1. In the last clause of Const., Art. I, § 7, par. 2, which
provides:
"If any Bill shall not be returned by the President within ten
Days (Sundays excepted) after it shall have been presented to him,
the Same shall be a Law, in like Manner as if he had signed it,
unless the Congress by their Adjournment prevent its Return, in
which case it shall not be a Law,"
the words "the Congress" refer to the entire legislative body
consisting of both Houses. P.
302 U. S.
587.
2. The Constitution neither defines what shall constitute a
return of a bill by the President nor denies the use of appropriate
agencies in effecting a return. P.
302 U. S.
589.
Page 302 U. S. 584
3. A bill, passed by both houses of Congress, was presented to
the President of the United States on Friday, April 24. On Monday,
May 4, the Senate took a recess until Thursday noon, May 7. The
House of Representatives remained in session. On May 5, the
President returned the bill with a message setting forth his
objections addressed to the Senate, in which the bill had
originated, and bill and message were delivered on that day to the
Secretary of the Senate. When the Senate reconvened on May 7, the
Secretary advised the Senate of the return of the bill and the
delivery of the President's message. On the same day, the President
of the Senate laid before it the Secretary's letter and the
message. The message was read and, with the bill, was referred to
the Senate Committee on Claims. No further action was taken.
Held that the bill did not become a law. Pp.
302 U. S. 589,
302 U. S.
598.
4. The constitutional provisions involved should not be so
construed as to frustrate either of two fundamental purposes: (1)
that the President shall have suitable opportunity to consider the
bills presented to him, and (2) that the Congress shall have
suitable opportunity to consider his objections to bills and on
such consideration to pass them over his veto provided there are
the requisite votes. P.
302 U. S.
596.
5.
Pocket Veto Case, 279 U. S. 655,
distinguished. General expressions in an opinion are to be taken in
connection with the case in which they were used. P.
302 U. S.
593.
84 Ct.Cls. 630 affirmed.
Certiorari, 301 U.S. 681, to review an order of the Court of
Claims (without opinion) overruling an application for the
reopening and retrial of a case which had previously been dismissed
in 60 Ct.Cls. 519. The claimant relied upon a new enabling
provision, passed by Congress, disapproved of by the President,
which the Government claimed had not become a law.
Page 302 U. S. 585
MR. CHIEF JUSTICE HUGHES delivered the opinion of the Court.
The question is whether Senate Bill 713, 74th Congress, 1st
session, which was passed by both Houses of Congress, became a
law.
The bill was presented to the President of the United States on
Friday, April 24, 1936. It had originated in the Senate. On Monday,
May 4, 1936, the Senate took a recess until noon, Thursday, May 7,
1936. The House of Representatives remained in session. On May 5,
1936, the President returned the bill with a message addressed to
the Senate setting forth his objections. The bill and message were
delivered to the Secretary of the Senate. When the Senate
reconvened on May 7, 1936, the Secretary advised the Senate of the
return of the bill and the delivery of the President's message.
* On the same
day,
Page 302 U. S. 586
the President of the Senate laid before it the Secretary's
letter and the message of the President of the United States. The
message was read, and with the bill was referred to the Senate
Committee on Claims. No further action was taken.
The bill granted jurisdiction to the Court of Claims to rehear
and adjudicate petitioner's claim against the United States.
Accordingly, on September 14, 1936, petitioner presented his
petition to the Court of Claims. The Government opposed the
petition upon the ground that the bill had never become a law, and
the Court of Claims denied the petition. In view of the importance
of the question, certiorari was granted. 301 U.S. 681.
The applicable provisions of the Constitution are found in
article 1, § 7, Paragraph 2, which provides:
"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. But in all such
cases the Votes of both Houses shall be determined by Yeas and
Nays, and the Names of the Persons voting for and against the
Page 302 U. S. 587
Bill shall be entered on the Journal of each House respectively.
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."
1. The first question is whether "the Congress, by their
adjournment," prevented the return of the bill by the President
within the period of ten days allowed for that purpose.
"The Congress' did not adjourn. The Senate alone was in recess.
The Constitution creates and defines 'the Congress.' It consists
'of a Senate and House of Representatives.' Article 1, § 1. The
Senate is not 'the Congress."
The context of the clause itself points the distinction. It
speaks of the "House of Representatives" and of the "Senate,"
respectively. It speaks of the return of the bill, if the President
does not approve it, "to that House in which it shall have
originated;" of reconsideration by "that House," and, in case two
thirds of "that House" agree to pass the bill, of sending it,
together with the President's objections, to the "other House" and,
if approved by two thirds of "that House," the bill is to become a
law. Provision is made for the taking of the votes of "both Houses"
and for the recording of the names of those voting for and against
the bill on the Journal "of each House respectively."
