Order Code RL30909
CRS Report for Congress
Received through the CRS Web
The Pocket Veto:
Its Current Status
March 30, 2001
Senior Specialist in Separation of Powers
Government and Finance Division
Congressional Research Service ˜ The Library of Congress
The Pocket Veto: Its Current Status
The Constitution provides that any bill not returned by the President “within ten
Days (Sundays excepted)” shall become law, “unless the Congress by their
Adjournment prevent its Return, in which Case it shall not be a Law.” This
instrument of presidential power, known as the “pocket veto,” was first used in 1812
by President James Madison. Unlike the regular veto, which is subject to a
congressional override, a pocket veto is “absolute” because it is not returned to
Beginning in 1929, several judicial decisions attempted to clarify when an
adjournment by Congress would “prevent” the President from returning a veto.
Several cases during the Nixon administration appeared to restrict the pocket veto to
a final adjournment of Congress at the end of the second session, and that
understanding was accepted by the Ford and Carter administrations. Under this
political accommodation, Presidents would not use the pocket veto in the middle of
a session (intrasession vetoes) or between the first and the second sessions
However, that agreement has not been followed by the Reagan, Bush, and
Clinton administrations. President Ronald Reagan issued a pocket veto late in 1981
and 1983 (at the end of the first sessions), and President George Bush also used
intersession pocket vetoes late in 1989 and 1991. President Bill Clinton, in 2000,
used three intrasession pocket vetoes.
The pocket vetoes by Presidents Bush and Clinton were unusual in the sense that
the vetoes were returned to Congress. Evidently the inter- and intrasession
adjournments by Congress did not “prevent” the return of the vetoes. If the President
returned these “pocket vetoes,” could Congress attempt an override? The answer is
that Congress several times has taken override votes on these types of pocket vetoes.
Efforts to legislate the meaning of “adjournment” have thus far been
unsuccessful, nor has there been any definitive judicial ruling to clarify the
constitutional issue, although court rulings have established important parameters for
the pocket veto. As a result, the scope of the pocket veto power has been left largely
to practice and to political understandings developed by the executive and legislative
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Legislation in 1868 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Twentieth Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Judicial Rulings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Five-month Adjournment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Brief Recess of Single House . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Brief Adjournment by Both Houses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Legislative Proposals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Defining “Adjournment” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Ford and Carter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
“Protective Return” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Rehabilitation Bill . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
National Security Act Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Bork Memo . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Initiatives by President Reagan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Bankrupt Florida Firm . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
El Salvador Certification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Supreme Court Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Other Reagan Vetoes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Legislative Proposals: 1989-90 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Justice Department Position . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Immediate Consideration of a Veto? . . . . . . . . . . . . . . . . . . . . . . . . . . . .
The Three-day Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Pocket Vetoes from 1989 to 2000 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
FIRREA Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Chinese Immigration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Udall Scholarship Fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Clinton’s Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Marriage and Death Tax Bills . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Intelligence Authorization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Selected References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
The Pocket Veto: Its Current Status
The framers of the Constitution rejected proposals for an absolute executive veto
recommended by James Wilson and Alexander Hamilton. The delegates at the
Philadelphia convention defeated that proposal, ten states voting against it and not a
single one in favor. The President received a qualified veto, subject to an override by
a two-thirds majority of each House of Congress.1
However, an absolute veto is available in some situations. The Constitution
provides that any bill not returned by the President “within ten Days (Sundays
excepted)” shall become law “unless the Congress by their Adjournment prevent its
Return, in which Case it shall not be a Law.” This language allows for a distinction
between “regular vetoes” (returned to Congress for an override vote) and “pocket
vetoes” (not returned). As this report later explains, there now exists a new hybrid
version: pocket vetoes that are returned to Congress.
James Madison was the first President to exercise a pocket veto. Both of his
pocket vetoes were done after lengthy adjournments between the first and second
sessions. On July 6, 1812, Congress adjourned at the end of the first session of the
12th Congress, returning on November 2, 1812 to begin the second session.
Madison’s message, referring to the pocket veto, is dated November 5, 1812:
The bill, entitled “An act supplementary to the acts heretofore passed
on the subject of an uniform rule of naturalization,” which passed the two
Houses at the last session of Congress, having appeared to be liable to
abuse by aliens having no real purpose of effectuating a naturalization, 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. . . .2
1 The Records of the Federal Convention of 1787, at 96-104 (Max Farrand ed., 4 vols. New
Haven, Conn.: Yale University Press, 1937) (hereafter “Farrand”). George Reed of Delaware
later proposed that the President be given an absolute veto. His motion was rejected, 1 to 9
(2 Farrand 200). The delegates voted on August 15 to require a three-fourths majority for an
override, voting 6 to 4 (id. at 301), but reversed themselves on September 12 by an identical
vote in support of the two-thirds requirement (id., at 582-83, 585-87).
Annals of Cong., 12th Cong., 2nd sess. 17; Presidential Vetoes, 1789-1988, S. Pub. 102-12,
at 5 (H.R. 170).
The intersession adjournment of the 12th Congress lasted almost four months.
Madison’s second pocket veto occurred in 1816, after Congress on April 30, 1816,
adjourned to end the first session of the 14th Congress. The bill was presented to him
on April 27, 1816. Congress began the second session on December 2, 1816, a little
more than six months later.3
Legislation in 1868
On February 17, 1868, Senator George F. Edmunds announced that the Senate
Committee on the Judiciary had reported S. 366, a bill to regulate “the presentation
of bills to the President and the return of the same.”4 The bill stated that “the
adjournment of Congress which shall prevent the return of any such bill by the
President to that house in which it originated, shall be held and construed to be the
final adjournment of a session, and not an adjournment of either or both houses of
Congress . . . to a particular day.”5 The apparent purpose was to prohibit pocket
vetoes in the middle of a session but to allow them between the first and second
sessions. The bill also provided that when a House was not in session, the President
would return a veto message to the Secretary of the Senate or the Clerk of the House
of Representatives. Furthermore, the bill provided that if the President failed to return
a bill to Congress within the time defined by S. 363, the bill “shall be a law” and it
shall be the duty of the President to deliver the bill to the Secretary of State to be
promulgated as a law.
Senate debate began February 24. After some Senators objected to the use of
legislation to alter a process set forth in the Constitution, action on the bill was
delayed by a day.6 Debate resumed March 18 and concluded March 24, when the bill
passed by a vote of 29 to 11.7 The bill was taken up in the House, left on the
Speaker’s table, and referred to the House Committee on the Judiciary.8 There was
no further action on the bill.
Pocket vetoes reflect the practice of the 19th and early 20th centuries, when
Congress would adjourn for substantial amounts of time between the first and second
sessions. Typically the first session would be long (usually over 200 days and
sometime over 300 days), followed by a short second session that lasted between 80
to 90 days.9 That pattern changed markedly after ratification of the Twentieth
Amendment on January 23, 1933. Instead of Congress assembling on the first
Presidential Vetoes, at 5-6 (H.R. 106).
Cong. Globe, 40th Cong., 2nd sess. 1204 (1868).
