THE POCKET VETO POWER WEDNESDAY, APRIL 7, 1971 HOUSE OF REPRESENTATIVES, SUBCOMMITTEE No. 5 OF THE The subcommittee met at 10 a.m., pursuant to notice, in room 2141, Rayburn House Office Building, Hon. Emanuel Celler (chairman of the committee) presiding. Present: Representatives Celler, Hungate, Jacobs, Mikva, Poff, Hutchinson, and McClory. Staff present: Benjamin L. Zelenko, general counsel, and Franklin G. Polk, associate counsel. Chairman CELLER. The subcommittee will come to order. This morning Subcommittee No. 5 begins hearings on H.R. 6225, a bill introduced by myself, with the cosponsorship of the ranking minority member of the committee, Congressman William M. McCulloch, to implement article I, section 7 of the Constitution, to spell out the pocket veto powers of the President. H.R. 6225, the subject of these hearings, will be placed in the record at this point. [H.R. 6225, 92d Cong., first session] A BILL To implement article I, section 7, of the Constitution Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That title I of the United States Code be amended by adding the following chapter: "305. Enactment without signature; pocket veto. "306. Definition. "§ 301. Presentation to President "Every bill that passes the Senate and the House of Representatives shall, before it becomes a law, be presented to the President of the United States or to a person in the Executive Office of the President previously designated and authorized in writing by the President to receive it. "§ 302. Approval by President "(a) If the President approves a bill presented as provided in section 301 of this title, he shall sign it at the end thereof. "(b) The President shall not make any notation on a bill, so presented, other than his signature and, if he desires, the word 'approved' and the date. (1) "(c) The President's authority to sign a bill, so presented, shall not be affected by the adjournment of the Congress. "(d) The authority to sign a bill, so presented, shall devolve to the President's successor in office. "§ 303. Disapproval by President "If the President does not approve a bill presented as provided in section 301 of this title he shall return it with his objections to the House in which it originated. His objections may be on any basis without limitation. "Return to an officer designated and authorized by the House of Representstives or the Senate respectively, to receive bills so returned prior to adjournment while the body is not actually in session shall constitute a return to that House. Such officer shall call the matter to the attention of that House, through its presiding officer, on the next succeeding day on which it is in session. ❝S 304. Reconsideration "The House to which a bill is returned shall enter the President's objections at large on their Journal and proceed to reconsider it. If after such reconsideration two-thirds of the Members present shall agree to pass the bill, it shall be sent, together with the objections, to the other House by which it shall be likewise reconsidered, and if approved by two-thirds of the Members present, it shall become a law. The votes of both Houses shall be determined by the yeas and nays, and the names of the persons voting for and against the bill shall be entered on the Journal of each House respectively. "S305. Enactment without signature; pocket veto "If any bill is not returned by the President or his successor in office within ten days, Sundays excepted, after it is presented as provided in section 301 of this title, it 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. "S 306. Definition "As used in this chapter, 'adjournment' means an adjournment sine die by both the Senate and the House of Representatives terminating a session of the Congress." The relevant provisions of article I, section 7, read as follows: Every Bill which shall have passed the House of Representatives and the Senate, shall, before it becomes a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. 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 *** 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. It is remarkable to me that despite the great importance these constitutional provisions hold for the distribution of powers between the executive and the legislative branches, to date there has been no legislative implementation. Neither constitutional history nor judicial opinion furnishes satisfactory or conclusive interpretation. The need for guidance and clarity has become more urgent today than perhaps ever before. For example, during the 5 day Christmas recess of the 91st Congress in 1970, the President withheld approval of two bills (S. 3418, the Family Practice of Medicine Act, and H.R. 3571, a private bill authorizing the Foreign Claims Settlement Commission to consider a dispute) which were not returned to the Congress to permit reconsideration. The President's memoranda of disapproval of these two bills will be placed in the record at this point together with copies of an exchange of correspondence between the Department of Justice and Senator Edward M. Kennedy of Massachusetts that discusses the constitutional questions raised. BILL FOR THE RELIEF OF MILOYE M. SOKITCH THE PRESIDENT'S MEMORANDUM OF DISAPPROVAL. DECEMBER 24, 1970 I have withheld my approval from H.R. 3571, "Relief of Miloye M. Sokitch." This bill would permit the Foreign Claims Settlement Commission to consider the claim of Miloye M. Sokitch under the Italian claims program administered by the Commission. The amount determined by the Commission to be due to Mr. Sokitch would be paid by the Secretary of the Treasury out of the Italian Claims Fund. After World War II the Italian Government transferred funds to the United States for the payment of claims of Americans for the loss or damage of their property in Italy during the war. While the statutory authorization for this program originally limited the eligibility of claimants to those