Then, after this precise use of terms and careful
differentiation, the concluding clause describes not an adjournment
of either House as a separate body, or an adjournment of the House
in which the bill shall have originated, but the adjournment of
"the Congress." It cannot be supposed that the framers of the
Constitution did not use this expression with deliberation, or
failed to appreciate
Page 302 U. S. 588
its plain significance. The reference to the Congress is
manifestly to the entire legislative body, consisting of both
Houses. Nowhere in the Constitution are the words "the Congress"
used to describe a single House.
To disregard such a deliberate choice of words and their natural
meaning would be a departure from the first principle of
constitutional interpretation. "In expounding the Constitution of
the United States," said Chief Justice Taney in
Holmes v.
Jennison, 14 Pet. 540,
39 U. S. 570,
571, 614,
"every word must have its due force, and appropriate meaning;
for it is evident from the whole instrument, that no word was
unnecessarily used, or needlessly added. The many discussions which
have taken place upon the construction of the constitution have
proved the correctness of this proposition, and shown the high
talent, the caution, and the foresight of the illustrious men who
framed it. Every word appears to have been weighed with the utmost
deliberation, and its force and effect to have been fully
understood."
See also Martin v. Hunter's
Lessee, 1 Wheat. 304,
14 U. S.
333-334;
Ogden v.
Saunders, 12 Wheat. 213,
25 U. S. 316;
Myers v. United States, 272 U. S. 52,
272 U. S. 151;
Williams v. United States, 289 U.
S. 553,
289 U. S. 572,
573.
The argument addressed to the word "their" in the phrase "the
Congress by their adjournment," is futile. The argument is that the
use of the plural would not be unusual or inappropriate if the
reference were to a single House. There is no question that both
singular and plural forms are used in the Constitution with
reference to each House separately.
See article 1, § 3,
Paragraphs 2, 4, 5, 6; Article 1, § 5, Paragraphs 1, 2, 3. The
plural is used in the phrase "their Journal" in the paragraph under
consideration. But the question is not whether the use of the
plural is inappropriate in referring to a single House or its
members. It is sufficient to say that there is certainly no
inappropriateness in the use of the
Page 302 U. S. 589
plural in relation to "the Congress" as composed of both Houses,
and that use in no way changes the significance of that term.
The phrasing of the concluding clause is entirely free from
ambiguity, and there is no occasion for construction.
2. The argument to the contrary rests upon the premise that a
bill cannot be returned by the President to the House in which it
originated when that House, during the session of Congress, is in
recess, and hence that the concluding clause of paragraph 2 of
section 7 of Article 1, referring to an adjournment by the
Congress, should be rephrased by judicial construction in order to
deal with that situation. We think that the premise is faulty, and
the rephrasing inadmissible.
Paragraph 4 of section 5 of Article 1 provides:
"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."
It will be observed that this provision is for a short recess by
one House without the consent of the other "during the Session of
Congress." Plainly the taking of such a recess is not an
adjournment by the Congress. The "Session of Congress"
continues.
Here, the recess of the Senate from May 4th to May 7th was
during the session of Congress, and under that provision. In
returning the bill to the Senate by delivery to its Secretary
during the recess, there was no violation of any express
requirement of the Constitution. The Constitution does not define
what shall constitute a return of a bill or deny the use of
appropriate agencies in effecting the return.
Nor was there any practical difficulty in making the return of
the bill during the recess. The organization of the Senate
continued, and was intact. The Secretary
Page 302 U. S. 590
of the Senate was functioning, and was able to receive, and did
receive, the bill. Under the constitutional provision, the Senate
was required to reconvene in not more than three days, and thus
would be able to act with reasonable promptitude upon the
President's objections. There is no greater difficult 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 right.
These practical considerations were well put by Mr. Hatton W.
Sumners in his argument as
amicus curiae on behalf of the
Committee on the Judiciary of the House of Representatives in the
Pocket Veto Case, 279 U. S. 655. He
said:
"There is no language in the provision governing this passing of
bills between the President and Congress, or any recognized rule of
construction which, while permitting the Congress in the first
instance to send bills to the President by a messenger, as is done
without question, and the President to receive such bills through
an appropriate agent even when himself absent from his office, and
the President, though he may be away from the Capitol at the time
returning the bill by messenger to the Congress, though the
Constitution declares 'he,' the President, shall return it, which
would prevent the House of origin
Page 302 U. S. 591
from receiving these same bills through a proper agent if that
House were engaged in other business, or temporarily absent from
their Chambers. It is against all reason and every recognized rule
of construction, when the avoidance of unnecessary delay is so
clearly manifest in the provision sought to be construed, that a
construction should be superimposed which would make for delay
regardless of every desire and of every effort of the President and
of the Congress in the situation indicated."
And, referring to the provision of the Constitution above quoted
as to adjournments by either House for not more than three days
during the session of Congress, he said:
"In such a situation what is to occur? Is the bill to become a
law despite the objections of the President? The Congress has not
adjourned, and yet the President cannot make return of the bill to
the House of its origin in session, because it is not in session.
