1. Under the second clause in § 7 of Article I of the
Constitution, a bill which is passed by both Houses of Congress
during the first regular session of a particular Congress and
presented to the President less than ten days (Sundays excepted)
before the adjournment of that session, but is neither signed by
the President nor returned by him to the House in which it
originated, does not become a law. P.
279 U. S.
672.
2. The Constitution, in giving the President a qualified
negative over legislation -- commonly called a veto -- entrusts him
with an authority, and imposes upon him an obligation, that are of
the highest
Page 279 U. S. 656
importance, in the execution of which it is made his duty not
only to sign bills that he approves in order that they may become
law, but to return bills that he disapproves, with his objections,
in order that they may be reconsidered by Congress. P.
279 U. S.
677.
3. The faithful and effective exercise of this duty necessarily
requires time in which the President may carefully examine and
consider a bill and determine, after due deliberation, whether he
should approve or disapprove it, and, if he disapproves it,
formulate his objections for the consideration of Congress. To that
end, a specified time is given, after the bill has been presented
to him, in which he may examine its provisions and either approve
it or return it, not approved, for reconsideration. P.
279 U. S.
677.
4. The power thus conferred upon the President cannot be
narrowed or cut down by Congress, nor the time within which it is
to be exercised lessened, directly or indirectly. P.
279 U. S.
677.
5. It is just as essential a part of the constitutional
provisions guarding against ill-considered and unwise legislation
that the President, on his part, should have the full time allowed
him for determining whether he should approve or disapprove a bill,
and, if disapproved, for adequately formulating the objections that
should be considered by Congress as it is that Congress, on its
part, should have an opportunity to repass the bill over his
objections. P.
279 U. S.
678.
6. When the adjournment of Congress prevents the return of a
bill within the allotted time, the failure of the bill to become a
law cannot properly be ascribed to the disapproval of the President
-- who presumably would have returned it before the adjournment if
there had been sufficient time in which to complete his
consideration and take such action -- but is attributable solely to
the action of Congress in adjourning before the time allowed the
President for returning the bill had expired. P.
279 U. S.
678.
7. The phrase "within ten days (Sundays excepted)" in the clause
of the Constitution here in question refers not to legislative
days, but to calendar days. P.
279 U. S.
679.
8. The term "adjournment," as used in this constitutional
provision, is not limited to the final adjournment of the Congress.
P.
279 U. S.
680.
9. The determinative question in reference to an "adjournment"
is not whether it is a final adjournment of Congress or an interim
adjournment, such as an adjournment of the first session, but
whether it is one that "prevents" the President from returning the
bill to the House in which it originated within the time allowed.
P.
279 U. S.
680.
Page 279 U. S. 657
10. An interim adjournment of Congress at the end of the first
session, as the result of which, although the legislative existence
of the House in which the bill originated has not been terminated,
it is not in session on the last day of the period allowed the
President for returning the bill, prevents him from returning it to
such House. P.
279 U. S.
681.
11. The "House" to which the bill is to be returned is a House
in session -- sitting in an organized capacity for the transaction
of business and having authority to receive the return, enter the
President's objections on its journal, and proceed to reconsider
the bill; and no return can be made to the House when it is not in
session as a collective body and its members are dispersed. P.
279 U. S.
682.
12. This accords with the long-established practice of both
Houses of Congress to receive messages from the President while
they are in session. P.
279 U. S.
683.
13. There is no substantial basis for the suggestion that,
although the House in which the bill originated be not in session,
the bill may nevertheless be returned, consistently with the
constitutional mandate, by delivering it, with the President's
objections, to an officer or agent of the House for subsequent
delivery to the House when it resumes its sittings at the next
session, with the same force and effect as if the bill had been
returned to the House on the day when it was delivered to such
officer or agent. P.
279 U. S.
683.
14. The above construction is confirmed by the practical
construction given to this provision of the Constitution by the
Presidents through a long course of years, and in which Congress
has acquiesced. P.
279 U. S.
688.
66 Ct.Cls. 26, affirmed.
Certiorari, 278 U.S. 597, to review a judgment of the Court of
Claims dismissing a petition upon the ground that a bill passed by
Congress, upon which the jurisdiction was dependent, had not become
a law.
Page 279 U. S. 672
MR. JUSTICE SANFORD delivered the opinion of the Court.
This case presents the question whether, under the second clause
in section 7 of Article 1 of the Constitution of the United States,
a bill which is passed by both Houses of Congress during the first
regular session of a particular Congress and presented to the
President less than ten days (Sundays excepted) before the
adjournment of that session, but is neither signed by the President
nor returned by him to the house in which it originated, becomes a
law in like manner as if he had signed it.