who were American nationals at the time their property was lost or damaged, the law was amended in 1958 to include persons, so-called late nationals, who had become nationals of the United States prior to August 9, 1955, and who had filed claims under the original statute prior to September 30, 1956. Mr. Sokitch has a claim of $215,200 for property losses he suffered in Italy during the war. He was not eligible to have his claim considered under the original legislation, however, because he did not become an American citizen until 1947, and he was not eligible to have his claim considered as a late national under the 1958 amendment because he had not filed a claim within the time prescribed in that amendment. In 1967, the Executive Branch recommended general legislation which would have recognized the claims of Mr. Sokitch and approximately 50 other late nationals similarly situated but Congress refused to enact it. At the same times since approximately $1 million was still left in the Italian claims program, Congress did authorize the settlement of the claims of Americans who lost property in area, ceded by Italy after the war, primarily the Dodecanese Islands. I can find no true equities to support approval of H.R. 3571. Mr. Sokitch's claim is no different from those of the 50 other late nationals whose claims for property losses in Italy are barred by existing law. Along with these other claimants, Mr. Sokitch was also denied relief when the general legislation that would have recognized their claims was rejected by Congress. Mr. Sokitch would thus be given special and preferential treatment over a number of other persons whose cases differ in no material respect from his. Further, permitting Mr. Sokitch to have his claim adjudicated and paid, if otherwise found meritorious, would be unfair to those persons whose claims for property losses in the areas ceded by Italy are now under consideration. I am advised that asserted claims under this ongoing program aggregate approximately $24 million as compared with the $1 million available for their payment. Any settlement paid Mr. Sokitch under the preferential provisions of H.R. 3571 will obviously reduce the settlements that can be paid to the persons already eligible for payment under the general provisions of the ceded areas program. For the foregoing reasons, I feel compelled to withhold my approval from H.R. 3571. RICHARD NIXON. The White House BILL TO PROMOTE TRAINING IN FAMILY MEDICINE THE PRESIDENT'S MEMORANDUM OF DISAPPROVAL. DATED DECEMBER 24, 1970. RELEASED DECEMBER 26, 1970 I am withholding my signature from S. 3418, a bill designed to promote training in family medicine. The authority provided in this bill is unnecessary and represents the wrong approach to the solution of the nation's health problems. In my press conference on December 10, I stated that a health program will be one of the highest priority proposals I will submit to the Congress next year. We will propose a broad pattern of reforms to deal with the nation's health problems and needs on a systematic and comprehensive basis. In contrast, the piecemeal bill I am rejecting today simply continues the traditional approach of adding more programs to the almost unmanageable current structure of Federal Government health efforts. The Federal Government already has at least four programs on the books that provide funds which can be used to promote the training of family medicine practitioners. Moreover, the entire concept of American medicine is in an evolutionary stage. There are differing opinions on how best to organize and train personnel to provide comprehensive and continuing care to individuals and families. Under these circumstances, I do not believe it wise to place heavy emphasis on the establishment of separate departments of family medicine in medical schools as S. 3418 would do. This is only one-and not necessarily the most efficientmethod of achieving our national health care objectives, and should not be fixed in law. The White House RICHARD NIXON. December 24, 1970 [Proceedings of the Senate continued from the Record of Thursday, Dec. 31, 1970] THE POCKET VETO Mr. KENNEDY. Mr. President, 2 days ago, I wrote to Attorney General Mitchell requesting clarification of the administration's interpretation of the pocket veto clause of the Constitution. The President sought to use the pocket veto power last week to disapprove S. 3418, the Family Practice of Medicine Act, thereby preventing Congress from having the opportunity to override the veto. This action by the President has raised extremely serious questions about the distribution of power under the Constitution between Congress and the executive branch in the enactment of Federal legislation, and it was for this reason that I sought clarification of the administration's position. Today, I have received a reply from Assistant Attorney General William H. Rehnquist, of the Office of Legal Counsel in the Department of Justice, explaining the position of the administration on this issue. Although a substantial area of disagreement continues to exist over Mr. Rehnquist's interpretation of the clause and my own interpretation, I am delighted by both the thoughtfulness and the promptness of his reply, and I commend the Attorney General, the Assistant Attorney General, and the Department of Justice for their constructive approach to the legal questions raised by the controversy that has erupted over the pocket veto. The principal difference between us is over the interpretation of the Supreme Court's precedents on the pocket veto clause of the Constitution. The Assistant Attorney General relies heavily on the Pocket Veto case, 279 U.S. 655, which was decided in 1929 and which contains dicta apparently giving extremely broad leeway to the President in the exercise of the pocket veto power. It is clear, howeyer, that these dicta of the Supreme Court were not essential to the