Is the bill to die with the Congress in existence, possibly the
House of origin only having adjourned earlier than usual on the
last day permitted for the return of the bill? Is there no rational
construction of the Constitution possible which will make effective
all the safeguards with regard to legislation established in the
Constitution, and yet make operative under every circumstance, the
general plan set up by the Constitution?"
And, again, with respect to the agencies of the Houses of
Congress, Mr. Sumners observed that:
"The Houses of Congress have officers and agents of great power
and responsibility who act in their stead, and who are constantly
in their places when the Houses are in session, and when they are
not in session."
He found "nothing in the Constitution which denies the right to
the use of these agents in effecting the return of objected-to
bills." He added that:
"a rule of construction or of official action which would
require in every instance the persons who constitute the
Page 302 U. S. 592
Houses of Congress to be in formal session in order to receive
bills from the President would also require the person who is
President personally to return such bills. . . ."
"The right of constructive delivery is necessarily not only to
facilitate legislative procedure, prevent delay, and to hold the
President's powers within the limits imposed by the Constitution,
but it is also necessary in order to hold the Congress within
proper bounds by preventing bills to which the President may object
from becoming law without reconsideration by the Congress."
"The adjournment of a House for not more than three days without
the consent of the other House is not an adjournment of
Congress."
"If the Senate should be in executive session on a matter of the
highest public importance, refusing to be interrupted, on the last
day of the period in which return may be made, that would not even
be an adjournment of one House of the Congress, and yet return
could not be made if constructive delivery is not permitted."
"It could not be held that Congress was adjourned when the
Senate was in executive session, performing its constitutional
duty, and the other House in actual session. The sensible thing to
do in such a case would be for the messenger of the President,
finding himself unable to make delivery to the Senate, to make the
delivery to the Secretary of the Senate. There is nothing in the
Constitution to prohibit that being done."
The absence of any practical obstacle to the return of a bill
when a House is in temporary recess during the session of the
Congress is illustrated by what was done in this instance. The
Senate was in recess from May 4th to noon of May 7th. The
President's time for consideration expired on May 6th. He delivered
the bill with his objections to the Secretary of the Senate on May
5th. The Secretary presented the bill with the President's
objections
Page 302 U. S. 593
to the President of the Senate on May 7th, and on that day the
bill and the objections were laid before the Senate and were
referred to the appropriate committee. The fact that Mr. Sumners'
contention in the Pocket Veto case was unavailing with respect to
the effect of an adjournment of the Congress at the close of its
first regular session in no way detracts from the pertinence and
cogency of these observations as addressed to the situation which
is now presented.
3. The chief, if not the sole, reliance for the argument that
the bill could not be returned by the President during the Senate's
recess is our decision in the
Pocket Veto Case, supra. We
do not regard that decision as applicable, for two reasons: (1) the
present question was not involved, and (2) the reasoning of the
decision is inapposite to the circumstances of this case.
In the
Pocket Veto Case, the Congress had adjourned.
The question was whether the concluding clause of paragraph 2 of
section 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. In interpreting the word
"adjournment," and in referring to other provisions of the
Constitution using the word "adjourn," the Court was still
addressing itself to a case where there had been an adjournment by
the Congress. The Court did not decide, and there was no occasion
for ruling, that the clause applies where the Congress has not
adjourned and a temporary recess has been taken by one House during
the session of Congress. Any observations which could be regarded
as having a bearing upon the question now before us would be taken
out of their proper relation. The oft-repeated admonition of Chief
Justice Marshall "that general expressions, in every opinion, are
to be taken in connection with the case in which those expressions
are used," and that, if
Page 302 U. S. 594
they go "beyond the case, they may be respected, but ought not
to control the judgment in a subsequent suit when the very point is
presented for decision," has special force in this instance.
Cohens v.
Virginia, 6 Wheat. 264,
19 U. S.
399.
In the
Pocket Veto Case, the Court expressed the view
that the House to which the bill is to be returned "is the House in
session," 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.
But that expression should not be construed so narrowly as to
demand that the President must select a precise moment when the
House is within the walls of its chambers, and that a return is
absolutely impossible during a recess, however temporary. Such a
conclusion, as we shall presently endeavor to show, would frustrate
the fundamental purposes of the constitutional provision as to
action upon bills. The Court, in the
Pocket Veto Case, was
impressed with the impropriety of a delivery of the bill by the
President during a period of adjournment
"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," said the Court,
"it was plainly the object 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
Page 302 U. S. 595
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."
Id., pp.
279 U. S.
684-685.
These statements show clearly the sort of dangers which the
Court envisaged. However real these dangers may be when Congress
has adjourned and the members of its Houses have dispersed at the
end of a session, the situation with which the Court was dealing,
they appear to be illusory when there is a mere temporary recess.
