Petition for Writ of Certiorari — International Union, United Automobile, Aerospace & Agricultural Implement Workers v. Fafnir Bearing Co.

Ottice- Supreme Court, U.S.

4 FILED

PND hake Oh Sn! oo

nor mt wore

i

; ae !

IN THE JOHN F. DAVIS. CLe?K f

Supreme Court of the United States

October Term, 1964

non B25

EBER BROS. WINE & LIQUOR CORPORATION,

Petitioner,

v.

THE UNITED STATES,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF CLAIMS

-——

=

Justin N. FetpMAn

Attorney for Petitioner

777 Third Avenue

i ew York, New York 10017

Of Counsel:

HERBERT PRASHKER

Rosert B. SHarro

and

Pouettri Frempin PRASHKER

FELDMAN & GARTNER

of New York City

TAPLE OF CONTENTS

PAGE

IN ete here en 2 Moanash copianesanies 1

ST RAT a EEN LOE ROOT TOT SEIT TT 2

Coermmpnces: TPO IN anna e cick ctenecansentereeenes 2

CoNSTITUTIONAL PROVISION INVOLVED ................0.0000:0.065. 2

I are face rts ps dineaias Antetiieamneeans 3

Reasons For GRANTING THE WRIT ........................5:6600000 11

The Importance of the Question 0... 11

The Rationale of the Decision Below: The Presi-

dent’s Qualified Right Unilaterally to Demand

Personal PreeemGatiem .........:....6...6...0.06.....0...... aie 15

Delivery of Bills to the President’s Office at the

Seat of the Goxernment Constitutes Adequate

RII oot. aratss os~ arp oeceeremmlnaa Hersatsasee 18

The Constitutional Scheme Envisioned by the

Decision Below is Uncertain and Unworkable 23

The ‘‘Ground’’ of Congressional ‘‘Acquiescence’’ 28

RN Foie oe RA nee Le ea eaa hiatade ice 29

Se SRR LEE

I!

PAGE

TABLE OF AUTHORITIES

Cases:

Edwards v. United States, 286 U. S. 482 (1932) .... 13, 14

La Abra Silver Mining Co. v. United States, 175 U. S.

423 (1899) a AERP AERA CRANE SEL Seen Be Tatts tees 13

Missouri P. Ry. Co. v. Kansas, 248 U. S. 276 (1919) 1

The Pocket Veto Case, 279 U. S. 655 (1929) .........13, 27-28

Wright v. United States, 302 U. S. 583 (1938) ..... ..18,15

21-23, 27-28

Constitutions and Statutes:

United States Constitution:

(NT EGAROCD, ale Beara tier Slepenare ar erat perriee rare 6, 19

I co esans cexteaigosersd wersessnseeessnnenaconenneesd passim

I rad ccanesvtcsipraenscpainonicaninssstcssoniny aanies 2, 25

pe ae ere Lib Sea Raps Sen ROR SP Pr 18

at. 5h, 3 ....... dace Ngiaceernicecavccsounancren 19

Massachusetts Constitution (1780) 000.000. 12

New York Constitution (52h Mpeiinaderd Sia ete aeagcaee 12

0 To Sadao ccaphan passesscesaca rgsseeoeorannn 2

dea 5 cos aa cli casa ivesnencaeednoaanswnsern 3

et ak aseresnrayysesnias ivvasieesakioo essed 3

Books and Articles: ees

Baker, The Fundamental Law of American Constitu-

tions (1916) ............ FS Syren slag NE at Aa Bd tc IRM te ae 12

Beard, ‘‘ Veto Power, ’* Cyclopedia of American Gov-

ee Bellanca a civewrs ye vanachanslascinbsins 12

Ii!

Black, Handbook of American Constitutional Law

RO NS nsec hadi csencpnessaacuamsmenbeceeentrons

Bryce, The American Commonwealth (3d ed. 1907)

Dougherty, Constitutional History of the State f

Be es BIE hein ese tes

Elliott, Debates in the Several State Conventions on

the Adoption of the Federal Constitution (1836)

Farrand, Records of the Federal Convention (Rev.

Bg RRR UDR aie Rs ina atled vita o acne oro

Farrand, The Framing of the Constitution (1913)

Fisher, The Evolution of the Constitution of the

United States (2d ed. 1910) .................c cece:

Frothingham, A Brief History of the Constitution

and Government of Massachusetts (1916)

Lincoln, The Constitutional History of New York

SERRE NaS oe pede = NC Oe ary I CNC DOE MO

Norton, The Constitution of the United States (1940)

Pierce, Notes, in The Formation of the Union (House

Doc. No. 398, 69th Cong., Ist Sess.) (1927) ........