At the first session of the 69th Congress, Senate Bill No. 3185,
entitled "An Act authorizing certain Indian tribes and bands, or
any of them, residing in the State of Washington, to present their
claims to the Court of Claims," having been passed by both Houses
of Congress and duly authenticated, was presented to the President
on June 24, 1926. On July 3, the first session of the 69th Congress
was adjourned under a house concurrent resolution. [
Footnote 1] The Congress was not again in
session until the commencement of the second session on the first
Monday in December. [
Footnote
2] And neither House of Congress was in session on July 6 --
the tenth day after the bill had been presented to the President
(Sundays excepted).
Page 279 U. S. 673
The President neither signed the bill nor returned it to the
Senate. And it was not published as a law.
Taking the position that the bill had become a law without the
signature of the President, the Okanogan and other Indian tribes
residing in the State of Washington in March, 1927, filed a
petition in the Court of Claims setting up certain claims in
accordance with the terms of the bill. The United States demurred
to the petition. The court sustained the demurrer and dismissed the
petition on the ground that, under the provisions of the
Constitution, the bill had not become a law.
In view of the public importance of the question presented, we
granted the petitioners a writ of certiorari. 278 U.S. 597. And for
like reason, at the request of the Committee on the Judiciary of
the House of Representatives, we granted Mr. Sumners, a member of
that Committee, leave to appear as
amicus curiae. He has
aided us by a comprehensive and forcible presentation of arguments
against the conclusion of the court below.
The clause of the Constitution here in question reads as
follows:
"Every Bill which shall have passed the House of Representatives
and the Senate, shall, before it become a Law, be presented to the
President of the United States; if he approve he shall sign it, but
if not be 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,
Page 279 U. S. 674
unless the Congress by their Adjournment prevent its Return,
in which Case it shall not be a Law. [
Footnote 3]"
The specific question here presented is whether, within the
meaning of the last sentence -- which we have italicized --
Congress, by the adjournment on July 3, prevented the President
from returning the bill within ten days, Sundays excepted, after it
had been presented to him. If the adjournment did not prevent him
from returning the bill within the prescribed time, it became a law
without his signature; but, if the adjournment prevented him from
so doing, it did not become a law. This is unquestioned.
In support of the position that the adjournment did not prevent
the President from returning the bill within the prescribed time,
counsel for the petitioners and the
amicus curiae urge
that the only "adjournment" which prevents the President from
returning a bill within the prescribed time is the final
adjournment of the Congress, terminating its legislative existence
and making it impossible for the President to return the bill for
its reconsideration, and that an adjournment of the first session
of the Congress does not prevent the President from returning the
bill within the prescribed time, since the legislative existence of
the Congress is not terminated, and he may within that time return
the bill to the House in which it originated, although not then in
session, by delivering it, with his objections, to the Secretary,
Clerk, or other appropriate agent of that House, to be held by such
agent
Page 279 U. S. 675
and presented to the House when the Congress resumes its sitting
at the next session -- thereby enabling the Congress to proceed
with the reconsideration of the bill as a part of the unfinished
legislative business carried over from the first session. And it is
also said, by counsel for the petitioners, that the "ten days"
allowed for the return of the bill, may be construed as meaning
"legislative days," that is, days on which the Congress is in
legislative session, and not calendar days, thereby enabling the
President to return the bill within ten days, Sundays excepted,
exclusive of all days on which the Congress was not in legislative
session, even although, by reason of an adjournment, this period
does not expire until after the Congress has resumed its
legislative sittings at the second session.
In support of the position that Congress, by the adjournment on
July 3, prevented the president from returning the bill within the
prescribed time, the Attorney General maintains that the word
"adjournment" includes an interim adjournment as well as the final
adjournment at the end of a Congress; that the words "ten days"
mean calendar days, and not legislative days; that the President
cannot return a bill with his objections to the House in which it
originated except by returning it to the House while in session;
that if, by reason of an adjournment taken by Congress within the
prescribed time, the House in which the bill originated be not in
session on the last of such days and the bill cannot be thus
returned, the President is thereby prevented from returning the
bill within the prescribed time; and that this view is supported by
the practical construction given to the constitutional provision by
the President through a long course of years, in which Congress has
acquiesced.
No light is thrown on the meaning of the constitutional
provision in the proceedings and debates of the Constitutional
Convention; and there has been no decision of
Page 279 U. S. 676
this Court dealing directly with its meaning and effect in
respect to the precise question here involved. And while we have
been cited to various decisions of state courts construing similar
provisions in state constitutions, an examination of them discloses
such a conflict of opinion -- due in some part to differences in
phraseology or their application to the procedure of the state
legislatures -- that, viewed as a whole, they furnish no
substantial aid in the determination of the question here
presented, and a detailed consideration of them here would not be
helpful. For that reason, we shall cite in this opinion only some
that seem most apposite and persuasive in their reasoning.
