Veto Power

• Author: Louis Fisher
• Pages: 2784-2785

Page 2784

After rejecting an absolute veto for the President, the delegates at the CONSTITUTIONAL CONVENTION OF 1787 granted the President a qualified power to veto congressional legislation, subject to an override by a two-thirds majority of each house of Congress. Some anti-Federalists objected to the veto as an encroachment upon the legislative power in violation of the SEPARATION OF POWERS doctrine, but ALEXANDER HAMILTON answered in THE FEDERALIST #73 that the President needed a veto to protect the executive branch from "depredations" by the legislature. The veto was also designed to be used against bills that were constitutionally defective, poorly drafted, or injurious to the community.

The Constitution provides that any bill not returned by the President "within ten Days (Sundays excepted)" shall become law "unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law." The latter procedure, known as the POCKET VETO, was first used by President JAMES MADISON in 1812. In the POCKET VETO CASE of 1929, the Supreme Court decided that "adjournment" did not refer merely to final adjournment at the end of a Congress. The pocket veto could be used during any adjournment, final or interim, that "prevented" a bill's return to Congress. However, in Wright v. United States (1938) the Court considered a three-day recess by the Senate too short a period to constitute adjournment.

Further clarification of the pocket veto resulted from an action by President RICHARD M. NIXON. In 1970, during an adjournment of Congress for less than a week, he pocket-vetoed the Family Practice of Medicine Bill. An appellate court, in Kennedy v. Sampson (1974), held that

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an intra session adjournment of Congress does not prevent the President from returning a bill so long as Congress makes appropriate arrangements to receive presidential messages. The GERALD R. FORD and JIMMY CARTER administrations renounced pocket vetoes during inter session adjournments as well. This political accommodation restricted the pocket veto to the final adjournment at the end of the second session. President RONALD W. REAGAN, however, has used the pocket veto between the first and second sessions, provoking renewed litigation.

Other court decisions have clarified the boundaries of the veto power. In 1919, in Missouri Pacific Railway Co. v. Kansas, the Supreme Court announced that the Constitution required only two-thirds...