death of President Roosevelt. It also would apply where an outgoing President does not approve legislation presented to him less than 10 days before the end of his term. (Sec. 302(d).)

It states legislatively that the President's authority to approve legislation is not affected by the adjournment of Congress. This adopts a 1932 Supreme Court opinion which overcame a custom that had existed for almost 150 years. (Sec. 302(c).)

The practices of past Presidents in times when the Congress_was on a different schedule should not determine our course today. I am confident that members of the subcommittee will approach the task of spelling out the veto powers of the President, mindful of the importance of the issues raised to the separation of powers under our constitutional form of government.

Mr. Poff, do you wish to make a statement?

Mr. POFF. Thank you Mr. Chairman.

The chairman has defined the central issue, as he concedes it to be, and without at this time conceding or challenging the definition ĺ suggest that before the central issue itself can be resolved, a threshold decision must be made; namely: Can the central issue itself be resolved by the Congress by simple statutory enactment? Or must it be resolved by the courts? Or, in the alternative, by the process of constitutional amendment?

I will return to the threshold decision before I conclude, but in the meantime, and briefly, let me attempt to define the central issue as I concede it to be.

The veto power must be considered in two distinct time frames. First, what are the President's options when he receives the bill from the Congress, and Congress remains in session for a period of 10 days, and, second, what are the President's options when he receives the bill from the Congress and the Congress adjourns before the expiration of the 10-day period.

Now, in the first time frame, I suppose it is accurate to say that the President has three options.

First, he may sign the bill into law. Second he may allow the bill to become law by allowing the 10-day period to expire without his signature. Or, third, he may forward what I call an affirmative veto, and a message detailing his reasons to the House in which the bill originated.

Now, in the second time frame he has two options.

First, he may sign the bill into law, either before or after the Congress adjourns. Or, second, he may veto the bill.

Now, we are primarily concerned here with the second time frame. The question which must be and is really when does "adjournment"

occur?

Does adjournment occur only when the second and final session of the Congress adjourns sine die, or also when the first annual session of Congress adjourns? I suggest the Pocket Veto case has pretty well resolved that question so that the adjournment may come at the end of the first session or at the end of the second session.

7

Second, does an adjournment occur when one House alone adjourns, or must both Houses adjourn? The Pocket Veto case might be cited for the proposition that the adjournment of one House sine die is sufficient. Third, must the adjournment be sine die, or may it also be an adjournment which ends at some point beyond the expiration of the 10-day period, providing I suggest it is longer than 3 days. Accordingly, it seems to me the central issue which remains to be resolved is this: When one House with the concurrence of the other adjourns for more than 3 days, and the period of adjournment extends beyond the expiration of the 10-day period available to the President, does the President, for reasons of his own, if he disapproves the bill, have the opportunity to return an affirmative veto to the House where the bill originated or is his only option at that point a pocket veto?

Now, to return to the threshold decision, as to how the central issue shall be resolved. It seems clear to me, Mr. Chairman, that when the power of conflict is between the legislative branch of the Government and the executive branch of the Government, the conflict should be resolved then by the judicial branch of the Government, or by the process of constitutional amendment.

In conclusion, it should be noted parenthetically that no matter how we may decide that question or the central issue itself, unless we choose the route of constitutional amendment, the Supreme Court, the final arbiter of the Constitution and the laws enacted under it, will be the final authority to resolve the central issue definitively. I thank you, Mr. Chairman, for the opportunity to speak briefly my thoughts on the question for the moment.

Chairman CELLER. Our first witness is the distinguished Representative from Pennsylvania, Mr. Fred B. Rooney.

STATEMENT OF HON. FRED B. ROONEY, A U.S. REPRESENTATIVE IN CONGRESS FROM THE STATE OF PENNSYLVANIA

Mr. ROONEY. Mr. Chairman and members of the Judiciary Subcommittee, my purpose in appearing before you today is to lend my full support to the legislation introduced by my colleagues, Mr. Celler and Mr. McCulloch, to spell out the pocket veto power of the President.

My own interest in the matter stems, as you may know, from the pocket veto during the 5-day Christmas recess least year, of the Family Practice of Medicine Act, of which I was the original sponsor here in the House. I think it quite fitting that the committee consider clarification of the President's power during such an adjournment of Congress. The term "adjournment" in the Constitution applies to only one body, and no body could be better able to determine what an adjournment is than the Congress itself.

On January 26, 1971, Senator Ervin, as chairman of the Judiciary Subcommittee on Separation of Powers, held a roundtable discussion to examine the pocket veto of two bills approved by the 91st Congress.

There arose among the participants at times a substantial difference of opinion on interpretation of the various precedents for use of this form of veto. The basic intent of the Constitution seemed clear, however that in ordinary circumstances legislation which the President disapproves must be returned to Congress within 10 days, accompanied by a veto message, so that Congress will have an opportunity to override the veto. The purpose of the pocket veto, then, is to cover the situation in which an adjournment of Congress makes it impossible for the President to return a vetoed bill to Congress for reconsideration. Under article I, section 7, the Constitution first, by requiring either assent or disapproval, provides the President with an opportunity to participate in the legislative process, and second, provides the Congress with the power to enact legislation over the President's veto by a two-thirds vote of each House.

The Constitutioual Convention, in accordance with its concept of the balance of power, was careful to provide the President with a partial check on the operation of the legislative branch. The veto power proposed, however, was a qualified, and not an absolute one. No substantiation of an absolute veto power of the Executive can be found in the Constitution.

It is the function of the executive branch to approve or disapprove the decisions of the legislative branch. If a bill is disapproved, it is to be returned to Congress for further consideration. Thus the pocket veto denies the intent of the Constitution by forbidding such return and hence prohibiting Congress from reconsideration of both the bill and the President's objections to it.