1. It is earnestly insisted by counsel for the petitioners and
by the
amicus curiae, as the underlying basis of their
contentions, that since clause 2 gives the President merely a
qualified negative over legislation and requires him, if he
disapproves a bill, to return it with his objections to the House
in which it originated so that Congress may have an opportunity to
reconsider it in the light of such objections and pass it by a
two-thirds vote of each House, the provision as to the return of a
bill within a specified time is to be construed in a manner that
will give effect to the reciprocal rights and duties of the
President and of Congress, and not enable him to defeat a bill of
which he disapproves by a silent and "absolute veto," that is, a
so-called "pocket veto," which neither discloses his objections nor
gives Congress an opportunity to pass the bill over them. This
argument involves a misconception of the reciprocal rights and
duties of the President and of Congress and of the situation
resulting from an adjournment of Congress which prevents the
President from returning a bill with his objections within the
specified time. This is illustrated in the use of the term "pocket
veto," which does not accurately describe the situation, and is
misleading in its implications in that it suggests that the
Page 279 U. S. 677
failure of the bill in such case is necessarily due to the
disapproval of the president and the intentional withholding of the
bill from reconsideration. The Constitution, in giving the
President a qualified negative over legislation -- commonly called
a veto -- entrusts him with an authority and imposes upon him an
obligation that are of the highest importance, in the execution of
which it is made his duty not only to sign bills that he approves
in order that they may become law, but to return bills that he
disapproves, with his objections, in order that they may be
reconsidered by Congress. The faithful and effective exercise of
this momentous duty necessarily requires time in which the
President may carefully examine and consider a bill and determine,
after due deliberation, whether he should approve or disapprove it,
and if he disapproves it, formulate his objections for the
consideration of Congress. To that, end a specified time is given,
after the bill has been presented to him, in which he may examine
its provisions and either approve it or return it, not approved,
for reconsideration.
See La Abra Silver Mining Co. v. United
States, 175 U. S. 423,
175 U. S. 455.
[
Footnote 4] The power thus
conferred
Page 279 U. S. 678
upon the President cannot be narrowed or cut down by Congress,
nor the time within which it is to be exercised lessened, directly
or indirectly. [
Footnote 5] And
it is just as essential a part of the constitutional provisions
guarding against ill-considered and unwise legislation that the
President, on his part, should have the full time allowed him for
determining whether he should approve or disapprove a bill, and if
disapproved, for adequately formulating the objections that should
be considered by Congress as it is that Congress, on its part,
should have an opportunity to repass the bill over his
objections.
It will frequently happen -- especially when many bills are
presented to the President near the close of a session, some of
which are complicated or deal with questions of great moment --
that when Congress adjourns before the time allowed for his
consideration and action has expired, he will not have been able to
determine whether some of them should be approved or disapproved,
or, if disapproved, to formulate adequately the objections which
should receive the consideration of Congress. And it is plain that,
when the adjournment of Congress prevents the return of a bill
within the allotted time, the failure of the bill to become a law
cannot properly be ascribed to the disapproval of the President --
who presumably would have returned it before the adjournment if
there had been sufficient time in which to complete his
consideration and
Page 279 U. S. 679
take such action -- but is attributable solely to the action of
Congress in adjourning before the time allowed the President for
returning the bill had expired. Thus, in
La Abra Silver Mining
Co. v. United States, supra, 175 U. S. 454,
this Court said that,
"if, by its action, after the presentation of a bill to the
President during the time given him by the Constitution for an
examination of its provisions and for approving it by his
signature, Congress puts it out of his power to return it, not
approved, within that time to the House in which it originated,
then the bill fails, and does not become a law. [
Footnote 6]"
2. There is plainly no warrant for adopting the suggestion of
counsel for the petitioners -- which is not urged by the
amicus
curiae -- that the phrase "within ten Days (Sundays
excepted)," may be construed as meaning not calendar days, but
"legislative days," that is, days during which Congress is in
legislative session -- thereby excluding all calendar days which
are not also legislative days from the computation of the period
allowed the President for returning a bill. The words used in the
Constitution are to be taken in their natural and obvious sense,
Martin v. Hunter's
Lessee, 1 Wheat. 304,
14 U. S. 326,
and are to be given the meaning they have in common use unless
there are very strong reasons to the contrary.
Tennessee v.
Whitworth, 117 U. S. 139,
117 U. S. 147.
The word "days," when not qualified, means in ordinary and common
usage calendar days. This is obviously the meaning in which it is
used in the constitutional provision, and is emphasized by the fact
that "Sundays" are excepted. There is nothing whatever to justify
changing this meaning by inserting the word "legislative" as a
qualifying adjective. And no President or Congress has ever
suggested that the President
Page 279 U. S. 680
has ten "legislative days" in which to consider and return a
bill, or proceeded upon that theory.
