ArtI.S7.C2.2 Veto Power

Article I, Section 7, Clause 2:

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.

The Presentment Clause allows the President to veto legislation, preventing it from taking effect unless two thirds of both the House and Senate vote to override the veto. The Supreme Court has held that the two-thirds vote of each Chamber required to pass a bill over a veto refers to two-thirds of a quorum.1 While the President may exercise the veto power to prevent a bill from becoming law, the Court has held that, once a bill becomes law, the President has no authority to repeal it.2 The Court has also issued decisions limiting vetoes in certain contexts, including the line item veto and the legislative veto.3

When Congress is in session, a President who wishes to veto a bill must return the bill to the Chamber in which it originated within ten days (excepting Sundays) of when the bill is presented to him.4 If Congress approves a bill and sends it to the President, then adjourns before the ten days elapse, the President cannot return the bill to the originating Chamber after adjournment. In those circumstances, the President can prevent the bill from becoming law simply by declining to sign it, sometimes called a “pocket veto.” If the President blocks legislation by pocket veto, Congress cannot later override the veto—instead, the legislature must reintroduce the bill and enact it again.

The Supreme Court has explained that the Constitution’s veto provisions serve two functions. On the one hand, they ensure that “the President shall have suitable opportunity to consider the bills presented to him. . . . It is to safeguard the President’s opportunity that Paragraph 2 of § 7 of Article I provides that bills which he does not approve shall not become law if the adjournment of the Congress prevents their return.” 5 At the same time, the sections ensure “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.” 6 The Court asserted that it “should not adopt a construction which would frustrate either of these purposes.” 7

The Supreme Court has considered two cases concerning the return of vetoed legislation to Congress. In 1929, in The Pocket Veto Case, the Court held that the President could not return a bill to the Senate, where it originated, when Congress adjourned its first session sine die fewer than ten days after presenting the bill to the President.8 The Court declined to limit the word “adjournment” to final adjournments, instead reading it as referring to any occasion on which a house of Congress is not in session. The Court held that “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.” 9 Because neither House was in session to receive the bill, the President was prevented from returning it. One of the parties had argued that the President could return the bill to a proper agent of the House of origin for consideration when that body convened. After noting that Congress had never authorized an agent to receive bills during adjournment, the Court further opined that “delivery of the bill to such officer or agent, even if authorized by Congress itself, would not comply with the constitutional mandate.” 10

By contrast, in the 1938 case Wright v. United States, the Court held that the President’s return of a bill to the Secretary of the Senate on the tenth day after presentment, during a three-day adjournment by the originating Chamber only, was an effective return.11 In the first place, the Court reasoned, the pocket veto clause referred to an adjournment of “the Congress,” and here only the Senate, the originating body, had adjourned. The President could return the bill to the originating Chamber while it was in an intrasession adjournment because there was no “practical difficulty” in making the return. The Court observed: “The organization of the Senate continued and was intact. The Secretary of the Senate was functioning and was able to receive, and did receive the bill.” 12 The Court held that such a procedure complied with the constitutional provisions because “[t]he Constitution does not define what shall constitute a return of a bill or deny the use of appropriate agencies in effecting the return.” 13 The Court determined that the concerns that motivated the decision in The Pocket Veto Case were not present. There was no indefinite period in which a bill was in a state of suspended animation with public uncertainty over the outcome. Thus, the Court concluded, “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.” 14

Missouri Pacific Ry. v. Kansas, 248 U.S. 276 (1919). back
The Confiscation Cases, 87 U.S. (20 Wall.) 92 (1874). back
See ArtI.S7.C2.3 Line Item Veto; ArtI.S7.C2.4 Legislative Veto. back
If the President fails to sign a bill within ten days of enactment (excepting Sundays) while Congress is in session, the bill becomes law automatically. back
Wright v. United States, 302 U.S. 583 (1938). back
Id. at 596. back
Id. back
279 U.S. 655 (1929). back
Id. at 680. back
Id. at 684. back
302 U.S. 583 (1938). back
Id. at 589–90. back
Id. at 589. back
Id. at 595. back