Story, Commentaries on the Constitution of the United

I I MII oss Featesases insane trirmcretintcens ie

.) Se we | ene Coenen ee ee

Warren, The Making of the Constitution (1928) ....

Zinn. The Veto Power of the President, 12 F. R. D.

207 (1951)

PAGE

19

12

12

12

12

14

av

Miscellaneous:

PAGE

The Federalist, Nos. 69, 73 (Hamilton) 0... 12

105 Congressional Record (1959) .........._..4, 6, 7, 14. 26

Journai of the House of Representatives (Aug. 31,

Reet SL ene ABR a et in Oe DOE TOT 6, 9, 10, 26, 27

H. Rep. No. 118 (86th Cong., Ist Sess.) (1959) ......... §

S. Rep. No. 758 (86th Cong., Ist Sess.) (1959)... .. 5)

S. 994 (86th Cong., Ist Sess.) (1959)... ale

S. 2539 (86th Cong., Ist Sess.) (1959) 0

H.R. 6596 (86th Cong., Ist Sess.) (1959) ete

H.R. 2717 (86th Cong., Ist Sess.} (1959) ..0............passim

H. J. Res. 510 (86th Cong., 1st Sess.) (1959) one eee 11

Memorandum of Attorney General Brownell (July 5,

NS ein ata saree ty wmlouneenaneniies reaches 7-8, 14, 22

1943) ........

Memorandum of President Roosevelt (Nov. 10, 1943) 26

N. Y. Sunday Times (Oct. 25, 1964) .....0.0000 | 6d

IN THE

Supreme Court of the United States

October Term, 1964

is eet

St a

Eser Bros. Wine & Liquor CoRPORATION,

Petitioner,

v.

Tue Unitep States,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF CLAIMS

To the Honorable Earl Warren, Chief Justice of the United

States, and to the Honorable Associate Justices of

the Supreme Court of the United States:

Petitioner respectfully prays that a writ of eertiorarl

issue to review the judgment of the United States Court

of Claims entered in the above-entitled case on October

16, 1964.

Opinion Below

The opinion of the Court of Claims (Appendix B, infra,

p. 3a) is reported in 337 F. 2d 624.

st

Jurisdicti

The judgment of the Court of Claims (see Appendix

B, infra) was entered on October 16, 1964. The jurisdic-

tion of this Court is invoked under 28 U. S. C. §1255(1).

Question Presented

Whether a bill, passed by both houses of Congress, and

physically delivered by Congress, in accordance with estab-

lished practice, to the Office of the President at the Seat of

the Government,’ was, by such delivery, ** presented”’ to the

President within the meaning of Article I, Section 7, Clause

2 of the Constitution, and so became law when not returned

by the President to the Congress within ten days of such

delivery (Sundays excepted), Congress not having previ-

ously adjourned, when the President had been abroad at

the time of the delivery of the bill to his Office and there-

after returned the bill to Congress with a message of dis-

approval within ten days of his arrival in the United States.

Constitutional Provision Involved

‘‘Every Bill which shall have passed the House of

Representatives and ‘he Senate, shall, before it be-

comes a Law, be presented to the President of the

United States; If he approves ke shall sign it, but if

not he shall return it, with his Objections to that

House in which it shall have originated, who shall

1. U.S. Const. art I, §8, cl. 17.

a

3 ,

enter the Objections at large on their Journal, and

proceed to reconsider it. If atter 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 Bul 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 Adjournmeni prevent its Return, in

which Case it shall not be a Law.’’ U.S. Const. art.

I, 7, el. 2 (italies supplied).

The text of the bill in question, H.R. 2717, 86th Cong.,

1st Sess. (1959), is set forth in Appendix A, infra. ,

Statement

(This suit was brought by petitioner in the Court of

Claims under 28 U. S. C. $1346 and §1491° for the refund

of income taxes overpaid by petitioner. The respondent

asserted the Statute of Limitations as its only defense.

(See Answer, Record, pp. 24-25.) That defense had been

expressly barred by the terms of H.R. 2717, 86th Cong.,

1st Sess. (1959) (see Appendix A, infra), passed by both

Houses of Congress and delivered to the Office of the

President at the White House on August 31, 1959. From

2. Additional statutory bases for the claim are set forth in the

Petition below, Paragraph 12 (Record, p. 4).