holding of the case, which involved an adjournment sine die at the end of a session of Congress. I believe that sine die adjournments-either at the end of a Congress or at the end of a session of Congress-are the only situations in which the pocket veto clause of the Constitution was intended to apply. I also believe that this is all that the Supreme Court's decision in the pocket yeto case holds on this issue. As Mr. Rehnquist's letter expressly recognizes, the pocket veto case did in fact involye a sine die adjournment at the end of a session of Congressalbeit a sine die adjournment of only one House. In the circumstances of that case, the House of Representatives had adjourned sine die, and the Senate had adjourned for several months to a date certain. It is difficult, therefore, to understand the logic of Mr. Rehnquist's assertion that the Supreme Court's decision in the pocket veto case has expressly rejected my view that the pocket veto provision is intended only to apply in sine die adjournment situations. Indeed, the specific holding of the pocket veto case is clearly in accord with my view. The House of Representatives had adjourned sine die. Therefore, it was impossible for Congress to act to oyerride the veto. Under the Constitution, a two-thirds majority in both the Senate and the House is required to override a veto. Since the House had adjourned sine die, it was clear that the House could not act to override the veto. and the fact that the Senate's adjournment was not sine die was irrelevant. This is the precise situation in which the Founding Fathers intended the pocket veto clause of the Constitution to apply. Where there is no opportunity for Congress to override a veto by the President, the Constitution resolves the question of the status of legislation enacted within the 10-day period before adjournment by specifying, in effect, that the bill does not become law unless approved by the President. In other circumstances, of course, where a sine die adjournment of Congress does not intervene, a bill becomes law even without the approval of the President, unless the President acts positively to veto it, and thereby triggers the opportunity for Congress to override the veto. Strong additional support for my view is contained in Wrighi v. United States, 302 U.S. 583 (1938), which was decided almost a decade after the pocket veto case, and which substantially clarified the Supreme Court's carlier decision. In the Wright case, which was decided 6-2 by the Court, the majority opinion by Chief Justice Charles Evans Hughes discusses the holding in the pocket veto case as turning on the question of whether there has been a sine die adjournment. As the opinion states: "In the Pocket Veto Case, the Congress had adjourned. The question was whether the concluding clause of paragraph 2 of § 7 of article I was limited to a final adjournment of the Congress or embraced an adjournment of the Congress at the close of the first regular session. The Court held that the clause was not so limited and applied to the latter. [Emphasis in original.] 302 U.S. 583, at 593." The Court's holding in the Wright case appears to be two-pronged. First, the Court clearly held that since the House of Representatives was still in session, even though the Senate had adjourned for a brief period-there was no "adjournment" of Congress within the meaning of the pocket veto clause of the Constitution. Therefore, the Court held, the pocket veto clause was completely inapplicable. Second, the Supreme Court appears to have held in the Wright case that, even though the Senate itself was in a brief 3-day recess, the President was not "prevented" from returning the vetoed bill with his objections to the Senate, within the meaning of the pocket veto clause, since the Secretary of the Senate was available to receive the President's veto message. In other words, it may be argued, there are two requirements before the pocket veto clause comes into play-first, Congress must be in adjournment, and, second, the adjournment must prevent the return of the vetoed bill to Congress. If a 3-day recess of the Senate did not prevent the return of a vetoed bill in the Wright case, it is difficult to believe that the 5-day adjournment of the Senate in the present case prevented the return of the vetoed Family Practice of Medicine Act. One additional point is worth noting. In his letter, Mr. Rehnquist states that not only was the President authorized to exercise a pocket veto on the present legislation, "but if he wished to disapprove it at all, he very probably had no choice as to the form of veto." Surely, if the President wishes to disapprove a bill in such a situation, he can return it to Congress with his veto message in the usual fashion. Even if such a return of the legislation is invalid because Congress is in adjournment, as Mr. Rehnquist appears to be arguing, the President will still be in the position of not having signed the bill. In other words, even if a formal veto is invalid, a pocket veto can still apply, since the bill has not been signed. Moreover, the language of the Wright case may be easily read as implying that the court will sustain the validity of a return of legislation when Congress in in a brief adjournment, within a session. To be sure, as Mr. Rehnquist's letter shows, there is a sporadic practice of pocket vetoes by the President during relatively brief adjournments of Congress. In large part, however, the practice is a tribute to the difficulty of challenging a pocket veto in the courts, rather than a tribute to the validity of administration's reasoning. Now that a substantial legal controversy has begun, it is my hope that this difficulty in mounting an appropriate challenge can be overcome. It is my understanding that a private bill was also subject to a pocket veto by the President during the Christmas recess. Since questions of standing are less likely to thwart |