3. Nor can we agree with the argument that the word
"adjournment," as used in the constitutional provision, refers only
to the final adjournment of the Congress. The word "adjournment" is
not qualified by the word "final," and there is nothing in the
context which warrants the insertion of such a limitation. On the
contrary, the fact that the word "adjournment," as used in the
Constitution, is not limited to a final adjournment is shown by the
first clause in section 5 of Article 1, which provides that a
smaller number than a majority of each House may "adjourn" from day
to day, and by the fourth clause of the same Article, which
provides that neither House, during the session of Congress, shall,
without the consent of the other, "adjourn" for more than three
days. And the Standing Rules of the Senate refer specifically to
motions to "adjourn to a day certain" (No. XXII); and the Rules of
the House of Representatives, to an "adjournment" at the end of one
session (No. XXVI). [
Footnote
7]
4. We think that, under the constitutional provision, the
determinative question in reference to an "adjournment" is not
whether it is a final adjournment of Congress or an interim
adjournment, such as an adjournment of the first session, but
whether it is one that "prevents" the President from returning the
bill to the House in which it originated within the time allowed.
It is clear, and, as
Page 279 U. S. 681
we understand, is not questioned, that since the President may
return a bill at any time within the allotted period, he is
prevented from returning it, within the meaning of the
constitutional provision, if, by reason of the adjournment, it is
impossible for him to return it to the House in which it originated
on the last day of that period. It is also conceded, as we
understand, that the President is necessarily prevented from
returning a bill by a final adjournment of the Congress, since such
adjournment terminates the legislative existence of the Congress
and makes it impossible to return the bill to either House. And the
crucial question here presented is whether an interim adjournment
of Congress at the end of the first session, as the result of
which, although the legislative existence of the House in which the
bill originated has not been terminated, it is not in session on
the last day of the period allowed the President for returning the
bill, likewise prevents him from returning it to such House. This
brings us to the specific question whether, in order to return the
bill to the House in which it originated, within the meaning of the
constitutional provision, it is necessary, as the Attorney General
insists, that it be returned to the House itself while it is in
session, or whether, as urged by counsel for the petitioners and by
the
amicus curiae, it may be returned to the House,
although not in session, by delivering it to an officer or agent of
the House, to be held by him and delivered to the House when it
resumes its sittings at the next session.
Clause 2 specifically provides that, if the President does not
approve a bill,
"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."
That is, it provides in the same phrase, and with no change in
definition, that the "House" to which the bill is to be returned is
that which
Page 279 U. S. 682
is to enter the objections on its journal and proceed to
reconsider the bill.
From a consideration of the entire clause, we think that the
"House" to which the bill is to be returned is the House in
session. In
Missouri Pac. Ry. Co. v. Kansas, 248 U.
S. 276,
248 U. S. 280,
248 U. S. 281,
248 U. S. 283,
this Court, in holding that the provision in this clause requiring
a vote of two-thirds of each House to pass a bill over the
President's objections, means two-thirds of a quorum of each House
and not two-thirds of all its members, said
arguendo that
"the context leaves no doubt that the provision was dealing with
the two Houses as organized and entitled to exert legislative
power," that is, the legislative bodies "organized conformably to
law for the purpose of enacting legislation"; and, after stating
that the identity between this provision and that in Article 5 of
the Constitution, giving "two-thirds of both Houses" the power to
submit amendments, makes the practice as to one applicable to the
other, quoted with approval the "settled rule . . . clearly and
aptly stated" by the Speaker, Mr. Reed, in the House, on the
passage of the amendment to the Constitution providing for the
election of Senators by the vote of the people, as follows:
"What constitutes a House? A quorum of the membership, a
majority, one-half and one more. That is all that is necessary to
constitute a House to do all the business that comes before the
House. Among the business that comes before the House is the
reconsideration of a bill which has been vetoed by the President;
another is a proposed amendment to the Constitution; and the
practice is uniform in both cases that, if a quorum of the House is
present, the House is constituted, and two-thirds of those voting
are sufficient in order to accomplish the object. . . ."
Since the bill is to be returned to the same "House," and none
other, that is to enter the President's objections
Page 279 U. S. 683
on its journal [
Footnote 8]
and proceed to reconsider the bill -- there being only one and the
same reference to such House -- it follows, in our opinion, that,
under the constitutional mandate, it is to be returned to the
"House" when sitting in an organized capacity for the transaction
of business, and having authority to receive the return, enter the
President's objections on its journal, and proceed to reconsider
the bill; and that no return can be made to the House when it is
not in session as a collective body, and its members are dispersed.
This is the view expressed in 1 Curtis' Constitutional History of
the United States 486, n. 1, in which it is said:
"This expression, a 'house', or 'each house,' is several times
employed in the Constitution with reference to the faculties and
powers of the two chambers respectively, and it always means, when
so used, the constitutional quorum, assembled for the transaction
of business, and capable of transacting business. This same
expression was employed by the committee when they provided for the
mode in which a bill, once rejected by the president, should be
again brought before the legislative bodies. They directed it to be
returned 'to that House in which it shall have originated' -- that
is to say, to a constitutional quorum, a majority of which passed
it in the first instance. . . ."