S. 366, 40th Cong., 2nd sess. (Feb. 17, 1868).
Cong. Globe, 40th Cong., 2nd sess. 1371-73, 1404-05, 1406.
Id. at 1940-43, 2076-78.
Id. at 2083, 2543, 4341-42.
Congressional Directory, 1999-2000, at 526-30.
Monday in December (Art. I, Section 4), Congress would now meet on January 3 of
each year. After 1933 the short sessions disappeared, and so did the lengthy
adjournments between the first and second sessions.
The Supreme Court has addressed the pocket veto issue in several rulings,
ranging from multi-month adjournments of Congress to short recesses by a single
House. A number of important rulings have been handed down by lower courts, but
judicial interpretations of the pocket veto power remain unclear because the Supreme
Court in 1987 decided to sidestep a pocket veto issue on procedural grounds
(mootness) rather than reach a substantive holding.
The Supreme Court first decided a pocket veto dispute in 1929. In preparation
for this legal controversy, the Justice Department completed a lengthy memo on bills
presented to the President less than 10 days before the adjournment of Congress and
not signed by him.10 The bill that was litigated reached President Calvin Coolidge on
June 24, 1926, less than 10 days before Congress adjourned on July 3, at the end of
the first session of the 69th Congress. The intersession adjournment lasted until
December 6, or over five months. The Supreme Court unanimously upheld the
pocket veto, concluding that the adjournment prevented the President from returning
the bill. The crucial issue was not whether an adjournment was final or interim but
whether it “prevented” the bill’s return. The Court held that a bill had to be returned
to the chamber while it is in session and capable of legislative work. It was not
sufficient, said the Court, for the veto message to be delivered to a legislative agent
and held until the chamber resumed its sittings.11
This latter point, regarding legislative agents, was dicta and not the central
holding of the case. At Senate hearings in 1971, William H. Rehnquist testified as the
head of the Office of Legal Counsel in the Justice Department. Although The Pocket
Veto Case said that if Congress were to appoint agents to receive presidential
messages it would be without effect, because the return must be to Congress in
session, Rehnquist remarked: “I think most people would concede that was what you
might call dicta and that was not necessary to the decision in the case so it is not as
binding as it would be had it been necessary . . . .”12
Reprinted in H. Doc. No. 493, 70th Cong., 2nd sess. (1928).
The Pocket Veto Case, 279 U.S. 655, 680-85 (1929).
“Constitutionality of the President’s ‘Pocket Veto’ Power,” Hearing before the
Subcommittee on Separation of Powers of the Senate Committee on the Judiciary, 92nd
Cong., 1st sess. 18 (1971).
Brief Recess of Single House
The next issue for the Court concerned the adjournment not of Congress as a
whole but of a recess by the Senate, which had recessed for three days. The Court
considered the time so short that the Senate could act with “reasonable promptitude”
on the veto. Also, the Secretary of the Senate functioned during the recess and was
able to receive (and did receive) the bill. The Court made this comparison between
executive agents authorized to receive bills while the President is absent, and
legislative agents authorized to receive veto messages while Congress is adjourned
or in recess:
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 presentation 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 of the legislative body? To say
that the President cannot return a bill when the House in which it originated
is in recess 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 practical considerations and by implying a requirement of an
artificial formality to erect a barrier to the exercise of a constitutional
The Court emphasized that the veto procedure serves two fundamental purposes:
(1) to give the President an opportunity to consider a bill presented to him, and (2)
to give Congress an opportunity to consider his objections and override them. Both
objectives required protection. To allow the pocket veto to expand without limit
would create a kind of absolute veto that the framers had rejected.14
Brief Adjournment by Both Houses
There were no further legal disputes until President Richard Nixon, on December
24, 1970, exercised a pocket veto over the Family Practice of Medicine Bill.15 The
bill had passed the Senate 64 to 1 and the House 346 to 2, providing what appeared
to be overwhelming majorities for any veto that Nixon might exercise. Both chambers
adjourned on December 22 for the Christmas holidays. The Senate returned on
December 28 and the House the following day. Not counting December 27 (a
Sunday), the Senate was absent for four days and the House for five.
Unlike the 1929 case, Nixon’s action involved a short adjournment during a
session rather than a lengthy adjournment at the end of a session. A district court held
that the Christmas adjournment had not prevented Nixon from returning the bill to
Wright v. United States, 302 U.S. 583, 590 (1938).
Id. at 596-97. For an Attorney General opinion upholding a pocket veto after Congress had
adjourned in 1943 for two months, see 40 Op. Att’y Gen. 274 (1943).
Public Papers of the Presidents, 1970, at 1156.
Congress as a regular veto. The bill therefore became law on December 25, 1970, 10
days after it had been presented to the President.16
When an appellate court upheld this decision the following year, it appeared that
pocket vetoes would be impermissible during any intrasession adjournment. The D.C.
Circuit ruled 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 vetoes during the
adjournment.”17 The Justice Department decided not to appeal this case to the
Supreme Court.18 The bill was eventually printed as a public law (P.L. 91-696) and
backdated to December 25, 1970, which marked the end of the 10-day period
provided in the Constitution for executive review of bills.
Because of the brief interval between the first and second sessions (which can
be shorter than an intrasession adjournment), intersession pocket vetoes also seemed
suspect. Under this logic, pocket vetoes would be available only with final
adjournment of a Congress at the end of the second session. [Litigation in the 1980s,
culminating in the Barnes case, is discussion later in the section “Initiatives by
In response to President Nixon’s pocket veto of the Family Practice of Medicine
Bill, both Houses held hearings and considered statutory language to restrict the use
of pocket vetoes. The Senate Judiciary Committee held a hearing on January 26,
1971, to examine the constitutionality of Nixon’s action and to evaluate legislative
options. On April 7, 1971, Subcommittee No. 5 of the House Committee on the
Judiciary held hearings on H.R. 6225, which was designed to spell out the pocket veto
powers of the President.
H.R. 6225 defined “adjournment” as the sine die adjournment that terminates a
session of Congress. Thus, the bill would have prevented intrasession pocket vetoes
but not intersession pocket vetoes after Congress adjourned sine die at the end of the
first session. Senator Sam Ervin introduced a similar bill (S. 1642), but defined
adjournment to mean an adjournment sine die by either the Senate or the House.
Both bills provided for a legislative officer to receive veto messages while Congress
“is not actually in session.”
In the 93rd Congress, Congressman Peter Rodino introduced H.R. 7386,
pursuant to the Necessary and Proper Clause, to provide that the return of a bill,
Kennedy v. Sampson, 364 F.Supp. 1075, 1087 (D.D.C. 1973).
Kennedy v. Sampson, 511 F.2d 430, 437 (D.C. Cir. 1974).