4

August 26 to September 7, 1959 the President was out of

the country. On September 14, he returned H.R. 2717 to

the House of Representatives with a message of disap-

proval. Congress adjourning at 6:22 a.m. on September

15, the bill was not reconsidered.®

Upon these facts the court below found that, if H.R.

2717 was ‘‘presented’’ to the President on August 21, 1959

and consequently became law upon the expiration of ten

days (Sundays excepted), ‘‘ plaintiff is entitled to a refund

for the overpayment of income taxes in a total amount of

$150,634.18”’ plus interest (Finding of Fact 4). The court

concluded, however, that H.R. 2717 was not ‘*presented”’,

within the meaning of Article I, Section 7, Clause 2 of the

Constitution® until September 7, 1959, the date of the

President’s arrival in the United States, and that his re-

turn of the bill to the House of Representatives on Septem-

ber 14, 1959 with his disapproval accordingly constituted

an effective veto thereof. The court thereupon dismissed

plaintiff’s suit as barred by the Statute of Limitations.

The sole issue in the case was whether H.R. 2717 was

‘‘preserted’’ to the President within the meaning of Sec-

tion 7 wher it was delivered to his Office on August 31, 1959.

1. The Passage of H.R. 2717. ‘‘A Bill for the Relief of

Eber Brothers Wine and Liquor Corporation’’, H.R. 2717,

86th Cong., 1st Sess. (1959), waiving the Statute of Limita-

3. 105 Cong. Rec. 19688, 19749 (Sept. 14, 19595.

4. The parties have so stipulated. Record, p. 29. The Findings

of Fact by the Court of Claims are set forth in Appendix B, infra,

p. 3a at pp. 21-42, and are cited herein as “Finding fe

5. Hereinafter referred to as “Section 7”.

4)

tions as to petitioner’s claim for the refund of an over-

payment of income taxes for its fiscal years 1947 and 1948,

was introduced in the House of Representatives on January

15, 1959 (Finding 2). The pill was duly referred to the

cognizant House Committee, which, having considered a

Ty asury Department report opposing passage of an iden-

tical bill previously introduced (see Record, pp. 16-17),

unanimously recommended passage (H. Rep. No. 118, 86th

Cong., Ist Sess. (4959)). The House passed the bill on

March 17, 1959 (Finding 2). The cognizant Senate Com-

mittee likewise unanimously recommended passage (S.

Rep. No. 758, 86th Cong., 1st Sess. (1959), reprinted at

Record, p. 13), and the Senate passed the bill on August

97, 1959 (Finding 2). The pill was duly enrolled, signed

by the presiding officer of the Senate and by the Speaker of

the House and sent to the Committee on House Administra-

tion for presentation to the President (ibid.).

2. Delivery of H.R. 2717 to the Office of the President.

On August 31, 1959, H.R. 9717, with twelve other bills,

was physically delivered to the White House by a clerk

of the Committee on House Administration (Finding 6).

All thirteen bills were accepted by Mr. Tom Jones, a legis-

lative clerk on the White House staff, who signed receipts

therefor in the customary form:

WHITE HOUSE

Washington, D. C.

Recervep from the Committee on House Administra-

tion of the House of Representatives the following

enrolied House Bills:

* * *

6

(See Findings 5, 6). The procedure thus followed for the

delivery and receipt of enrolled bills by Congress to the

President—by an agent of the Congress to a legislative

clerk of the White House, rather than personal delivery

to the President himself—has obtained ‘‘at least since

1931, and for some period of time prior thereto, the dura

tion of which is uncertain’? (Finding 5). Accordingly,

upon the reiurn to the House of Representatives of the

White House receipt for H.R. 2717, a notation was made in

the House Journal for August 31, 1959 in accordance with

the usual practice®:

‘“Mr. Burueson, from the Committee on House

Administration, reported that that Committee did on

this day present to the President for his ay proval a bill

of the House of the following title:

e * td

“TLR. 2717 * * * A bill for the relief of Eber

Brother Wine and Liquor Corporation * * *.”’ (italics

supplied ).’

a

The Journal for August 31, 1959, couitaining this notation,

was read and formally approved by the House the following

day: See 105 Cong. Rec. 17539 (Sept. 1, 1959).

3. The Expiration of Ten Days (Sundays Excepted)

without Presidential Action. Upon delivery of H.R. 2717

and the twelve other bills to the White House on August 31,

they were immediately referred by the President’s staff to

the Bureau of the Budget and were processed in the normal

6. The House is required to keep a Journal under the Constitu-

tion. U.S. Const. art. I, §5, cl. 3.