This accords with the long established practice of both Houses
of Congress to receive messages from the President while they are
in session.
See Senate Standing Rule XXVIII, cl. 1; House
Rule XL; 5 Hind's Precedents of the House of Representatives, ch.
CXXXVIII, especially sec. 6591, p. 812.
We find no substantial basis for the suggestion that, although
the House in which the bill originated is not in session, the bill
may nevertheless be returned, consistently
Page 279 U. S. 684
with the constitutional mandate, by delivering it, with the
President's objections, to an officer or agent of the House for
subsequent delivery to the House when it resumes its sittings at
the next session, with the same force and effect as if the bill had
been returned to the House on the day when it was delivered to such
officer or agent. Aside from the fact that Congress has never
enacted any statute authorizing any officer or agent of either
House to receive for it bills returned by the President during its
adjournment, and that there is no rule to that effect in either
House, the delivery of the bill to such officer or agent, even if
authorized by Congress itself, would not comply with the
constitutional mandate. The House, not having been in session when
the bill was delivered to the officer or agent, could neither have
received the bill and objections at that time, nor have entered the
objections upon its journal, nor have proceeded to reconsider the
bill, as the Constitution requires; and there is nothing in the
Constitution which authorizes either House to make a
nunc pro
tunc record of the return of a bill as of a date on which it
had not, in fact, been returned. Manifestly it was not intended
that, instead of returning the bill to the House itself, as
required by the constitutional provision, the President should be
authorized to deliver it, during an adjournment of the House, to
some individual officer or agent not authorized to make any
legislative record of its delivery, who should hold it in his own
hands for days, weeks or perhaps months -- not only leaving open
possible questions as to the date on which it had been delivered to
him, or whether it had in fact been delivered to him at all, but
keeping the bill in the meantime in a state of suspended animation
until the House resumes its sittings, with no certain knowledge on
the part of the public as to whether it had or had not been
seasonably delivered, and necessarily causing delay in its
reconsideration which the Constitution evidently intended to avoid.
In short, it was plainly the object
Page 279 U. S. 685
of the constitutional provision that there should be a timely
return of the bill, which should not only be a matter of official
record definitely shown by the journal of the House itself, giving
public, certain and prompt knowledge as to the status of the bill,
but should enable Congress to proceed immediately with its
reconsideration; and that the return of the bill should be an
actual and public return to the House itself, and not a fictitious
return by a delivery of the bill to some individual which could be
given a retroactive effect at a later date when the time for the
return of the bill to the House had expired.
Thus, Attorney General Devens, in a memorandum to President
Hayes, said:
"All these provisions indicate that, in order to enable the
President to return a bill, the Houses should be in session; and
if, by their own act, they see fit to adjourn and deprive him of
the opportunity to return the bill with his objections, and are not
present themselves to receive and record these objections and to
act thereon, the bill cannot become a law unless ten days shall
have expired during which the President will have had the
opportunity thus to return it. There is no suggestion that he may
return it to the Speaker, or Clerk, or any officer of the House;
but the return must be made to the House as an organized body.
[
Footnote 9]"
It is significant that only one attempt has ever been made in
Congress to authorize the President to return a bill when the House
in which it originated was not in session, and that this failed. In
1868, a bill was reported by the Senate Judiciary Committee for
regulating the return of bills by the President. [
Footnote 10] While this specifically
declared that the constitutional provision allowed the President
ten calendar days (Sundays excepted) in which to return a bill not
approved by him, and that the return
Page 279 U. S. 686
of a bill would be prevented by "the final adjournment of a
session" of Congress, although not by an adjournment to a
particular day, it provided that if, at any time within such ten
days, the President desired to return the bill to the house in
which it originated when such house was not sitting, he might
return it to the office of the Secretary of the Senate or Clerk of
the House of Representatives, as the case might be, who should
endorse thereon the day on which such return was made, and make an
entry of the fact of such return in his journal of the proceedings,
and that such return should be deemed a return of the bill to all
intents and purposes. In the debate in the Senate, strong
opposition was expressed to this feature of the bill on
constitutional grounds; [
Footnote 11] and
Page 279 U. S. 687
although it passed the Senate by a majority vote, it was never
reported from the Judiciary Committee of the House of
Representatives, to which it was referred, and thus failed to pass
the Congress. It does not appear that this suggestion has ever been
renewed in Congress.
Page 279 U. S. 688
5. The views which we have expressed as to the construction and
effect of the constitutional provision here in question are
confirmed by the practical construction that has been given to it
by the Presidents through a long
Page 279 U. S. 689
course of years, in which Congress has acquiesced. Long settled
and established practice is a consideration of great weight in a
proper interpretation of constitutional provisions of this
character.
Compare Missouri Pac. Ry. Co. v.