Under the bill before you today the term "adjournment" is defined to mean "sine die" adjournment by both the Senate and the House of Representatives terminating a session of Congress. The bill would thus require the President to return disapproved legislation to the Congress until the last constitutional opportunity to reconsider such legislation has expired.

In my mind, this is not only the proper definition of the term "adjournment" but the definition intended by the framers of the Constitution. For many years, of course, the Congress met for only a few short months. The 10 days allowed to the President to consider legislation was obviously written into the Constitution to cover adjournments at the end of a session, since Congress would not be meeting for many months. It was designed to give the President ample time to study the bills passed by Congress, while at the same time preventing any great delay in his consideration of the legislation. It also placed on the Congress, on the other hand, the burden not to adjourn and leave town before the President had sufficient time to either sign or return the bills it had passed.

Today, of course, the situation is quite different. Legislative sessions have become a year-round operation, with brief periods of adjournment the rule, rather than the exception.

I shall not make a detailed presentation of the legal and constitutional arguments on the pocket veto this morning. I would like to point out, however, that I feel the practice of allowing the Executive

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use of the pocket veto during brief adjournments simply because it has been allowed in the past is wrong-as is the idea that Congress, by silently acquiescing, has for some reason given the President this

power.

H.R. 6225 limits the use of the pocket veto to sine die adjournments of both the House and Senate, and clarifies a number of other questions which have arisen during discussion of the recent pocket vetoes. I feel the bill deserves our utmost support, and my colleagues are to be commended for their timely consideration of this matter.

Certainly, Mr. Chairman, the question must be clarified as soon as possible the 92d Congress has scheduled a number of adjournments to a day certain during the present session. If we allow the Executive use of the pocket veto during these short adjournments, a great deal of significant legislation may summarily be disposed of. The Congress must spell out in terms which cannot be distorted by whim the precise role of the pocket veto in our legislative process.

Chairman CELLER. Mr. Rooney, you are familiar with article I, section 8 of the Constitution which empowers the legislative branch to implement by "necessary and proper" laws the provisions of the Constitution.

Now, does that power, encompass all of the provisions of the entire Constitution?

Mr. ROONEY. I would think so.

Chairman CELLER. It would empower the Congress to implement the veto provisions; is that correct?

Mr. ROONEY. Yes.

Chairman CELLER. So you feel that the legislative branch has the right to implement by statute what is meant by veto, and what is meant by adjournment preventing the return of legislation to the Congress?

Mr. ROONEY. I think we should spell this out.

Chairman CELLER. And this need not be necessarily only a function of the judicial branch?

Mr. ROONEY. Yes.

Chairman CELLER. Is that your opinion?

Mr. ROONEY. That is my opinion, Mr. Chairman.

Mr. Chairman, the bill that caused this controversy passed both Houses by an overwhelming vote.

It passed the Senate by a vote of 64 to 1, and it passed the House by a vote of 346 to 2.

The administration opposed the bill in all of the hearings before the Senate and House committees and subcommittees handling it; the President's opposition to this legislation was clearly indicated.

It was stated that the President would come up with some significant proposals in the next legislative session. I have not seen any significant proposals as of today, and I think he denied the Congress the right to implement this much-needed legislation.

Mr. MIKVA. I just want to commend our colleague on his excellent statement.

Did I understand you to say the administration appeared at hearings before both Houses and opposed the legislation, so that the views

of the President were made clear, but that the Congress enacted the bill

nevertheless?

Mr. ROONEY. I might also add, Mr. Mikva, that although the administration opposed the bill, most of the people within the Department of Health, Education, and Welfare favored it.

The legislation would have provided medical schools with a quarter of a billion dollars for setting up programs dealing with family practice. In this country today there are 5,000 communities without family doctors, and this bill would have provided the help the medical schools need to train these doctors.

Mr. MIKVA. Thank you.

Chairman CELLER. Mr. Hungate.

Mr. HUNGATE. I have no questions, Mr. Chairman.

I wish to compliment my colleague on his fine statement.

Chairman CELLER. Mr. Jacobs.

Mr. JACOBS. I have no questions, Mr. Chairman.

I also wish to compliment our colleague on his statement, and I must say he is one of the finest Members of this body.

Thank you.

Chairman CELLER. Mr. Poff.

Mr. POFF. Thank you, Mr. Chairman.

Mr. Chairman, I am pleased to welcome this witness, and I concur with his complete statement.

Chairman CELLER. Mr. Hutchinson.

Mr. HUTCHINSON. Thank you, Mr. Chairman.

Mr. Rooney, in listening to your statement, I believe that I recall your making a point that Congress has within its own power the right to determine when it adjourns, and for how long it adjourns, and so on, and in exercising that power of adjournment, the Congress, even if it were going to adjourn to a date certain, ought not be denied the right to exercise its power to override a veto.

Does that expand beyond your argument too far?

Mr. ROONEY. The bill that caused all of this concern was sent to the President on December 14.

He had 10 days in which to either veto the bill, or sign it into law. On the 24th day of December, he said that the bill was pocket vetoed.

We were not in session on the 24th of December. The House was coming back on the 28th of December, and the Senate was coming back on the 29th of December.

We would have had ample time to override the veto, and I think the President took advantage of the House and the Senate by not giving us the opportunity to either sustain or override the veto.

Mr. HUTCHINSON. I understand, but my point concerns the power of adjournment.

I think we ought not to overlook the provision in the Constitution which admittedly has never been exercised but which does give the President the power, when there is disagreement between the two Houses with respect to the time of adjournment, to adjourn the Congress until such time as he may think proper.