Arthur John Keeffe, with John Harry Jorgenson. “Solicitor General Pocket Vetoes the
Pocket Veto,” 61 A.B.A.J. 755 (1975).
order, resolution, or vote under Section 7 of Article I of the Constitution “is
prevented only when the adjournment of the Congress, or of either House, is sine
die.” That bill was reported by the House Judiciary Committee on May 1, 1974, but
no further action was taken. The report explained:
It should be understood that the President possesses no pocket veto
power as such. A pocket veto is something the Congress causes. It is the
result that occurs when Congress waives its right to reconsider legislation
when its adjournment prevents the return of the bill. 19
In other words, according to this interpretation, the presidential opportunity to
exercise a pocket veto depends on circumstances that Congress can control. Through
legislation, the committee argued, Congress could clarify the kind of adjournment that
“prevents the return” of a bill. The committee believed that “just as Congress has the
power to define those instances where there is a burden on interstate commerce or a
violation of the equal protection clause, it may define those instances where an
adjournment prevents the return of a bill.”20
Ford and Carter
In 1974, Congress adjourned from October 17 to November 18 for the elections.
During that intrasession period, President Gerald Ford exercised the pocket veto five
times, but in a unique manner. Although he claimed to pocket veto the bills, he also
returned them to Congress, using the identical language each time: “I am advised by
the Attorney General and I have determined that the absence of my signature from
this bill prevents it from becoming law. Without in any way qualifying this
determination, I am also returning it without my approval to those designated by
Congress to receive messages at this time.”21
Other Presidents have used the approach, which the Justice Department calls a
“protective return.” That phrase means the return of a bill, along with a veto
message, during the time that Congress is in recess, with the hope that it protects
against the possibility that (contrary to the executive branch view) a court might hold
that Congress had appointed an official to receive veto messages during the recess and
that Congress had not by its adjournment prevented the return of the bill. Therefore,
a pocket veto is unavailable. A “protective return” is a hybrid: the President claims
the power of pocket veto but, at the same time, returns the bill to Congress for a
H. Rept. No. 93-1021, 93rd Cong., 2nd sess. 2 (1974).
Public Papers of the Presidents, 1974, at 447 (October 22, 1974, veto of National Wildlife
Refuge System Legislation). The same language appears in four other vetoes on October 29,
1974, covering two private bills (id. at 499-500 and 501), a farm labor bill (id. at 503), and
Vocational Rehabilitation Act Amendments (id. at 504-05).
After Congress returned on November 18, President Ford told lawmakers that
during the adjournment “it was necessary for me to pocket veto five bills.” Yet he
said that he had returned the bills to Congress, adding this comment: “If the Congress
should elect to challenge these vetoes by overriding them, there could be a prolonged
legal uncertainty over this legislation. However, I would welcome new legislation to
replace the measures which were vetoed.”22
Congress treated the “pocket vetoes” as return vetoes, capable of being
overridden by a two-thirds vote of each chamber. In fact, both Houses overrode the
veto of the Vocational Rehabilitation Act Amendments: the House on November 20
and the Senate on November 21. Nevertheless, the Administration refused to
promulgate it as a law. Senator Edward Kennedy amended a pending bill––affecting
a pocket veto claim dating back to the Nixon administration––to include the
rehabilitation bill and also brought the matter to court. On January 19, 1976, a
district court agreed with Kennedy v. Sampson that pocket vetoes could not be used
except after adjournment sine die unless Congress failed to appoint individuals to
receive veto messages from the President.23
While this litigation was underway, the Administration announced an
accommodation with Congress. On December 19, 1975, with Congress about to
adjourn sine die for the first session of the 94th Congress, some Members of Congress
expressed concern that any bills submitted to President Ford might be pocket vetoed.
Representative Bob Eckhardt, recalling the Nixon precedent with the Family Practice
of Medicine bill, said that the “only way we can safely posture ourselves during a
period of time like Christmas is not to adjourn for a period longer than 3 days. As
long as we do not adjourn for a period longer than 3 days, a pocket veto is not
The Ford administration, communicating its views through House Minority
Leader John Rhodes, announced that it would not use the pocket veto during
intersession adjournments. Rhodes stated that President Ford “has no plans to
exercise his constitutional right of pocket veto.” When Congress submitted legislation
to him, “he will either sign it or veto it in the ordinary way, which would preserve the
right of this House and of the other body to either sustain or override those vetoes
when we come back after the sine die adjournment.”24
National Security Act Amendments
The second session of the 94th Congress began January 19, 1976. When the House
and the Senate returned, lawmakers had an opportunity to override President Ford’s
December 31, 1975, veto of amendments to the National Security Act. As he had
promised, Ford used a regular veto, not a pocket veto. In the Senate, during the
Id. at 624-25.
Kennedy v. Jones, 412 F.Supp. 353 (D.D.C. 1976).
121 Cong. Rec. 41884 (1975)
override debate, Senator Edward Kennedy said that Ford’s action in returning the bill
to Congress “is an unprecedented as it is welcome to those of us who have been
endeavoring to obtain a rationale [sic] construction of the pocket veto clause.”25
On January 26,1976, Solicitor General Robert Bork wrote a memorandum to
Attorney General Edward Levi, concluding that President Ford should not exercise
the pocket veto during intrasessions and intersessions, but only at sine die
adjournment at the end of the second session, provided that Congress has authorized
an officer or other agent to receive return vetoes.26 Bork reached that conclusion by
taking into account both historical and practical considerations. He wrote: “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.”27 The use of a pocket veto, he wrote, “is improper whenever
a return veto is possible.”28
In addition to calling attention to the shortness of contemporary intra- and
intersession adjournments, Bork offered a more practical reason for limiting the
President’s pocket veto power. The constitutional text, he noted, does not prescribe
a time limit for the period when Congress passes a bill and when it must present the
bill to the President. He continues: “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. This fact
reduces the argument for the power to pocket veto during intra-session or intersession recesses or adjournments to the level of constitutional triviality.”29
On January 29, 1976, Attorney General Levi wrote to President Ford, advising
him that it was “extremely unlikely” that the Justice Department would prevail in its
defense of the Ford pocket vetoes being litigated. Moreover, Levi said that continued
use of the pocket veto during intra- and intersession adjournments, where Congress
has authorized an officer to receive return vetoes, “cannot be justified as consistent
with the provisions of the Constitution.”30 The Department’s chances of success in
court “are remote” and “our position is not constitutionally sound.”31 Under pressure
122 Cong. Rec. 677 (1976).
Reprinted in “H.R. 849,” Hearing before the Subcommittee on the Legislative Process of
the House Committee on Rules, 101st Cong., 1st sess. 125 (1989).
Id. at 126.
Id. at 127.
Id. at 128-29.
Id. at 140.
Id. at 142.
from the lawsuit in Kennedy v. Jones and with the advice of Solicitor General Bork,
the Justice Department announced on April 13, 1976, that it would not attempt to
pocket veto any legislation during congressional recesses. Attorney General Levi
released this statement:
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.32
The accommodation announced by the Ford administration on the pocket veto
was honored by President Jimmy Carter. All of his 18 pocket vetoes were exercised
after Congress had adjourned sine die at the end of the second sessions of the 95th
and 96th Congresses.