Each House, for its convenience and during its session and the
session of Congress, may take, and frequently does take, a brief
recess limited, as we have seen, in the absence of the consent of
the other House, to a period of three days. In such case, there is
no withholding of the bill from appropriate legislative record for
weeks or perhaps months, no keeping of the bill in a state of
suspended animation with no certain knowledge on the part of the
public whether it was seasonably delivered, no causing of any undue
delay in its reconsideration. When there is nothing but such a
temporary recess, the organization of the House and its appropriate
officers continue to function without interruption, the bill is
properly safeguarded for a very limited time, and is promptly
reported and may be reconsidered immediately after the short recess
is over. The prospect that, in such a case, the public may not be
promptly and properly informed of the return of the bill with the
President's objections, or that the bill will not be properly
safeguarded or duly recorded upon the journal of the House, or that
it will not be subject to reasonably prompt action by the House is,
we think, wholly chimerical. If we regard the manifest realities of
the situation, we cannot fail to see that a brief recess by one
House, such
Page 302 U. S. 596
as is permitted by the Constitution without the consent of the
other House, during the session of Congress, does not constitute
such an interruption of the session of the House as to give rise to
the dangers which, as the Court apprehended, might develop after
the Congress has adjourned.
4. The constitutional provisions have two fundamental purposes;
(1) That the President shall have suitable opportunity to consider
the bills presented to him, and (2) that the Congress shall have
suitable opportunity to consider his objections to bills and, on
such consideration, to pass them over his veto provided there are
the requisite votes.
Edwards v. United States,
286 U. S. 482,
286 U. S. 486.
We should not adopt a construction which would frustrate either of
these purposes.
As to the President's opportunity for consideration, we have
held that he may still approve bills, and that they will become
laws if he acts within the time allotted for that purpose, although
Congress meanwhile has adjourned.
La Abra Silver Mining Co. v.
United States, 175 U. S. 423;
Edwards v. United States, supra. It is to safeguard the
President's opportunity that Paragraph 2 of § 7 of Article 1
provides that bills which he does not approve shall not become laws
if the adjournment of the Congress prevents their return.
Edwards v. United States, supra.
Where the President does not approve a bill, the plan of the
Constitution is to give to the Congress the opportunity to consider
his objections and to pass the bill despite his disapproval. It is
for this purpose that the time limit for return is fixed. This
opportunity is as important as that of the President. But if the
return of a bill is impossible during a temporary recess of a House
while Congress is in session, either the President may be obliged
to cut short the time for his consideration so as to be sure to get
his objections before the House while it is within the walls of its
chambers, or, if the President takes the allotted time and attempts
to return
Page 302 U. S. 597
the bill during the recess, his objections will either be
unavailing or the Congress will be denied opportunity to pass upon
them. If, as we think, the concluding words of paragraph 2 of § 7
are inapplicable, then, as Congress has not adjourned, the bill, if
not deemed to have been returned, will become a law despite the
President's disapproval. Or, if that clause were deemed applicable
and the return of the bill be considered to have been prevented by
the recess, the bill would not become a law, and Congress, although
in session, would not be able to pass the bill over the President's
objections.
The extremely technical character of the argument which would
make impossible the return of a bill because a House has taken a
temporary recess is manifest. Suppose the President, who is clearly
entitled to his ten days for consideration, sends the bill to the
House in which it originated with his objections on the afternoon
of the tenth day, but that House has adjourned at noon on that day
until the following morning. Then, on the argument now advanced as
to the construction of the concluding clause of Paragraph 2 of § 7,
the bill would not become a law, and the objections of the
President would operate practically as an absolute veto, although
the Congress was in session and ready to consider his objections.
Or, if that result does not follow, in the view that the clause
does not apply because Congress has not adjourned, then, if the
bill is not regarded as returned, it becomes a law although the
President has shown his disapproval within the ten days. These
difficulties disappear if we dispense with wholly unnecessary
technicalities as to the method of return and give effect to
realities.
We agree with the government that the precedents of executive
action which have been cited are not persuasive. The question now
raised has not been the subject of judicial decision, and must be
resolved not by past uncertainties, assumptions, or arguments, but
by the application
Page 302 U. S. 598
of the controlling principles of constitutional
interpretation.
We are not impressed by the argument that, while a recess of one
House is limited to three days without the consent of the other
House, cases may arise in which the other House consents to an
adjournment and a long period of adjournment may result. We have no
such case before us, and we are not called upon the conjecture as
to the nature of the action which might be taken by the Congress in
such a case, or what would be its effect.
We hold that, where the Congress has not adjourned and the House
in which the bill originated is in recess for not more than three
days under the constitutional permission while Congress is in
session, the bill does not become a law if the President has
delivered the bill with his objections to the appropriate officer
of the House within the prescribed ten days, and the Congress does
not pass the bill over his objections by the requisite votes. In
this instance, the bill was properly returned by the President, it
was open to reconsideration in Congress, and it did not become a
law.