7. A similar notation appeared in the Congressional Record for

August 31, 1959 (Finding 6: 105 Cong. Rec. 16022 (Aug. 31,

1959) ).

7

manner in which bills are processed foliowing presentation

(Finding 7). H.R. 2717 was returned to the White House

with the recommendations of the Bureau of the Budget

and the Treasury Department on September 9 (ibid.). The

other twelve bills were approved by the President on Sep-

tember 8 and September 9, all within ten days following

their eclivery to the White House. The President, however,

took re action on ELR. 2717 until September 14, twelve days

(Sunday excepted) after its delivery. At that time he

returned Bi. 2717 with a message of disapproval to the

House of Representatives (Finding 2), which was then in

recess awaiting adjournment.

The Senate being notified later that day that a ‘*veto”’

message had been received, Senator Keating of New

York inquired on the floor of the Senate whether H.R.

9717 had uot automatically become law upon the expi-

ration of ten days (Sundays excepted) following its de-

livery to the office of the President on August 31, 1959.

The Presiding Officer of the Senate stated that the ques-

tion was ‘‘for the courts to decide:’’ 105 Cong. Ree. 19553

(Sept. 14, 1959). This colloquy on the Senate floor is set

forth in Appendix C, infra, pp. 6a-8a.

4. The President’s Absence. On August 26, 1959, five

days before the delivery of H.R. 2717 to the White House,

President Dwight D. Eisenhower left the United States for

Europe; he was to return on September 7 (Finding 8). On

the occasion of an earlier trip abroad to Geneva in 1955, the

Attorney General had suggested to the Presid« it:

‘‘that you confer with leaders in Congress so that

arrangements can be made under the law for enrolled

EE ean aes ee Rae ane ee te SOS en SES

8

bills or joint resolutions to be held in Congress until

your return.

‘‘In this way, your attention to the important mat-

ters raised in Summit Talks will not be diverted by

consideration of bills which may safely await your

return.

“Tf Congressional leadership believes that the mat-

ter is serious enough to warrant your immediate atten-

tion, it should be advised to forward the bill te the

White House with this understanding:

1. That the entries on the House and Senate Jour-

nals will carry the statement: ‘Delivery to the White

House for forwarding to the President.’’’ Memoran-

dum of Attorney-General Brownell, July 5, 1955, Plain-

tiff’s Exhibit 3, reprinted in Appendix C, infra, page

5a (italics supplied).

Prior to his departure for the trip here in question in

August 1959, the President had ‘‘indicated his desire’’ to

some unidentified person or persons on his staff that ‘‘so

far as possible, he wanted Congressional bills to be held in

Washington until his return’’* (Finding 17) (italics sup-

plied).

The President’s ‘‘desire’’, however, was not imple-

mented in the case of H.R. 2717 by either of the alternative

methods proposed by the Attorney General ‘in 1955: it

was not held in Congress until the President’s return, nor

8. The President’s “desire”, as thus found by the court, is am-

biguous as to the manner in which he desired bills to be held in

Washington, or as to what was understood by “‘so far as possible.”

Presumably, he meant ‘“‘so far as possible” under the Constitution.

The President might have meant (in accordance with the 1955 memo-

randum of Attorney-General Brownell (see text immediately supra) )

that he wished his staff to arrange, “so far as possible’, that Con-

gress delay delivering bills to the White House until his return, and

thus clearly delay their “presentation” to him.

9

did the House Journal reflect that its delivery to the Office

of the President was ‘‘for forwarding’’ to him.* Instead,

two of the President’s aides, Mr. Gerald Morgan” and

Mr. William Hopkins" ‘‘decided that * * * the bills re-

ceived [by the President’s Office] during [the President’ s]

absence should be stamped ‘Held for presentation to the

President upon his return to the United States’ ’’ (Finding

17), ‘language never before used on prior occasions of

Presidential absence from the country’’ (Finding 8). The

legislative clerks on the President’s staff were instructed

to place this stamp on all bills received at the White House

after the President’s departure and on all receipts for

such bills (ibid.).

Prior to the President’s departure on August 26, 1959,

the President’s Deputy Assistant for Congressional Af-

fairs, Mr. Bryce N. Harlow, ‘‘dis enss[ed] * * * the matter”’

with ‘Congressional leaders’’. The record, however, ‘‘does

not disclose what was said in these discussions’’, or even

which ‘‘Congressiona! leaders’? were present, “since, as

the President’s agent, Mr. Harlew did not deem it proper

at the trial to disclose the detail of the conversation’’

(Finding 8); nor is there any indication in the Record of

any congressional aciion whatsoever taken pursuant to

this ‘‘diseussion.”’