Initiatives by President Reagan
Several actions by President Ronald Reagan reopened the pocket veto
controversy. Although President Reagan initially abided by Kennedy v. Sampson to
the extent that he did not exercise the pocket veto during intrasessions,33 he
experimented with pocket vetoes between the first and second sessions.
Bankrupt Florida Firm
After Congress had adjourned on December 16, 1981, at the end of the first
session of the 97th Congress, to return in about 6 weeks, President Reagan pocket
vetoed a special relief bill for a bankrupt Florida firm.34 A private corporation
challenged the constitutionality of this pocket veto, but the case did not result in any
On August 20, 1982, when the Senate debated an adjournment resolution, with
the Senate scheduled to return on September 8, Senator Robert C. Byrd asked Senate
Majority Leader Howard Baker whether President Reagan intended to use the pocket
veto during this intrasession adjournment. Baker replied: “I do not believe the
President will choose that. I cannot assure the Senator that is absolutely impossible,
but having inquired into that it is my distinct impression the President will choose
122 Cong. Rec. 11202 (1976).
Public Papers of the Presidents, 1984 (II), at 1205.
Public Papers of the Presidents, 1981, at 1208.
Presidential Vetoes, 1789-1988, S. Pub. 102-12, at 492. Fidelity Mortgage Investors, No.
75-B-154 (Bkrtcy. S.D. N.Y.) and Lifetime Communities, Inc. v. Administrative Office of
U.S. Courts, No. 81-Civ.-0544 (KTD) (S.D.N.Y.).
either to sign or veto the measure. I do not anticipate a pocket veto . . . .”36 In fact,
the only pocket vetoes exercised by President Reagan in 1982 were those after
Congress adjourned sine die after the second session of the 97th Congress.37
El Salvador Certification
At the end of the first session of the 98th Congress, President Reagan again
exercised his pocket veto power between sessions. On November 30, 1983, he
pocket vetoed a bill to require certification of human rights practices in El Salvador
as a precondition for sending military aid. 38 The House had adjourned sine die on
November 18 and did not return until January 23, 1984––nine weeks later.
A bipartisan group of 33 Members of the House of Representatives filed suit to
require that the bill be published as a public law. A district court upheld President
Reagan’s action. The judge reasoned that the case most pertinent was the Pocket
Veto Case of 1929, which also involved a multi-month sine die adjournment between
the first and second sessions. Although the decision in 1929 had been shaken by
Wright in 1938 and the Kennedy cases, the judge felt obliged to follow the single
holding of the Supreme Court that seemed to him most relevant.39
The district court decision was overturned by the D.C. Circuit, which pointed
out that both the House and the Senate, before adjourning, had expressly arranged for
an agent to receive veto messages from the President: “It is difficult to understand
how Congress could be said to have prevented return of H.R. 4042 simply by
adjourning. Rather, by appointing agents for receipt of veto messages, Congress
affirmatively facilitated return of the bill in the eventuality that the President would
disapprove it.”40 The appellate court also noted that “the line that divides the first
session of a Congress from the second has ceased to have any practical
Supreme Court Action
Just when it appeared that the pocket veto issue might be resolved judicially, in
1987 the Supreme Court held that the controversy over the El Salvador legislation
was moot because the bill had expired by its own terms, regardless of whether it had
been previously enacted into law or not. The dispute was therefore moot.42 Yet the
issue was a live case or controversy in the sense that the pocket veto exercised by
President Reagan was “capable of repetition,” and therefore proper for a court to
128 Cong. Rec. 22567 (1982); see also 128 Cong. Rec. 22586 (1982).
Presidential Vetoes, 1789-1988, S. Pub. 102-12, at 494-95.
Public Papers of the Presidents, 1983, II, at 1636.
Barnes v. Carmen, 582 F.Supp. 163 (D.D.C. 1984).
Barnes v. Kline, 759 F.2d 21, 30 (D.C. Cir. 1985). Emphasis in original.
Id. at 38.
Burke v. Barnes, 479 U.S. 361 (1987).
decide. However, the Court might have used mootness to avoid another difficult
constitutional issue: whether Members of Congress have standing to sue in court.43
Other Reagan Vetoes
In all other cases, President Reagan pocket vetoed bills at the end of the second
session of a Congress after Members had adjourned sine die. Occasionally he would
call attention to the generous scope of his pocket veto, but nevertheless opt for a
regular veto. On August 29, 1984, he announced that he had full constitutional
authority to pocket veto bills during any congressional adjournment, but––“consistent
with” Kennedy v. Sampson––he chose on this occasion to use a regular veto and
returned the bill to the Senate for possible override.44 Similarly, on January 17, 1986,
after stating that the adjournment of Congress had prevented his return of a House
bill, he nevertheless returned the bill to the House, “consistent with the Court of
Appeals decision in Barnes v. Kline, 759 F.2d 21 (D.C. Cir. 1985), cert. pending sub
no. Burke v. Barnes, No. 85-781.”45
Legislative Proposals: 1989-90
With little hope of obtaining clarification from the courts, Congress turned to
legislative remedies. On July 26, 1989, the Subcommittee on the Legislative Process
of the House Committee on Rules held hearings on H.R. 849, a bill to clarify the law
surrounding the President’s use of the pocket veto. On May 9, 1990, the
Subcommittee on Economic and Commercial Law of the House Committee on the
Judiciary also held hearings on pocket veto legislation.
In 1990, the House Rules Committee reported legislation to restrict the pocket
veto to the end of a Congress (adjournment sine die at the end of the second
session).46 The bill was referred to the House Judiciary Committee, which favorably
reported the bill later that year.47 At that point the bill was referred to the Committee
of the Whole House.48 Although the bill was referred to the House Calendar,49 there
was no further action on H.R. 849.
Id. at 366 (Stevens, J., dissenting).
Public Papers of the Presidents, 1984, II, at 1205.
Public Papers of the Presidents, 1986, I, at 64.
H. Rept. No. 417 (Part 1), 101st Cong., 2nd sess. (1990).
H. Rept. No. 417 (Part 2), 101st Cong., 2nd sess. (1990).
136 Cong. Rec. 23476 (1990).
Id. at 25523.
Justice Department Position
At the hearings, the Justice Department expressed its opposition to the
legislation and stated that it would recommend that the President veto such legislation
if it were presented to him. William P. Barr, head of the Office of Legal Counsel in
the Justice Department, testified that Congress “cannot change the meaning of the
Constitution by passing a statute defining what the word adjournment means for
purposes of pocket veto clause.”50 Moreover, he took the position that whenever
either House of Congress adjourned for more than three days, the President could
exercise the pocket veto:
We think that where one House seeks the consent of another House
and goes out on a recess for more than 3 days, you have bicameral action,
which constitutes an adjournment of Congress. Congress is then adjourned
even if one House remains in session because you have had bicameral
Where a House goes out on a brief recess and does not obtain the
consent of the other House because it is not going to be over 3 days, then
Congress remains in session and is not adjourned for purposes of the
pocket veto clause. Congress is not adjourned.51
Barr’s prepared statement is clearer on this point: “the Constitution implies that
any adjournment by the Congress––that is, any adjournment of either house for longer
than three days––gives occasion for a pocket veto.”52
In reaching this conclusion, Barr identified two schools of thought on the pocket
veto. The first one, which he said was the basis for the pocket veto legislation (H.R.