Page 279 U. S. 690
Kansas, supra,
248 U. S. 284;
Myers v. United States,
272 U. S. 52,
272 U. S. 119,
272 U. S. 136;
and
State v. South Norwalk, 77 Conn. 257, 264, 58 A. 759,
761, in which the court said that a practice of at least twenty
years' duration
"on the part of the executive department, acquiesced in by the
legislative department, while not absolutely binding on the
judicial department, is entitled to great regard in determining the
true construction of a constitutional provision the phraseology of
which is in any respect of doubtful meaning."
A memorandum prepared in the office of the Attorney General
showing the results of an exhaustive research of governmental
archives for the purpose of disclosing the practical construction
placed upon the constitutional provision here involved in reference
to so-called "pocket vetoes" was transmitted by the President to
Congress in December 1928, [
Footnote 12] This memorandum -- the accuracy of which is
not questioned -- cites more than 400 bills and resolutions which
were passed by Congress and submitted to the President less than
ten days before a final or interim adjournment of Congress, which
were not signed by the President nor returned with his disapproval.
Of these, 119 were instances in which the adjournment was that at
the end of a session of Congress, as distinguished from the final
adjournment of the Congress. None of these bills or resolutions
were placed upon the statute books or treated as having become a
law; nor does it appear that there was any attempt to enforce them
in the courts until the present suit was brought. Of these
instances, 11 occurred
Page 279 U. S. 691
before the end of President Lincoln's administration, and the
remainder from the end of that administration to the present time.
They arose under the administration of all the Presidents except
ten. These 119 bills and resolutions are thus classified in the
brief of the
amicus curiae: Private relief bills, 36;
pension bills, 19; obsolete purposes, 10; relating to District of
Columbia, 9; relating to personal status, 8; right of way over
Indian and government land, 8; river and harbor bills, 7;
disposition of war stores and government property, 5; reduction of
national debts, 3; and general legislation, 14. It does not appear
that, in any of these instances, either House of Congress in any
official manner questioned the validity and effect of the
President's action in not returning the bill after the adjournment
of the session, or proceeded on the theory that it had become a
law, although neither signed nor returned, until the action was
taken in the House Committee of the Whole in 1927 to which we have
referred. [
Footnote 13] And,
in some instances, new bills were introduced in place of those that
had not been returned. Without analyzing these 119 instances in
detail, we think they show that, for a long series of years,
commencing with President Madison's administration and continuing
until the action of the House Committee of the Whole in 1927, all
the Presidents who have had occasion to deal with this question
have adopted and carried into effect the construction of the
constitutional provision that they were prevented from returning
the bill to the House in which it originated by the adjournment of
the session of Congress, and that this construction has been
acquiesced in by both Houses of Congress until 1927.
6. For these reasons, we conclude that the adjournment of the
first session of the 69th Congress on July 3, 1926, prevented the
President, within the meaning of the constitutional
Page 279 U. S. 692
provision, from returning Senate Bill No. 3185 within ten days,
Sundays excepted, after it had been presented to him, and that it
did not become a law.
The judgment of the Court of Claims is
Affirmed.
* The docket title of this case is
The Okanogan, Methow, San
Poelis (or San Poil), Nespelem, Colville, and Lake Indian Tribes or
Bands of the State of Washington v. United States.
[
Footnote 1]
67 Cong. Rec. pt. 11, pp. 12770, 12885, 13009, 13018, 13100. By
the terms of this resolution, the House of Representatives
adjourned
sine die, and the Senate adjourned to November
10 -- this being the date to which, sitting as a court of
impeachment, it had previously adjourned for the trial of certain
articles of impeachment. 67 Cong. Rec. pt. 8, pp. 8725, 8733. And,
on that date, the Senate, sitting as a court of impeachment, met
and adjourned
sine die. 68 Cong.Rec. pt. 1, pp. 3, 4.
That the adjournment on July 3 was, in effect ,an adjournment of
the first session of the Congress is not questioned.
[
Footnote 2]
68 Cong.Rec. pt. 1, p. 7; Constitution, Art. 1, Sec. 4, Cl.
2.
[
Footnote 3]
The third clause reads as follows:
"Every Order, Resolution, or Vote to which the Concurrence of
the Senate and House of Representatives may be necessary (except on
a question of Adjournment) shall be presented to the President of
the United States; and before the Same shall take Effect, shall be
approved by him, or being disapproved by him, shall be repassed by
two thirds of the Senate and House of Representatives, according to
the Rules and Limitations prescribed in the Case of a Bill."
[
Footnote 4]
Compare People v. Bowen, 30 Barb. (N. Y.) 24, 32, 34;
Lankford v. County Commrs. of Somerset County, 73 Md. 105,
110, 111;
Tuttle v. Boston, 215 Mass. 57, 58, 60, in which
it was aptly said, in a concurring opinion:
"The convention which framed our Constitution designed to
provide for the enactment and enforcement of salutary laws in the
mode best calculated to promote the general welfare. They supposed,
as one of the means of best attaining this end, that the executive
of the State should not only be intrusted with the enforcement of
all laws, but should also be vested with a voice in their adoption.