The judgment is
Affirmed.
MR. JUSTICE CARDOZO took no part in the decision of this
case.
* This communication was as follows:
"United States Senate"
"Washington, May 7, 1936"
"Hon. John N. Garner,"
"President of the Senate"
"My dear Mr. President:"
"On Friday, April 24, 1936, the Committee on Enrolled Bills of
the Senate presented to the President of the United States the
enrolled bills (S. 713) granting jurisdiction of the Court of
Claims to hear the case of David A. Wright, and (S. 929) for the
relief of the Southern Products Co., which had passed both Houses
of Congress and been signed by the Speaker of the House of
Representatives and the President of the Senate."
"The Senate at 3:25 p.m. Monday, May 4, 1936, took a recess
until 12 noon on Thursday, May 7, 1936."
"During the interim, the President of the United States sent by
messenger two messages addressed to the Senate, each dated May 5,
1936, giving his reasons for not approving, respectively, Senate
bill 713 and Senate bill 929. The Senate not being in session on
the last day which the President had for the return of these bills
under the provisions of the Constitution of the United States, in
order to protect the interests of the Senate, so that it might have
the opportunity to reconsider the bills, I accepted the messages,
and I now present to you the President's veto messages, with the
accompanying papers, for disposition by the Senate."
"Sincerely yours,"
"Edwin A. Halsey"
"Secretary of the Senate"
MR. JUSTICE STONE, dissenting in part.
I agree that the legislation now in question did not become a
law, not, as the Court holds, because the bill vetoed by the
President was returned to the Senate within the ten-day period or
to any person authorized to receive the bill in its behalf, but
because the Senate, by its adjournment, prevented the return, and
thus called into operation the provision that the bill "shall not
be a Law" where adjournment prevents its return to the House in
Page 302 U. S. 599
which it originated within the ten days allowed to the President
to sign or disapprove it. [
Footnote
1]
The reasons assigned by the Court for its conclusion seem to me
to have no application to the case now before us, and leave in
confusion and doubt the meaning and effect of the veto provisions
of the Constitution, the certainty of whose application is of
supreme importance.
Notwithstanding the cogently reasoned ruling of a unanimous
court in
The Pocket Veto Case, 279 U.
S. 655,
279 U. S. 682,
that the "House" to which a bill is to be returned by the President
means a House in session, we may assume for present purposes that
each House of Congress, by appropriate action, may constitutionally
confer upon its secretary, clerk, or some other officer authority
to receive a bill returned to it by the President. But it does not
appear that any such authority has ever been conferred on the
secretary of the Senate, or that he has hitherto assumed to act in
that capacity. In the
Pocket Veto Case, this Court held
that in, 1926, it had not, and
Page 302 U. S. 600
the Senate has since taken no step in that direction, perhaps
because of our dictum in that case that such action would be
unconstitutional.
The Houses of Congress, being collective bodies, transacting
their routine business by majority action, are capable of acting
only when in session and by formal action recorded in their
respective journals, or by recognition, through such action, of an
established practice. Since the foundation of the government, it
has been the settled usage of both Houses of Congress to receive
messages from the President and bills disapproved and returned by
him, when in session. It does not appear that, in the past, the
Secretary of the Senate or any other person has assumed to act for
either House in receiving a bill returned by the President, and in
one recorded instance the Secretary of the Senate and its President
declined so to act. [
Footnote
2] There has been no action and no usage of either House
recognizing the existence of such authority in anyone.
Pocket
Veto Case, supra, 279 U. S. 682
et seq.
The Secretary of the Senate is appointed by the body to serve at
its pleasure, and his duties are prescribed by the Senate rules.
They give no hint that among these duties is the important function
of acting as the Senate in the receipt of bills returned to it by
the President during the ten-day period, or retaining them in
custody pending its reassembly when the return is during an
adjournment. Not only have both Houses of Congress failed to
designate any person to receive bills returned to them by
Page 302 U. S. 601
the President, but, in one instance, they explicitly refused to
take such action when it was proposed. [
Footnote 3]
The conclusion seems inescapable that whatever constitutional
power the Senate and House may possess to designate an officer to
receive in their behalf bills returned by the President, they have
not exercised it; the Constitution, which directs that bills shall
be returned to the House in which they originate, has made no such
designation, and neither the Constitution nor any statute, rule, or
usage has indicated any person who could so act, or prescribed for
any one duties embracing such a function.
