancement are prone to secure copy by means of appeals to instructors' professional interests.

At the close of its first session the 69th Congress passed a bill conferring upon the Court of Claims jurisdiction to hear the suit of the Okanogan Indians. On July 3, 1926--less than ten days thereafter--the first session adjourned sine die. The President did not sign the bill, nor did he return it to Congress with his objections. Did the bill become a law? No, held the Court of Claims. Yes, contended counsel for the Indians, who appeal to the Supreme Court.

Constitutional Question

The answer depends upon the construction of a clause in the Constitution:

"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."

The difficulty inheres in the word "adjournment." It is the contention of counsel for the Indians that "only the final adjournment of the Congress prevents the return (and reconsideration) of a vetoed bill." That is to say, "adjournment" in the above clause means only adjournment by reason of the expiration of the mandate of the Congress, which occurs on March 4 in the odd-numbered years.

Interpretation by Context

Any provision of the Constitution is to be reconciled with the instrument as a whole. The word "adjourn" appears several times in the text. Less than a quorum "may adjourn from day to day." Neither House shall without the consent of the other "adjourn for more than three days." "Every Order, Resolution, or Vote to which the concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President....." In case the Houses disagree "with Respect to the Time of Adjournment" the President "may adjourn them to such Time as he shall think proper." From the above and other passages it will appear that "adjournment" may be not merely due to the expiration of the life of a Congress, but from day to day, or until a certain day, or sine die. The occasion upon whch an unsigned bill is "pocket vetoed" occurs when "the Congress by their Adjournment" prevent its return. Adjournment from day to day is clearly not such an occasion. Adjournment sine die would seem clearly to be a case where the bill could not be returned within ten days. A more difficult question--not directly presented in the Okanogan case--is the matter of adjournment for longer than ten days during the continuance of a session, as, e.g., over the Christmas holidays. The "pocket veto" is conditioned on this: that Congress by their action prevent etc. Unless we are to accuse Gouvernor Morris of careless draughting, we can scarcely construe this to denote only that last adjournment which is not pursuant to the will of Congress, but in obedience to the Constitution which limits the life of a Congress to two years.

Another criterion in a question such as this is the history of the practice of the legislative and executive branches of the government. As Chief Justice Marshall said in another instance, "It is conceived that a doubtful question...., if not put to rest by the practice of the government, ought to receive a considerable impression from that practice."

In 1812 President Madison, the "Father of the Constitution," announced to the 2nd session of the 12th Congress the "pocket veto" of a bill passed at its 1st session, employing these words:

"The bill... which passed the two Houses at the last session of Congress, having appeared to me liable of abuse..., and therefore not been signed; and having been presented at an hour too near the close of the session to be returned with objections for reconsideration, the bill failed to become a law." Other Presidents who have expressly or implicitly concurred in the belief that the "pocket veto" is efficacious at the end of any session of a Congress include Jackson, Tyler, Buchanan, Lincoln, Johnson, Grant, Arthur, Cleveland, Harrison, McKinley, Roosevelt, Taft, Wilson, Harding, and Coolidge. The practice was upheld in the opinions of Attorney Generals Devens and Miller.

Legislative Opinion

In 1867-68 Congress twice considered the matter of "pocket vetoes." The 40th Congress had adjourned from March 30 to July 3, 1867. On July 8 a question was raised as to the status of a bill which the President had declined to sign during this interim. Rep. Eliot of Mass. suggested that it had become a law. But no member rose to share his view, and the House, recognizing that it was not a law, resolved that it be reenrolled and resubmitted. The Senate discussed the question but took no action. Senator Trumbull declared: "If we were not in session, and by our adjournment prevented its return, then it is not a law."

In 1868 the question arose as to the "pocket veto" of bills during an adjournment from December 20 to January 6. This was rather difficult, being the matter of a mere 17 day pause in the work of a session. Senator Edmunds introduced a bill to declare that the "pocket veto" could be exercised only at "the final adjournment of a session." Senator Sumner agreed with this interpretation. In the debate on the proposal Senator Bayard declared: "The very object of the clause looks to the fact that the bill should be returned during the session of the House in which it originated." The Senate passed Senator Edmunds' bill, 29:11. The vote means just this: 29 Senators believed that any adjournment sine die would give occasion for a "pocket veto", while 11 held that any interruption of more than 10 days would suffice. No one seems to have dreamed of suggesting that the "pocket veto" was restricted to the close of the last session of a Congress.

Even Senator Edmunds seems to have changed his mind, for on Dec. 24, 1884, while President pro tem. of the Senate, he wrote to President Arthur: "A bill has passed both Houses of Congress and was presented for my signature after both Houses had adjourned until 5th of January. This is more than ten days, and, if it were now presented to you, you could not return it with your objections... It would seem to me as if the bill could not become a law constitutionally."

Judicial Opinion

Finally, the Supreme Court has already, in an obiter dictum, given an interpretation of the clause in question. (175 U.S. 423 at 454). "If by its action, after the presentation of a bill to the President during the time given him by the Constitution for an examination of its provisions and for approving it by his signature, Congress puts it out of his power to return it, not approved, within that time to the House in which it originated, then the bill fails, and does not become a law."

It is believed that the Supreme Court will find no difficulty in sustaining the President's "pocket veto" in the Okanogan case.