849), is what he called “the ducking Congress school of thought.” In this sense, the
pocket veto clause protected the President when Congress submitted legislation to
him and adjourned to “evade service of process, so to speak.” Under this theory, all
Congress had to do was “provide a mailbox and a registered agent to accept service
Immediate Consideration of a Veto?
Barr described a second purpose of the pocket veto clause, and that was the
framers’ intent “to have the Legislature present with the capacity to give immediate
consideration” to a President’s veto:
They wanted a process whereby the confrontation between the
Executive and the Legislature, which they considered to be a momentous
occasion, very important, solemn occasion, the President has a solemn duty
“H.R. 849,” Hearing before the Subcommittee on the Legislative Process of the House
Committee on Rules, 101st Cong., 1st sess. 55 (1989).
Id. at 58.
Id. at 61.
Id. at 56.
to review the legislation. He is given 10 days to do it. When he vetoes,
they wanted again this confrontation to be capable of immediate resolution,
immediate consideration in Congress. . . .
So we think that part of the rationale for the pocket veto clause was
the ducking Congress problem, but there was another reason, which was
to eliminate or to minimize periods of uncertainty, to focus the debate . . .
to permit the legislative process to rapidly resolve and immediate address
differences that arose between the Executive and Congress.54
This rationale is not supported by constitutional language or legislative practice.
Article I, Section 7, provides that when a President vetoes a bill and returns it to the
House in which it originated, that House “shall enter the Objections at large on their
Journal, and proceed to reconsider it.” Nothing in congressional proceedings over the
past two centuries suggests that reconsideration must be immediate. On a regular
basis, Congress exercises judgment and discretion on the timing of reconsideration
and override votes. There is no urgent or compulsory legislative need to test a
The Constitution states that Congress shall “proceed to reconsider” a President’s
veto. It does not say that Congress shall immediately proceed, and there is no
requirement that reconsideration produce a vote. The Constitution provides: “If after
such 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.”
This language implies that if Congress, after reconsideration, does not agree to pass
the bill, no action is necessary. The veto stands unchallenged. Such has been the
uniform interpretation of Congress.
Over the first 50 years of reconsidering vetoes (1792-1842), Congress usually
reconsidered a veto within a day or two, but the record shows that Members of the
House and Senate concluded that an immediate override vote was not required by the
Constitution. Depending on various factors and circumstances, to be determined by
each House, the vote could be delayed.
The first veto was by President George Washington on April 5, 1792. The veto
message was received by Congress, the presidential objections read and entered in the
Journal, and the House of Representatives resolved that “to-morrow be assigned for
the reconsideration, of the said bill, in the mode prescribed by the Constitution of the
United States.”55 The last 11 words appear to suggest that the designation of
tomorrow would satisfy the “mode prescribed by the Constitution.” However,
subsequent legislative debates make it clear that the “mode” merely referred to the
requirement for a two-thirds majority, the determination of votes by yeas and nays,
and the entering into the Journal of the names of the persons voting for and against
Id. at 57.
Annals of Cong., 2nd Cong., 1st-2nd sess. 539 (1792).
There were no vetoes by Presidents John Adams and Thomas Jefferson. After
President Madison vetoed a bill on February 21, 1811, legislators explored the extent
to which a vote to override the President could be delayed. When Representative
Burwell Bassett suggested that the veto message be referred to a select committee,
Speaker Joseph Varnum objected “that the article on the Constitution on this subject
required that the House should proceed to a reconsideration of the bill.” Bassett
replied that although the Constitution called for reconsideration of a bill when
returned, “the mode of reconsideration was not prescribed; and it might as well be by
reference to a select committee as in any other mode.”56 In this case, the override
vote occurred two days later, on February 23.
Madison’s second veto occurred on February 28, 1811, and the override vote
took place two days later. After his third veto on Friday, April 3, 1812, the House
of Representatives ordered that reconsideration occur “to-morrow.”57 Later on
Friday the House considered an issue that required secrecy and the clearing of the
galleries. Secret deliberations continued on Saturday, April 4, with no action on the
vetoed bill. Reconsideration did not occur until Wednesday, April 8.
On Monday, January 30, 1815, Madison vetoed a bill and returned it to the
Senate. It was ordered that “to-morrow, at twelve o’clock, the Senate will proceed
to consider the bill.”58 The Senate reconsidered the bill on January 31, but after the
reading of the bill further consideration was postponed until February 2, at which
point the veto was sustained. Madison’s last veto was on March 3, 1817, and
sustained by the House on that same day. 59
President James Monroe vetoed one bill, issuing a veto message on Saturday,
May 4, 1822. On Monday, May 6, Representative Bassett moved to refer the bill to
the Committee of the Whole. The House rejected his motion and sustained the veto.60
President John Quincy Adams vetoed no bills. President Andrew Jackson vetoed 12
bills, of which five were regular vetoes and seven were pocket vetoes. Although
reconsideration was prompt on four of the vetoes, Senator Daniel Webster explained
the need for legislative judgment depending on the nature of the bill:
The Constitution prescribes that the House shall proceed to this decision
thereupon. It was the practice of Congress to give a proper time for the
transcript of the message, and for a respectful consideration of the subject.
In cases of less importance, it was the custom to proceed immediately to
the decision. But, in this case [involving the U.S. Bank], it was respectful
to the President, to the length of the paper which had been read, to the high
character of the various topics which it embraced, and to the general
importance of the subject, that the Senate should assign such day and hour
Annals of Cong., 11th Cong., 3rd sess. 983-84 (1811).
Annals of Cong., 12th Cong., 1st sess. 1252 (1812).
Annals of Cong., 13th Cong., 3rd sess. 191 (1815).
Annals of Cong., 14th Cong., 2nd sess. 1055-63 (1817).
Annals of Cong., 17th Cong., 1st sess. 1874-75 (1822).
for taking the message into consideration, as would be agreeable under the
Jackson’s last regular veto was sent to the Senate on Friday, June 10, 1836.
However, the veto message was not taken up until Wednesday, June 22. After
extensive debate the question of overriding the veto was laid on the table. Finally, on
Monday, June 27, the Senate voted to sustain the veto. This was the longest delay
thus far in reconsidering a bill: 14 days (excluding Sundays).62
In 1842, the House voted to refer a veto by President John Tyler to committee.
The veto message was sent to the House on Tuesday, August 9, with consideration
scheduled for the following day.63 On August 10, Representative John Quincy Adams
moved that the veto message be referred to a select committee with instructions to
report to the House. Representative A. Lawrence Foster objected to the motion on
constitutional grounds, arguing that “it was not competent to make a motion to refer.”
Speaker John White “was understood to overrule the objection,” pointing out that
“the House alone had control of the matter, and the House could lay it on the table,
or send it to either a select committee or a Committee of the Whole House.”