In distributing the powers of government, they could, if they had
chosen to do so, have authorized the general assembly to adopt laws
independent of all executive action. But to prevent the evils of
hasty, ill considered legislation, they conferred upon the governor
the power to arrest the passage of a bill until his objections
could be heard, and the bill be again considered and adopted. As
the best means of accomplishing this, and of preventing the
adoption of injurious measures, they gave to the governor ten days,
exclusive of Sundays, in which to bestow that careful examination
and consideration so essentially necessary to determine the effects
and consequences likely to flow from the adoption of a new measure.
This is the duty imposed, and it is one that must be performed. And
the time allowed for the purpose cannot be abridged, or the
provision thwarted, by either accident or design. The use of the
whole time given to the governor must be allowed. The Constitution
has spoken, and it must be obeyed."
[
Footnote 5]
Compare Tuttle v. Boston, supra, 60;
People v.
Hatch, supra, 136.
[
Footnote 6]
And, if Congress so desires, the same bill may be reintroduced
and passed when Congress resumes its session, and after receiving
the due consideration of the President, if returned with his
objections, may be then passed by the requisite vote in both
Houses.
[
Footnote 7]
The view that the "adjournment" contemplated in the
constitutional provision is the final adjournment of Congress, and
not an interim adjournment, appears to have been expressed in
behalf of Congress for the first and only time in a report made by
the Judiciary Committee of the House of Representatives in 1927 (H.
Rep't No. 2054, 69th Cong., 2d Sess.). This was followed by the
Chairman of the Committee of the Whole in overruling a point of
order made against a provision in an appropriation bill that
presented this question; and no appeal was taken from this ruling.
68 Cong.Rec., pt. 5, pp. 4932-4937.
[
Footnote 8]
The journal is the record that each House is required to keep of
its own proceedings. Const., Art. I, sec. 5, cl. 3.
[
Footnote 9]
Quoted in an opinion of Attorney General Miller, 20
Op.Attys.Gen. 503, 506.
[
Footnote 10]
S. 366, 40 Cong., 2d sess.
[
Footnote 11]
In the debate in the Senate, the constitutional objections to
the provision authorizing the President to return a bill to an
officer of the Senate or the House of Representatives when they
were not sitting were clearly and, as we think, convincingly
expressed.
Thus, Senator Davis said:
"[The] Constitution requires that, if the President does not
approve a bill, he shall return it with his objections to the House
in which it originated; this bill provides a different mode of
disposing of that bill in case Congress has temporarily taken a
recess or an adjournment. It dispenses with the requisition of the
Constitution that the bill shall be returned to the House, and
directs that it be returned to the officer of the House if the body
is not in session. I do not believe it is competent for Congress to
make any such change as that. . . . Of course, if [the President]
is to return the bill to the House, the House must be in session,
because it is not a House unless in session in the sense in which
the Constitution requires the bill to be returned to the House by
the President with his objections. . . . I think it is the duty of
the President, in the plain language of the Constitution, to return
the bill not to the Secretary or Clerk of either House, but to the
House itself. That is the unambiguous and plain language of the
Constitution. . . . It is returning it to the Senate or the House
of Representatives in session, because when it is returned, it is
to be at once considered again. The Constitution contemplates that,
simultaneously with the return of the bill to the House in which it
originated, the House may take up the matter for consideration. . .
. I take the position that to return the bill to the Clerk of the
House of Representatives, if it originated there, or to the
Secretary of the Senate, if it originated in the Senate, when those
bodies are not in session is not a return of the bill to the House
in which it originated. It is the duty and the right of the
President to communicate to the House, and not to a ministerial
officer of the House. To enable him to communicate to the House, it
must necessarily be in session, because he cannot communicate with
either House when it is in any other situation than in actual
session. It must be assembled and in actual session. . . . I think,
sir, that the Executive may not only claim it as a right, but the
House in which a bill originates may claim it as the performance of
a duty by him to that House, and the people of the country may
claim it as the performance of a duty by him, that he shall return
the bill with his objections, not, in vacation, to the Clerk or to
the Secretary of the Senate or House of Representatives, but to the
body itself, and to enable him to perform that duty that body must
necessarily be in session."
Cong. Globe, 40th Cong., 2d Sess., Pt. 2, pp. 1372, 1374,
1405.
Senator Bayard said:
"But, Mr. President, there is an additional objection which, to
my mind, is all-powerful. The committee propose . . . that if
Congress is not in session during the ten days or at the end of the
ten days, the President may send the bill to the office of the
Secretary of the Senate or the Clerk of the House of
Representatives, according to the House in which the bill may have
originated. There is no such provision in the Constitution, and the
settled usage of this Government, without a single exception from
its foundation, is that no communication is made by the Executive
to either House except to the House in session, and that usage
ought to have a controlling influence to exclude the idea which is
contained in the provision of the bill that I am now referring to.