In such circumstances, delivery of a bill to the Secretary of
the Senate during its adjournment would seem to be no more a
compliance with the constitutional requirement than would its
deposit by the President's messenger with the sergeant at arms, a
doorkeeper, or any other person not clothed with authority or
charged with official duty in the premises, who might be induced to
receive the bill and undertake to bring it to the attention of the
Senate upon reassembly. [
Footnote
4]
Doubts as to the scope and effect of the rule now announced by
the Court are multiplied by the intimation that a different rule
may be applied in the case of adjournment
Page 302 U. S. 602
of either House of Congress, with the consent of the other, for
more than three days, and that the present decision can, in some
way not disclosed, be distinguished from our ruling in the
Pocket Veto Case, where the return of a bill to the Senate
was held to have been prevented by the adjournment of the Senate,
pursuant to concurrent resolution, from July 3d to November 10th,
the House having at the same time adjourned
sine die. But
such an intimation can rest on nothing more substantial than our
unwillingness to face the obvious consequences of what is now
decided. If it be said that an essential difference between the
present case and the
Pocket Veto Case lies in the fact
that here, the President delivered the bill with his veto message
to the Secretary of the Senate, and that there, he retained it
without signing, then the rule which is now announced will, for all
practical purposes, expire with its birth. We can hardly assume
that a President would invite further congressional action by a
return of a bill with his veto to a secretary or other officer of
the House concerned, during its adjournment, if, by retention of
the bill without signing, he could make the veto absolute.
Again, if it be said that a distinction is to be drawn between
adjournment of one House for three days and longer adjournments
taken with the concurrence of the other House, no plausible reason
can be advanced for saying that the Secretary or any other officer
of the Senate possesses authority to receive returned bills during
a three-day adjournment which he does not possess during a four-day
or longer adjournment during a session of Congress. In the
Pocket Veto Case, the Senate adjourned during a session of
Congress for four months, the House consenting. But the ten days
allowed for consideration of the bill by the President expired the
day after adjournment. If the decision in that case is to stand
with this, it can only be because the Secretary in the former lost,
on the day after
Page 302 U. S. 603
adjournment, an authority which he retained for a day after
adjournment in the latter. If lost, it was either because the
adjournment was for longer than three days, and was thus one which
could not be effected without a concurrent resolution, or because
the other House had not remained in session. Such distinctions find
as little support in Constitution, laws, and congressional
practice, and in reason, as does the proposition that the Secretary
of the Senate is, by virtue of his appointment as such, clothed
with authority to receive in its behalf bills returned by the
President.
If in the
Pocket Veto Case, the Secretary of the
Senate, where the bill originated, had authority after adjournment
during the session, to receive it in behalf of the Senate, the
adjournment did not prevent the return by the President, and the
bill, upon his failure to sign or return it, became law by virtue
of the constitutional provision, just as did some 173 other bills
which, until this moment, have been regarded as dead letters, as
they were declared to be in the
Pocket Veto Case, supra,
279 U. S. 691.
[
Footnote 5] If
Page 302 U. S. 604
the Court was wrong on that point, its decision was wrong, and
in the interests of a definite and precise constitutional procedure
in a field where definiteness and precision are of paramount
importance, it should now be frankly overruled.
If I am wrong in my conclusion that the President did not in
this case return the bill to the Senate by returning it to its
Secretary during adjournment, then adjournment did not prevent its
return, the President's veto became effective, and there is no
occasion for the Court to indulge in an academic discussion of what
may in other circumstances be the effect of an adjournment alone of
the House in which a bill originates, which actually prevents such
a return. The pronouncement now made that the President may be so
deprived of the veto power ought to be avoided not only because, in
my opinion, it is an erroneous interpretation of the Constitution
which may have grave consequences, but because it is unnecessary to
the decision. If the experience of one hundred and fifty years of
constitutional interpretation has taught any lesson, it is the
unwisdom of making solemn declarations as to the meaning of that
instrument which are unnecessary to decision. They can serve no
useful purpose, and their only effect may be to embarrass the Court
when decision becomes necessary.
O'Donoghue v. United
States, 289 U. S. 516,
289 U. S. 550.
Humphrey's Executor v. United States, 295 U.
S. 602,
295 U. S.
626-627. The declaration now made, for the first time,
that the Constitution has left an undefined area in which the veto
power cannot be
Page 302 U. S. 605
exercised is the more unfortunate since, in the circumstances,
it seems almost certain that the Court will be called upon to
reexamine it.
If, on the other hand, I am right in my view that the President
was here prevented from returning the bill, we are brought
unavoidably to the decision of the question presented by the
petition for certiorari and argued at the bar as the controlling
question -- whether the President is deprived of the veto power
whenever return of a bill within the prescribed ten days is
prevented by the adjournment alone of the House in which the bill
originated.
The framers, in seeking to establish and preserve the
presidential veto, were aware that the originating House, unlike
the President, who is without incentive to avoid receipt of a bill
which he is free to veto, might have the strongest motives to avoid
the veto of a bill, if that were possible, by preventing its return
or by challenging the fact of its return. They accordingly took
care to provide for the return of a bill to the originating House
by an act of public notoriety -- its delivery to the House in
session, and recognizing that return might be prevented by
adjournment, they declared that, in that case, it should not become
a law.