Despite the instructions given by the President’s aides

to the White House staff as te the ‘‘Held for presentation

* * **) stamp, the normal ‘‘Received’’ stamp was applied

9. On the cortrary, it recited that the bill had been * ‘presented to

the President” on August 31, 1959 (Finding 6). P

10. Deputy Assistant ty the President.

11. White House Executive Clerk.

10

to H.R. 2717 on August 31, 1959. Upon discovering his

error, the White House clerk who had receipted for the

bill asked the cognizant House clerk to return the original

receipt for restamping. When informed that the receipt

had already been placed in the files of the Committee on

House Administration, the White House clerk then asked

that a piece of paper bearing the new stamp be attached

to the original receipt; upon the advice of the Parliamen-

tarian of the House, this was not done (Finding 9). And,

as already noted, the House Journal states that H.R. 2717

Was

‘on this day [August 31, 1959] presented to the Presi-

dent for his approval’’ (Finding 6).”

5. Treatment of Other Bills During the President’s

Absence. <A total of 72 eurc!led bills were delivered to the

White House while the President was abroad (Finding 12).

70 of these bills were acted upon within ten days (Sundays

excepted) from the time of such delivery (Finding 13).”*

One (S. 994) was approved twelve days after delivery to the

White House (Finding 14), a mere surplusage if delivery

was ‘‘presentation.”’ The seventy-second bill was H.R.

2717. Accordingly, no other bill delivered to the White

12. The enrolled bill bears the stamp ‘“‘PRESENTED TO THE PRES!-

DENT Sep 7 1959” (Finding 10) ; that stamp was affixed by a presi-

dential clerk after the bill had been disapproved by the President on

September 14, 1959 (Finding 17).

13. Whether or not one of these 70 bills, H. R. 6596, was acted

upon within ten days is an open—although moot—question. If the

bill was “presented” on September 3, the date of its delivery to the

White House, it was subjected to a pocket veto on September 15.

If it was “presented” on September 7, the date of the President's

return, the purported “veto” of the bill by the President on September

16 may be valid (although Congress had previously adjourned ).

(see Finding 13n.)

11

House during President Hisenhower’s absence preseats the

question raised in this case.”*

Despite the President’s ‘‘desire”’ that ‘‘so far as pos-

sible’? bills be held in Washingt »n, six bills delivered to

the White House during his absence were in fact flown to

him in Europe by his staff. One of these (H.J. Res. 510)

was delivered to the White House two and a half hours

after the delivery of H.R. 2717. It was signed in Paris

three days later on September 3. Indeed, the President,

while in Paris, on the same day vetoed S. 2539, which had

been delivered to the White House only the day previous,

September 2; the disapproved bill was returned to the

Senate on September 4.

In addition, 23 bills which had been delivered to the

White House before the President’s departuve on August

26, 1959 were also flown to Europe for action by him: in

the view of the President’s staff, ‘‘the President had but

ten days from the date of delivery to the White House in

which to act on the bills’’ since ‘‘tne President was in the

United States at the time the bills were delivered to the

White House’’ (Finding 15).

Reasons for Granting the Writ

The Importance of the Question

One of the great debates of the Constitutional Conven-

tion of 1787 concerned the respective roles of the Congress

and the President in the enactment of laws. Article I,

14. But, as the court below noted, the problem is likely to recur

with increasing frequency. Opinion, p. 4.

12

Section 7, Clause 2 of the Constitution (set forth supra, pp.

2-3) embodies the resolution of that controversy."* Under

that provision, bills become law in one of three ways:

(1) By passage by both Houses of Congress, followed

by the approval of the President ;

(2) By re-passage by a vofe of two-thirds of each

House of Congress after timely return to the originating

House with the objections of the President;

(3) By the expiration of ten days (Sundays excepted)

following presentation to the President of a bill passed by

15. As to the history of the determination to grant the President a

qualified rather than an absolute veto, see the following :

a. The Colonial Experience.

Fisher, The Evolution of the Constitution of the United States

17-18, 95-96, 161-167 (2d ed. 1910), hereinafter cited as Fisher;

4 Elliott, Debates in the Several State C onventions on the Adop-

tion of the Federal Constitution 620-21 (1836); 4 Lincoln, The

Constitutional History of New York 494-496 (1906), hereinafter

cited as Linceln; Bryce, The American Commonwealth 56-59 (3d

ed. 1907); Beard, “Veto Power”, Cyclopedia of American Govern-

ment 613 (1914); Norton, The Constitution of the United States

4i (1940) ; 2 Baker, The Fundamental Law of American Constitu-

tions 381 (1916).

b. The State Experience: 1776-1787.