Representative Joseph Underwood agreed, noting that a veto message might refer to
certain facts “of which Congress had no knowledge when a bill was passed,” and the
House could appoint a committee “to ascertain the truth of the statement, and to
reexamine the facts.” If the committee could investigate matters of fact, “they could
assuredly inquire into matters of opinion, and report on reasoning as well as facts.”
After additional debate, Adams’ motion to refer the veto message to a select
committee was adopted, and on Thursday, August 11, the 13 members of the select
committee were named. A motion to take up the vetoed bill for the purpose of
reconsideration was rejected.64 The select committee reported on Tuesday, August
16, and on the following day the veto was sustained.65
Subsequent override votes were delayed by much longer periods. Although
President Franklin Pierce vetoed a bill on May 3, 1854, the override vote did not
occur until more than two months later, on July 6. A Pierce veto of August 4, 1854
was not acted upon until December 6, 1854, but the delay in this case resulted from
the congressional adjournment from August 7 to December 4. In 1856, Congress
took more than two months to schedule an override of a Pierce veto that occurred on
May 19. The Senate overrode the veto on July 7 and the House overrode the veto
a day later. No recess or adjournment interrupted this period.
A lengthy delay occurred under President Ulysses S. Grant. On January 11,
1870, he vetoed a private relief bill. The Senate overrode the veto on May 31, a delay
of more than four and a half months, and the House sustained the veto on June 22.
Cong. Debates, 22nd Cong., 1st sess. 1220 (1832).
Cong. Globe, 24th Cong., 1st sess. 435, 460, 469 (1836).
Cong. Globe, 27th Cong., 2nd sess. 867-68 (1842).
Id. at 873, 875, 877, 878.
Id. at 894-901, 906.
Both Houses were in session throughout this period. In the case of a Grant veto of
March 28, 1872, laid before the House, no action had been taken by the time
Congress adjourned on June 10. The next session began on December 2. The House
voted to override on January 18, 1873, but the Senate referred the bill to its
Committee on Claims and took no further action.
If the President were to veto a bill in the early months of a Congress, nothing
would require Congress to challenge the veto promptly. It could choose to override
the veto at any time during that session, or even wait for some opportunity in the
second session, so long as the override effort occurred during that Congress.
The Three-day Rule
Although the Justice Department argues that the President may exercise the
pocket veto whenever either House adjourns for more than three days, and bolsters
that position by pointing to constitutional language that prohibits a House from
adjourning for more than three days without the consent of the other, there is no
necessary connection between the veto power and the three-day rule that appears in
Article I, Section 5.66 Yet Barr testified that whenever there is “any adjournment by
either or both Houses of more than three days [there is] an adjournment of Congress,”
and therefore an opportunity for a pocket veto.67 During the hearing, subcommittee
chairman Butler Derrick asked Barr: “What makes you think that your bright line [the
three-day rule] is any better than our bright line [sine die adjournment at the end of
the second session]?”68 Derrick explained that H.R. 849 required Congress to have
a properly appointed agent to receive veto messages. Barr regarded the bill’s bright
line as defective by identifying these improbable scenarios: “[s]uppose your agent isn’t
around or is dead or not in the country on the 10th day?”69
During the pocket veto hearing in 1990 before the House Judiciary Committee,
John McGinnis of the Office of Legal Counsel repeated the three-day rule: “Article
I, section 5 of the Constitution states that neither House, during its session of
Congress, shall without consent of the other adjourn for more than 3 days. Thus, we
believe that the Constitution implicitly defines an adjournment of Congress, which
takes place whenever either House goes out for more than 3 days.”70 His prepared
statement notes that the Constitution “implies that any adjournment by the
“Neither House, during the Session of Congress, shall, without the Consent of the other,
adjourn for more than three days, nor to any other Place than that in which the two Houses
shall be sitting.”
“H.R. 849,” Hearing before the Subcommittee on the Legislative Process of the House
Committee on Rules, at 62.
Id. at 84.
“Pocket Veto Legislation,” Hearing before the Subcommittee on Economic and Commercial
Law of the House Committee on the Judiciary, 101st Cong., 2nd sess. 20 (1990).
Congress––that is, any adjournment of either house for longer than three days––gives
occasion for a pocket veto.”71
Members of the House Judiciary from both parties objected to this three-day
analogy. Committee Chairman Jack Brooks (D-Tex.) detailed his reasons for
rejecting the three-day rule, while ranking minority member Hamilton Fish (R-N.Y.)
regarded “the idea of a pocket veto in a 3- or 4-day adjournment [as] just
Pocket Vetoes from 1989 to 2000
On several occasions, Presidents George Bush and Bill Clinton exercised a
pocket veto either between sessions or in the middle of a session. Some of these
actions were challenged by Congress; others were not.
On August 16, 1989, President Bush issued a memorandum of disapproval of a
bill waiving enrollment requirements for the Financial Institutions Reform, Recovery,
and Enforcement Act (FIRREA). He had signed FIRREA (H.R. 1278) when it was
presented to him, and considered the waiver legislation (H. J. Res. 390)
“superfluous.”73 Although the administration considered his action a pocket veto, the
compilation of presidential vetoes prepared by the Senate Library concluded that H.
J. Res. 390 had “become law because of President Bush’s failure to return the
legislation to Congress during a recess period.”74
On November 21, 1989, Speaker Tom Foley and Republican Leader Robert H.
Michel wrote to President Bush to explain the reason for the two bills. H. J. Res. 390
authorized a “hand enrollment” of FIRREA by waiving the requirement that the bill
be printed on parchment. The Treasury Department had requested the hand
enrollment option “to insure that the mounting daily costs of the savings-and-loan
crisis could be stemmed by the earliest practicable enactment of H.R. 1278. In the
end, a hand enrollment was not necessary since the bill was printed on parchment in
time to be presented to you in that form.”75
Although the two House leaders expressed appreciation for Bush’s judgment
that H. J. Res. 390 was ultimately unnecessary, they believed that he should have
acted by a return veto “since the intrasession pocket veto is constitutionally infirm.”
They cited the D.C. Circuit opinion in Kennedy v. Sampson as controlling authority
and asked Bush to join them in urging the Archivist to assign a public law number to
Id. at 25
Id. at 34-35, 38.
Public Papers of the Presidents, 1989, II, at 1090.
Presidential Vetoes, 1989-1996, S. Pub. 105-22, at 6.
136 Cong. Rec. 3 (1990).
H. J. Res. 390. They received a response from Attorney General Dick Thornburgh,
who said that the joint resolution did not become a law, the Archivist had been
instructed by the administration not to treat it as a law, and that the executive branch
believed that Kennedy v. Sampson “was incorrectly decided.”76
On November 21, 1989, at the end of the first session of the 101st Congress,
Congress adopted H. Con Res. 239 to establish rules for the adjournment. Both
chambers noted that the Clerk of the House and the Secretary of the Senate were
authorized to receive messages from the President during periods when Congress was
not in session, and expressed an intent to preserve their constitutional prerogatives “to
reconsider vetoed measures in light of the objections of the President.”77 Any
measure disapproved by the President between the first and second sessions would
be treated as a return bill, subject to congressional overrides, and not as a pocket
On November 30, President Bush exercised what appeared to be a pocket veto
of a bill providing emergency relief for Chinese immigration. He said that the
adjournment of Congress had “prevented my return of H.R. 2712 within the meaning
of Article I, section 7, clause 2 of the Constitution,” citing The Pocket Veto Case as
controlling law. However, because of the questions raised by Kennedy v. Sampson,
he said he was sending the bill with his objections to the Clerk of the House of
Representatives. Thus, although he claimed the constitutional power to exercise a
pocket veto, in fact he handled the matter as a return veto.