The possibility that a return may be prevented by the
adjournment of a single House during a session of Congress is not
removed by deciding that a secretary or some other officer of the
originating House may receive a returned bill during the period of
a three-day adjournment. Either House may, and does on occasion,
adjourn for longer periods, with the consent of the other.
[
Footnote 6] An adjournment
coincident with death or absence of the officer may prevent the
return. Whatever authority in the premises the Senate or the House
may give to its officer it may
Page 302 U. S. 606
withhold or withdraw. If the dictum now pronounced correctly
states the fundamental law, the originating House may shorten the
period for the exercise of the veto power or thwart it altogether
by the simple expedient of adjournment after withdrawing the
supposed authority of any officer to receive the vetoed bill.
This Court has emphasized, as does the language of the
Constitution, the great importance of the veto power and the
dominating purpose expressed in the constitutional provision that
the power shall not be curtailed or the ten days, allowed for its
exercise, shortened.
Edwards v. United States,
286 U. S. 482,
286 U. S. 486,
286 U. S.
493-494; the
Pocket Veto Case, supra, p.
279 U. S. 678.
The words make it certain that the only adjournment which can
prevent return of a bill by the President is that of the House in
which the bill originates, and to which, if vetoed, it is to be
returned. Continuance in session of the other House does not
facilitate return. No more can its adjournment obstruct return.
Adjournment by the originating House can alone have the consequence
to be guarded against -- prevention of return. Hence, it was
adjournment of the originating House with which the framers were
concerned. There is no reason of which we are aware, and none has
been suggested, for supposing that, in creating and protecting the
veto power, they regarded the adjournment
vel non of the
non-originating house as of any consequence, or that they had any
thought of leaving the President stripped of the veto power, either
by chance or by design, whenever the originating House adjourned
without the other. The men who created the framework of our
government are not lightly to be charged with such an omission. The
charge now made finds its only support in a punctilio of
grammar.
"We must never forget that it is a
Constitution we are
expounding."
McCulloch v.
Maryland, 4 Wheat. 316,
17 U. S. 407.
Its provisions are not to be interpreted like those of a municipal
code or of a penal statute, though
Page 302 U. S. 607
even the latter is to be read so as not to defeat its obvious
purpose,
United States v. Raynor, ante, p.
302 U. S. 540, or
lead to absurd consequences.
United States v. Katz,
271 U. S. 354,
271 U. S. 362.
In defining their scope, something more is involved than
consultation of the dictionary and the rules of English grammar.
They are to be read as a vital part of an organic whole, so that
the high purpose which illumines every sentence and phrase of the
instrument may be given effect in a consistent and harmonious
framework of government.
The Court has hitherto consistently held that a literal reading
of a provision of the Constitution which defeats a purpose evident
when the instrument is read as a whole is not to be favored. The
phrase "due process" in the Fifth and Fourteenth Amendments has
long since been expended beyond its literal meaning of due
procedure.
See Davidson v. New Orleans, 96 U. S.
97;
cf. Brandeis, J., concurring in
Whitney
v. California, 274 U. S. 357,
274 U. S. 373.
The term "contract" in the contract clause is not confined
literally to the contracts of the law dictionary.
Dartmouth
College v. Woodward, 4 Wheat. 518. The prohibition
against their impairment has never been taken to be inexorable.
Home Building & Loan Assn. v. Blaisdell, 290 U.
S. 398, and cases cited at
290 U. S. 430.
The injunction that no person "shall be compelled in any Criminal
case to be a witness against himself" is not literally applied.
Brown v. Walker, 161 U. S. 591,
161 U. S. 595.
"From whatever source derived," as it is written in the Sixteenth
Amendment, does not mean from whatever source derived.
Evans v.
Gore, 253 U. S. 245.
See also Robertson v. Baldwin, 165 U.
S. 275,
165 U. S.
281-282;
Gompers v. United States, 233 U.
S. 604,
233 U. S. 610;
Bain Peanut Co. v. Pinson, 282 U.
S. 499,
282 U. S. 501;
United States v. Lefkowitz, 285 U.