N. Y. Const. (1777) ; Mass. Const. (1780) ; Warren, The Mak-

ing of the Constitution 185 (1928) ; Farrand, The Framing of the

Constitution 145-146 (7913); Fisher 17-18, 83-85, 95-96, 161-167 ;

Dougherty, Constitutional History of the State of New York 51-52

(2d ed. 1915); Frothingham, A Brief: History of the Constitution

and Government of Massachusetts 94 (1916); 1 Lincoln 504-505,

554-555, 589; 4+ Lincoln 494-496.

c. The Convention.

1 Farrand, Records of the Federal Convention 93-114, 138-44

(Rev. ed. 1937) ; 2 Farrand, supra, 73-80, 298-302, 563-64, 585-87 ;

Notes of Maj. W'm. Pierce, printed in The Formation of the Union

93-94 (House Doc. No. 398, 6%h Cong. Ist Sess.) (1927); The

Federalist, Nos. 69, 73 (Hamilton).

13

both Houses of Congress, the President not having re-

turned the bill to Congress with his objections and Con-

gress not having adjourned within that period.

These methods have been considered by this Court on

five oceasions. As to the first methed, this Court held

that the President’s approval! was effective if given within

ten days after presentation, although Congress was in tem-

porary recess when approval was given. La Abra Silver

Mining Co. v. United States, 175 U. S. 428 (1899). It was

subsequently held that such approval was effective although

Congress had, in the meantime, adjourned. Edwards v.

United States, 286 U. S. 482 (1932). The second method was

treated in Missouri P. Ry. Co. v. Kansas, 248 U. S. 276

(1919), in which this Court held that a timely veto could be

overridden by a two-thirds vote of a quorum of each House,

rather than of the entire membership. The other two cases

involved the third method. In The Pocket Veto Case, 279

U. %. 655 (1929), it was held that the ‘‘adjournment”’ re-

ferred to in Section 7 included an interim adjournment be-

tween sessions, so that a bill did not become law by this

method when Congress had begun such an adjournment less

than ten days following presentation of the bill without the

President having returned it. And in Wright v. United

States. 302 U. S. 583 (1938), it was held that delivery of a

bill with a message of disapproval to the secretary of the

Senate while the Senate was in temporary recess consti-

tuted a valid ‘‘return”’ of the bill to the Senate, so that the

pill did not become law by this method, such delivery having

been made within ten days of presentation of the bill to the

President.

While each of these cases involved, in one or another

sense, questions of when the ten-day period for Presiden-

14

tial action was applicable, or of what constitutes effective

Presidential action within that period,’® none of them di-

rectly involved the equally important question of what

action is constitutionally required to begin the ten-day

period within which the President can effectively disap-

prove a bill while Congress is in session. In brief, this

Court has not yet directly held what constitutes ‘‘ presenta-

tion’’ of a bill to the President.

The question is of great importance, is directly pre-

sented by this case, and it should now be decided by this

Court.’ That it has historically been a matter of consid-

erable doubt is reflected in the conduct and opinions of

Presidents,’* Congresses,’® and Attorneys-General.”° It is

16. The Court resolved these questions often only after decades of

uncertainty. See, e.g., Edwards v. United States, supra, at 487-90.

Thus, for exam,.le, William Howard Taft could write in 1916 that

the President could not sign a bill after an adjournment of Congress,

although he might do so during a recess. Taft, The Presidency 23

(1916). And, until 1932, Presidents customarily repaired to a special

office at the Capitol to sign bills prior to Congress’ adjourn:nent.

17. See Anthony Lewis, writing on the instant case in The New

York Sunday Times, Sec. 4, p. E7, cols. 2-4 (Oct. 25, 1964) :

“One of the astonishing things about this country’s constitu-

tional history is how long it has taken for some basic clauses of

the Constitution to receive an authoritative interpretation from

the Courts.”

18. See, e.g., Findings 21, 23 as to the conduct of Presidents F. D.

Roosevelt and Eisenhower; see also Finding 22 n. 32 as to such

doubt on the part of the State Department.

19. See, e.g., Remarks of Senator Keating, 105 Cong. Rec. 19553-

54 (Sept. 14, 1959), reprinted in Appendix C, infra; Zinn, The Veto

Power of the President, 12 F. R. D. 207, 220-24 (Report of Law

Revision Counsel to the Committee on the Judiciary of the House of

Representatives) (1951), concerning the “inadequacy” of this Court’s

interpretations of Section 7.