On January 23, 1990, the House published the veto message in the
Congressional Record but made plain that it was a regular veto subject to
congressional override. Speaker Tom Foley remarked: “The bill was returned with
the President’s objections to the House in which it originated, his objections have
been entered at large in the Journal, and the House is now in a position to proceed to
reconsider the bill.”78 On the following day, the House voted 390 to 25 to override
the veto. A day later, with a vote of 62 to 37, the Senate failed in its override
attempt. During the debate, Senator William Armstrong said that there was reason
“to believe that all of this debate may be about a statute that has already been
enacted.” He placed in the Congressional Record a legal analysis prepared by the
Senate Republican Policy Committee, which concluded that because of the decisions
by the D.C. Circuit in Kennedy v. Sampson and Barnes v. Kline, President Bush’s
action on the Chinese immigration bill marked an invalid use of the pocket veto
power, and the bill therefore became law within 10 days of being submitted to him.79
Id. at 4.
135 Cong. Rec. 31156 (1989).
136 Cong. Rec. 5 (1990).
Id. at 528 (1990).
The Senate Library treats this veto by President Bush as a regular veto.80 A few days
after the override votes, Senator George Mitchell pointed out that the administration
itself regarded the action by Bush as a regular, or return, veto:
The President and administration officials lobbied hard and successfully for
votes. They would not have had to do so if the act was already a nullity
because it had been pocket vetoed last November, and if the President’s
decision to send it back to the Congress was only a gesture.81
Udall Scholarship Fund
President Bush provoked another pocket veto dispute when he issued a
memorandum of disapproval on December 20, 1991, of a bill to create a Morris K.
Udall scholarship fund (S. 1176). The veto occurred after the Senate recessed from
November 27, 1991 to January 3, 1992. Bush stated in his veto message: “Because
the Congress is adjourned, this means that this bill will not become a law.”82
Instead of treating the pocket veto as a regular veto and taking an override vote,
the Senate tried a different strategy. On February 4, 1992, it passed similar legislation
(S. 2184) that included a section repealing S. 1176, implying that the Bush pocket
veto was invalid and that S. 1176 had become law.83 After the House passed S. 2184
on March 3, 84 President Bush signed the bill into law. Section 2 of the bill contained
this language: “The Morris K. Udall Scholarship and Excellence in National
Environmental Policy Act, S. 1176, One Hundred Second Congress, is hereby
repealed.”85 However, in signing the bill, Bush remarked: “S. 2184 purports to
‘repeal’ S. 1176, passed in the last session of the Congress and presented to me in
December. Because the bill came to me during an adjournment of the Congress and
I withheld my signature, S. 1176 never became law. Therefore, the section of S. 2184
purporting to repeal S. 1176 can have no effect.”86
President Clinton vetoed no bills during the 103d Congress (1993-95). During
the 104th Congress (1995-97) he vetoed 17 bills but all were regular vetoes. In the
105th Congress (1997-99), again there were no pocket vetoes. All vetoes were of the
return type. Only in the 106th Congress (1999-2001) did President Clinton resort to
the pocket veto, and he did this in his final year in office. In one instance, with regard
to the bankruptcy reform bill (H.R. 2415), the pocket veto came at the end of the
Presidential Vetoes, 1989-1996, at 2.
136 Cong. Rec. 913 (1990).
Public Papers of the Presidents, 1991, II, at 1651.
138 Cong. Rec. 1389-93 (1992).
Id. at 4078-82.
106 Stat. 78, Sec. 2 (1992).
Public Papers of the Presidents, 1992-93, I, at 473.
106th Congress, after Congress had adjourned sine die. In three other instances,
however, the “pocket vetoes” (placed in quotation marks here because they were
returned to Congress) came in the middle of a session.
Marriage and Death Tax Bills
On August 5, 2000, President Clinton invoked the “protective return” by vetoing
the Marriage Tax Relief Reconciliation Act of 2000. He claimed that the summer
break of Congress (from July 27 to September 6) “prevented my return” of the bill
within the meaning of the Constitution as interpreted by The Pocket Veto Case. Yet
he added this qualification: “In addition to withholding my signature and thereby
invoking my constitutional power to “pocket veto” bills during an adjournment of the
Congress, to avoid litigation, I am also sending H.R. 4810 to the House of
Representatives with my objections, to leave no possible doubt that I have vetoed the
measure.”87 Similarly, on August 31 he “pocket vetoed” the Death Tax Elimination
Act of 2000 and appended the same qualification.88
On September 6, the House treated the two veto messages as return vetoes, not
pocket vetoes. In placing the veto messages in the Congressional Record, the
Speaker pro tempore remarked:
Consistent with the action of Speaker Foley on January 23, 1990, when in
response to a parliamentary inquiry the House treated the President’s return
of an enrolled bill with a purported pocket veto of H.R. 2712 [the Chinese
immigration relief act] of the 101st Congress as a “return veto” within the
meaning of Article I, Section 7, clause 2 of the Constitution, the Chair,
without objection, orders the objections of the President to be spread at
large upon the Journal and orders the message to be printed as House
On September 7, Speaker Dennis Hastert and Democratic Leader Richard
Gephardt wrote to President Clinton, expressing their views on the scope of the
pocket veto. They pointed to President Bush’s attempt during the 101st Congress to
exercise a pocket veto, even though he returned the bill to Congress for a legislative
override. The two leaders told Clinton: “Your allusion to the existence of a pocketveto power during even an intrasession adjournment continues to be most troubling.
We find that assertion to be inconsistent with your previous use of the return-veto
under similar circumstances but without similar dictum concerning the pocket-veto.”90
They noted that on January 9, 1996, when Clinton vetoed the welfare reform bill
36 Weekly Comp. Pres. Doc. 1794 (August 5, 2000).
Id. at 1986-87.
146 Cong. Rec. H7240 (daily ed. September 6, 2000).
Id. at E1523 (daily ed. September 19, 2000).
(H.R. 4)––an action that took place between the first and second sessions of the 104th
Congress––the veto message did not include dictum concerning the pocket veto.91
Congress treated both of the Clinton “pocket vetoes” as regular vetoes, subject
to override votes. On September 7, the House voted 274 to 157 to override the veto
of the death tax bill, short of the two-thirds needed for an override.92 During the
debate, no one referred to Clinton’s action as a pocket veto. All legislators accepted
it as a regular veto. On September 13, the House took up the veto of the marriage
tax bill, and again no Member regarded Clinton’s disapproval memo as a pocket veto.