S. 452,
285 U. S. 467.
But here, regardless of the constitutional purpose and the
larger considerations which have usually guided our interpretation
of the Constitution as an instrument of
Page 302 U. S. 608
government, it is insisted that the phrase "unless the Congress
by their Adjournment prevent its Return" cannot be taken to include
the adjournment alone of the single House whose adjournment is in
every case the only effective means of preventing a return. It is
said that the word "Congress," used to describe the body whose
adjournment occasions the pocket veto, followed as it is by the
plural possessive pronoun "their," can refer only to the two Houses
comprised in "the Congress," and hence cannot refer to adjournment
of a single House. This subordination of the framers' main
objective to a meticulously grammatical interpretation of their
words is unwarranted. It would hardly be suggested that the
command,
"Each House shall keep a Journal of its Proceedings, and from
time to time publish the same, excepting such Parts as may in their
Judgment require Secrecy,"
(Article 1, § 5, cl. 3), calls for the concurrence of the
judgment of all the members of a House in order to ban publication
of a journal: "their Judgment" is obviously that of the controlling
part of the membership; that part whose opinion, under applicable
rules of congressional procedure, is decisive of the question. A
similar analysis based on the purpose and context of the clause now
before us demands recognition that the draftsmen were concerned
with the adjournment only of that part of the Congress to which
return was to be made and whose absence would thus prevent return
of a bill by the President. In the light of these dominant facts,
it seems plain that, in using the words "their Adjournment," the
framers referred to any action taken by the members of Congress of
either House or both Houses, which was effective to prevent return
of a bill by the President to the originating House. The very force
of the circumstances to which the words are applied gives emphasis
to "Adjournment" as that which prevents return, and to "their" as
referring to the action of those members of Congress which
effects
Page 302 U. S. 609
the adjournment. This usage parallels that in the clause
requiring the publication of the journals of both Houses "excepting
such Parts as may in their Judgment require Secrecy." In both
instances, the significant action, adjournment, or the exercise of
judgment, as the case may be, is that of those members whose action
is effective to accomplish the contemplated result; there,
prohibition of publication; here, prevention of return to the
originating House. Thus read, no word is without appropriate
meaning, and the clause is consistent both with the obvious purpose
and with the grammatical usage appearing elsewhere in the
Constitution.
I cannot ignore that purpose and say that, for no discernible
reason other than our present-day notions of grammatical
construction, we are compelled to read the words as excluding from
the operation of the clauses designed to protect the veto power
every case where the return of a bill is prevented by adjournment
of a single House.
MR. JUSTICE BRANDEIS concurs in this opinion.
[
Footnote 1]
Article 1, § 7, Cl. 2, of the Constitution 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, 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. But,
in all such cases, the Votes of both Houses shall be determined by
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. 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."
[
Footnote 2]
On May 19, 1888, President Cleveland attempted to return a bill
to the Senate during an adjournment, by tendering it to the
Secretary and to the President of the Senate. Both officers
rejected the tender, "claiming that the return of said bill and the
delivery of said message could only properly be made to the Senate
when in actual session." President Cleveland's message, Senate
Journal, 50th Cong., 1st Sess.
[
Footnote 3]
In 1868, a bill reported by the Senate Judiciary Committee and
passed by majority vote of the Senate, provided for a return of a
bill to a House not sitting by delivery of it at the office of the
Secretary of the Senate or of the Clerk of the House, as the case
might be. Strong opposition to the bill developed in Senate debate,
the bill was not reported out of the Judiciary Committee of the
House, and failed of passage.
Pocket Veto Case, supra,
279 U. S. 686
et seq.
[
Footnote 4]
The fact that the Senate has taken pains to confer express
authority in some instances, by formal resolution, Gilfry,
Precedents, 226, 462, by rule, Senate Manual, 1936, 5, 8, 12, 36,
or by standing order,
id. at 128
et seq.,
persuades that the important power to receive a bill would not be
conferred
sub silentio.
[
Footnote 5]
A memorandum prepared in the office of the Attorney General and
transmitted by the President to Congress in 1927, H.Doc. No. 493,
70th Cong., 2d Sess., cites more than 400 bills and resolutions
which were passed by Congress and submitted to the President less
than ten days before final or interim adjournment of Congress,
which were not signed by the President or returned with his
disapproval. Of these, 119 were instances in which the adjournment
was for a session of Congress, as distinguished from its final
adjournment. None of these bills or resolutions was placed upon the
statute books or treated as having become a law. No attempt appears
to have been made to enforce them in the courts, except the law
involved in the
Pocket Veto Case. It does not appear that,
in any of these instances, either House of Congress has taken any
official action indicating that, in its judgment, any of these
bills became laws.
See the
Pocket Veto Case,
supra, 279 U. S.
690-691. Examination of the House Calendars shows that,
in the period since that covered by the Attorney General's
memorandum, 54 bills have been pocketed before the end of a
Congress, with no attempt to return them. This was done twice in
the Seventy-First Congress, once in the Seventy-Second Congress,
twenty-eight times in the Seventy-Fourth Congress, and twenty-three
times in the First Session of the Seventy-Fifth Congress.
See
also Veto Messages: Record of Bills Vetoed and Action Taken
Thereon by the Senate and House of Representatives, Fifty-First
Congress to Seventy-Fourth Congress, Inclusive, 1889-1936, compiled
under the direction of Edwin A. Halsey, Secretary of the Senate
(1936).
[
Footnote 6]
Cannon, Precedents, Vol. 8, p. 816.