. . . But further, the very object of the clause looks to the fact
that the bill should be returned during the session of the House in
which it originated. It looks, if I may so speak, to immediate
action on the part of Congress -- at all events, it looks to giving
to Congress the right of immediate action as soon as the objections
of the President are received. The Houses are to proceed to
consider the objections; they are to spread them at large on the
Journal; there is to be a reconsideration of the measure formerly
under debate. The whole clause looks to speedy action, at all
events, upon objections made by the President, and the language
employed providing for a return to the House does not imply filing
a document with the Clerk or the Secretary when the House is not in
session, whether it be the Senate or the House of Representatives.
. . . Here the usage of the Government of the United States, from
its origin to the present day, is that in no single case has a
President of the United States, on the return of a bill to the
Senate or House of Representatives, ever undertaken to file his
message with the Clerk of the one or the Secretary of the other;
but the action of the Executive has uniformly been by message sent
to the House when in session. That is the settled usage; and when
you look to the language of the Constitution, that the bill is to
be returned to the House, it is certainly forcing language to say
that a return to the House means filing a paper with the Secretary
or Clerk when the House is not in session."
Cong. Globe, 40th Cong., 2d Sess., Pt. 2, pp. 1941, 1942.
Senator Buckalew said:
"I should like to know how the Secretary can make entries and
make up a Journal when the Senate is not in session. I can
understand that, when the Senate reconvenes, the Clerk may hand to
the President of the Senate, just as any member might or any
outsider might, the particular paper, and it may then be presented
to the Senate, and it may be entered in the Journal. But this bill
contemplates that our Secretary shall make and keep a Journal when
the Senate is not here at all, when there can be no Journal of its
proceedings. . . . [The] Constitution provides that the Senate
shall keep a Journal of its proceedings, of what it does itself. In
another clause, it is provided that, when the President returns a
bill with his objections, that message thus containing his
objections shall be entered upon the Journal of the Senate. The
fact of receiving such a message and the entry of the message upon
the Journal must, in the very nature of the case, be when the
Senate itself is in session. . . . The Journal is to be kept by the
Senate, and it is to be a Journal of what it does, a Journal of its
proceedings. . . . The reception of a message from the President of
the United States is a proceeding by the Senate; it is an act by
the Senate itself. . . . I think, therefore, it is manifest that,
under the Constitution of the United States, this Journal and the
entries upon the Journal are matters which relate to a session of
the Senate, an actual session, the personal presence of the body,
and that it is not competent for the Senate to commit to one of its
own officers, or to any officer of the Government, or to any
citizen, the performance of a duty which is by the Constitution
charged upon itself and to be performed by itself. . . . Now, one
objection which applies to the bill . . . is that it is against the
practice of the Government. From the time that Congress first
convened together in 1789 down to this time, it has been held, and
held uniformly, that if the two Houses of Congress adjourned by a
concurrent resolution before the expiration of ten days from the
presentation of a bill to the President a bill which should then be
left in his hands would fail. . . . They have failed upon repeated
occasions, not only during recent years, but far back in former
times. . . . This bill proposes, in the absence of both Houses of
Congress to provide a substitute for the House to which the bill is
to be returned. Instead of being returned to the House in which it
originated, as the Constitution says, this bill proposes to enact
that it shall be returned to the Secretary here alone . . . , and
that, upon the paper's . . . being given to that particular person,
it shall be considered that it has been returned to the House in
which it originated. . . . Can anything more flatly contradict
common sense, deny the plain fact? Can we constitute our Secretary
into the Senate, and can we make the Clerk of the House of
Representatives the House for the purpose of doing any official act
whatever? You propose that he shall receive the communication from
the President as if he were the Senate or the House; that he,
sitting anywhere, responsible to nobody, with no check upon him,
shall make up a Journal as if he were the Senate or the House for
the occasion."
Cong.Rec., 40th Cong., 2d. Sess., Pt. 3, pp. 2076, 2077.
And Senator Morton said:
"The Constitution . . . contemplates that the bill shall pass
from the custody of the House in which it shall have originated;
and we have no power, in my judgment, to say that it shall be
sufficient to return it to the President of the Senate or the
Speaker of the House or to the Secretary or Clerk. . . . What has
become of the bill? The Constitution does not contemplate such a
condition of things. . . . It would be just as good for the private
Secretary of the President to retain a bill as for the Secretary of
the Senate; just as much a compliance with the provision of the
Constitution; and it would be just as satisfactory to my mind for
the President to retain it during the odd days as for the Secretary
of the Senate to do so."
Cong.Globe, 40th Cong., 2d Sess., Pt. 3, pp. 2077, 2078.
[
Footnote 12]
Ho.Doc. No. 493, 70 Cong., 2d sess.
[
Footnote 13]
Note 7 supra.