The vote of 270 to 158 fell short of the necessary two-thirds majority. 93
In early November 2000, both Houses adjourned for the national elections. The
Senate adjourned November 2 and returned November 14; the House adjourned
November 3 and returned November 13. During that intrasession adjournment,
President Clinton on November 4 vetoed the intelligence authorization bill (H.R.
4392). He again added the dictum of “protective return”: claiming pocket veto
authority but returning the bill to the House for an override effort.94 Instead of
attempting an override, the House chose to vote on a substitute bill (H.R. 5630) that
remedied an issue raised by Clinton in his veto message. The substitute bill deleted
the provision that Clinton objected to and became law.95
The scope of the pocket veto power has been in a state of tension ever since
President Nixon pocket vetoed the Family Practice of Medicine Bill in 1970. As a
result of court cases and executive-legislative accommodations, it appeared that an
agreement had been reached during the Ford and Carter administrations, limiting the
pocket veto to the end of the second session of a Congress, after Congress had
adjourned sine die, provided that Congress has instructed legislative agents to receive
presidential messages. That accommodation has been disrupted in the past three
administrations of Presidents Reagan, Bush, and Clinton, who invoked the pocket
veto between the first and second sessions and at times in the middle of a session.
The status of these “pocket vetoes” remains unclear because Presidents claim the
pocket veto power while at the same time they return the bill to Congress for a
possible override. In a number of cases, Congress has taken votes in an effort to
override these vetoes.
Id. For veto message, see Public Papers of the Presidents, 1996, I, at 22-23.
146 Cong. Rec. H7335 (daily ed. September 7, 2000).
Id. at H7509-20 (daily ed. September 13, 2000).
Id. at H11853 (daily ed. November 13, 2000).
Id. at H11854, H11864 (statements by Rep. Goss); P.L. 106-567 (December 27, 2000),
114 Stat. 2831 (2000).
Congress has considered legislation to define “adjournment” to mean sine die
adjournment at the end of a Congress. Such legislation is likely to be vetoed by a
President. Although the constitutional analysis of the Justice Department has not
been consistent in recent decades, it would probably recommend that a President veto
any bill that attempted to define the meaning of “adjournment.” Even if some
Presidents (Ford and Carter) are willing to accept a limitation on their pocket veto
powers, their successors might insist on a broader definition of presidential power.
Congress could take other actions to protect its prerogatives during a recess or
adjournment. It could instruct legislative officers in the House and the Senate to
present a bill to the President nine days before the end of any recess or adjournment.
In a letter addressed to a Member of the House on May 17, 1990, John O. McGinnis
of the Office of Legal Counsel in the Justice Department pointed out that a bill is not
subject to the Pocket Veto Clause whenever Congress takes a brief adjournment, even
though in this memo McGinnis reaffirms the three-day rule. He notes that the pocket
veto operates “only if the tenth day after presentment falls during an adjournment.”
In that sense, the pocket veto “is not a power of the President that he exercises
affirmatively. Rather, pocket vetoes happen automatically on the tenth day after
presentment if the President has not signed the bill.” Here McGinnis refers to the
power of Congress to decide when to send bills to the President: “Thus, the Court’s
reading of the Adjournment Clause requires, at most, attention to the scheduling of
presentments, so that the tenth day after presentment does not fall during an
adjournment of either House that is longer than three days.”96
14 Op. O.L.C. 103, 106 (1990).
Bellamy, Calvin. “The Growing Potential of the Pocket Veto: Another Area of
Increasing Presidential Power,” 61 Illinois Bar Journal 85 (1972).
Cohen, Harold. “Validity of Pocket-Veto,” 10 Boston University Law Review 76
Condo, Joseph A. “The Veto of S. 3418: More Congressional Power in the
President’s Pocket?,” 22 Catholic University Law Review 385 (1973).
Derrick, Butler C., Jr. “Stitching the Hole in the President’s Pocket: A Legislative
Solution to the Pocket-Veto Controversy,” 31 Harvard Journal on Legislation 371
Dumbrell, John W. and John D. Lees. “Presidential Pocket-Veto Power: A
Constitutional Anachronism?,” 28 Political Studies 109 (1980).
Hoff, Samuel B. “The Presidential Pocket Veto: Its Use and Legality,” 6 Journal of
Policy History 188 (1994).
Jorgenson, John H. “Pocket Veto Rolls behind the Eight Ball,” 60 American Bar
Association Journal 347 (1974).
Kass, Benny L. “The Pocket Veto: An Elusive Bone of Contention,” 57 American
Bar Association Journal 1033 (1971).
Keeffe, Arthur John, with John Harry Jorgenson. “Solicitor General Pocket Vetoes
the Pocket Veto,” 61 American Bar Association Journal 755 (1975).
Kennedy, Edward M. “Congress, the President, and the Pocket Veto,” 63 Virginia
Law Review 355 (1977).
Miller, Arthur Selwyn. “Congressional Power to Define the Presidential Pocket Veto
Power,” 25 Vanderbilt Law Review 557 (1972).
Note. “The Presidential Veto Power: A Shallow Pocket,” 70 Michigan Law Review
_______. “The Veto Power and Kennedy v. Sampson: Burning a Hole in the
President’s Pocket,” 69 Northwestern University Law Review 587 (1974).
“Pocket Veto Legislation,” report by the Committee on Federal Legislation, 29
Record of the Association of the Bar of the City of New York 724 (1974).
Pope, John Houston. “The Pocket Veto Reconsidered,” 72 Iowa Law Review 163
Serven, Abram R. “The Constitution and the ‘Pocket Veto,’” 7 New York University
Law Quarterly Review 495 (1929).
Spitzer, Robert J. The Presidential Veto: Touchstone of the American Presidency.
Albany, N.Y.: SUNY Press, 1988. See pp. 105-19, 156-57.
U.S. Congress. “Report on Pocket Veto,” H. Doc. No. 493, 70th Cong., 2nd sess.
________. “The Pocket Veto Power,” Hearing before Subcommittee No. 5 of the
House Committee on the Judiciary, 92nd Cong., 1st sess. (1971).
________. “Constitutionality of the President’s ‘Pocket Veto’ Power,” Hearing
before the Subcommittee on Separation of Powers of the Senate Committee on the
Judiciary, 92nd Cong., 1st sess. (1971).
_______. “H.R. 849 [A bill to clarify the law surrounding the President’s use of the
pocket veto],” Hearing before the Subcommittee on the Legislative Process of the
House Committee on Rules, 101st Cong., 1st sess. (1989).
_______. “Pocket Veto Legislation,” Hearing before the Subcommittee on Economic
and Commercial Law of the House Committee on the Judiciary, 101st Cong., 2nd
U.S. Department of Justice. “Pocket Veto,” 40 Opinions of the Attorneys General
_______. “Pocket Veto Clause,” 14 Opinions of the Office of Legal Counsel 103
Vose, Clement E. “The Memorandum Pocket Veto,” 26 Journal of Politics 397