20. See, e.g., Memorandum of Attorney-General Biddle dated

November 10, 1943, set forth in Finding 21; Memorandum of At-

torney-General Brownell dated July 5, 1955, Plaintiff's Exhibit 3,

set forth in Appendix C, infra, p. 5a.

15

a question which is likely to arise with increasing fre-

quency, as the Court below noted:

‘‘Tf the recent past is indeed a prologue, the question

cannot be dismissed as transient. The combination of

increased presidential mobility and concern with for-

eign affairs together with prolonged congressional ses-

sions is likely to result in a recurrent pattern of presi-

dential travel abroad even while Congress is sitting.

The problem will doubtless endure.’’ Opinion, p. 4.

See also Wright v. United States, supra, where on analo-

gous facts, certiorari was granted ‘‘[i]n view of the im-

portance of the question’’ (302 U. S. at 586). It is sub-

mitted that the question presented in tke instant case—

the reciprocal to that in Wright—is ne less important.

The Rationale of the Decision Below: The

President’s Qualified Right Unilaterally to

Demand Personal Presentation

The decision of the court below cannot be regarded as

authoritatively settling the question. Among other things,

it appears to us to be at variance with expressions of this

Court in Wright v. United States, supra, as to which, see

mfra, pp. 21-23. Moreover, to the extent that the decision

below ts treated as defining the constitutional requirements,

it enunciates a constitutional test incapable of sure and

certain application by reference to official and public rec-

ords, so as inevitably to raise doubts as to whether par-

ticular Acts of Congress have indeed become Laws of the

United States.

The court below said, and we agree, that any construc-

tion*#f Section 7 must be tested in terms of ‘‘eras of

16

hostility, coolness, partisan tactics or simple lack of con-

cern,’’ rather than in terms of periods of cooperative

understanding as between the Exeentive and Legislative

branches. Opinion, p. 8. For this reason, among others,

the failure of the court below to provide a clear and certain

constitutional test, so that the constitutional status of bills

raay readily be ascertained during suck times, demonstrates

that its construction of Section 7 is not viable.

Holding that delivery of H.R. 2717 to the Office of the

President at the Seat of the Government by an agent of

the Congress on August 31, 1959 in accordance with time-

honored procedure did not constitute ‘‘presentation’’ of

the bill to the President within the meaning of the Constitu-

tion, the court adopted as its central propositions: (i)

that personal presentation to the President is not required

by Section 7 ;** but (ii) that the President is constitutionally

empowered to demand such presentation. In the court’s

view, the President may, at his sole option, either ‘*insist

that bills be presented to him personally’’, or «dispense

with personal presentation and accept bills through some

other procedure.”’ Opinion, p. 9.

In fact, as the court found, ‘‘some other procedure’’—

consisting of delivery to the Office of the President in the

White House at the Seat of the Government in Washington,

D. C.—has obtained, without variation, for at least the

past forty years (Finding 6). This ‘‘other procedure”’

was followed as io H.R. 2717 precisely as it has been as to

countless other bills over the years (ibid.). Having, how-

ever, postulated that the President had the power uni-

21. The court could not comfortably have held otherwise, since

delivery to the White House has generally been treated as “presenta-

tion” since at least 1931 (Finding 5).

17

laterally to terminate this ‘‘other procedure’’, the court

went on, ex necessitate, to qualify the conditions of its

exercise. Thus the court held:

(a) that as a prerequisite to hic exercise of this

power, the President must have informed Congress

‘sin some manner’’ that the ‘‘other procedure’’ had

been terminated and that personal presentation would

thenceforth be required? Opinion, p. 9.

Once the President has so informed Congress, said the

court, Congress is obligated to present bills to him per-

sonally. But the court further limited this requirement

(b) if personal presentation is demanded, the Pres-

ident must make himself ‘‘reasonably available’’ for

such presentation. Opinion, pp. 9, 10, 11n.

Additionally, the presentation required is not truly per-

sonal, since the court added:

(c) that an ‘‘equivalent’’ to personal presentation

would be ‘delivery to an aide in the immediate vicinity

of the President.’’ Opinion, pp. 9, 10, 11n.

The opinion of the court below does not in terms limit

the right of the President to demand personal presenta-

tion to those occasions when the President is abroad,”* and,

22. It is, of course, apparent that, absent some such limitation, the

President could defeat all Congressional efforts to present bills to

him according to a traditional method by a private, uncommunicated

resolve to terminate the practice.

23. The President's staff, however, have invariably treated deliv-

ery to the Office of the President while he is in the country as presen-

tation, although he may be far from the Seat of the Government.

Findings 15, 23. The court below characterized this practice as

merely “precautionary” rather than “determinative”. Opinion, p. 12.

In the court's view, the President can demand personal presentation

“if he wishes” (Opinion, p. 9), “when he feels it important” (Opinion,

18

indeed, we see no rational basis for so limiting his power,

once it is granted that some such power exists. Neither the

terms of the Constitution nor the opinion below conditions

the exercise of presidential power in general, or specifically

his power to receive, approve or disapprove bills, upon the

personal locus of the President (cf. Opinion, p. 6 and au-

thorities there cited): indeed, the President received, ap-

proved and disapproved bills while abroad on the trip in

question. Nor can distance per se justify the creation of a

constitutional power in the one instance and not in the

other: when the President is in Paris he is closer to Wash-

ington than when he is in Honolulu.*

Delivery of Bills to the President’s Office at the Seat of

the Government Constitutes Adequate “Presenta<ion.”

The ten-day proviso of Section 7, limiting the Presi-

dent’s power to disapprove a bill while Congress has not

yet adjourned, is found at the end of the Section, after the

provision giving Congress the power to override a presi-

dential veto. The Constitution having conferred on the

President only a qualified, and not an ubsolute veto, the

purposes of the ten-day limitation are clear enough: to

deprive the President of the power to delay the effective-

p. 11), or whenever the traditional system “becomes inconvenient or

burdensome to him” (Opinion, p. 10).

Article II, Section 1, Clause 5 provides that the Office of the

President shall devolve on the Vice President in case of the Presi-

dent's “Inability to discharge the Powers and Duties” of the Office.

It has not yet been suggested that the President's absence abroad in-

capacitates him from discharging his powers and duties to receive

bills and to act upon them in accordance with Section 7.

24. Bills delivered to the White House during President Eisen-

hower’s 1960 Far East visit were stamped “Presented to the Presi-

dent” as of the day he landed in Hay. on his return {Finding 23).

i9

ness of laws beyond the allotted period without affording

Congress the opportunity by an appropriate vote to make

its bills into laws despite the President.”” Story, Commen-

taries on the Constitution of the United States §891 (5th

ed. 1891); Black, Handbook of American Constitutional

Law 122 (4th ed. 1927). Moreover, the time limitation has

the very practical effect of limiting the time the President

may force Congress to remain in session. For if the Pres-

ident could effectively delay the return of bills, Congress

would have to remain in session to receive his messages

of disapproval, however long delayed, or surrender its

power to override his veto.”®

The question presented by the rationale of the decision

below is thus whether the President can, by absenting him-

self from the Seat of Government and by demanding per-

sonal presentation, require Congress, if it is to preserve

its power to enact laws over Presidential veto, to remain in

session for the additional period physically required to

effect personal delivery in some other part of the world.

The constitutional question arises in the present case in the

context of modern, instantaneous communication, and

25. One of the central complaints articulated in the Teclaration of

Independence was the Crown's neglect to attend to laws presented

for his approval, and consequent suspension of their effectiveness.

26. The significance of this element of delay is apparent in this

case, The President returned to the United States on September 7,

and Congress adjourned at 6:22 a.m. on September 15. If bills were

not deemed presented until the President’s return, Congress could

have been required to stay in session until after September 18 in

order to insure itself an opportunity to override his vetoes.

The Houses of Congress determine the date of their adjournment,

excer. in case of disagreement between the two Houses, in which case

the President decides. U. S. Const. art. I, §5; U. S. Const. art. EE,

§3.

20

relatively easy and rapid transportation. The governing

constitutional clause, however, was written when commu-

nication and travel were slow, inconvenient, and unreliable,

and when it was simply not to be thought of that the

President might be in Europe while Congress was in ses-

sion. That the Framers did not adopt any principle of

‘‘personal preseniation’’. of Congressional bills to the

President while abroad is evident enough from this: that

a bill ‘‘personally presented’’ to the President ii London

or in Paris in 1789 and immediately acted upon by hir

could not, in those days, physically have been ‘‘returned”’

to the Cougress by the fastest means then available within

the ten days allotted after presentation.

The truth is that the notion of ‘‘personal presenta-

tion’’ of bills to the President while abroad during a Con-

gressional session was simply inconceivable under 18th

Century conditions, while such a doctrine is entirely un-

necessary under modern conditions. 27 And, we submit, the

principle that the President may leave the Seat of the

Government and the country during a Congressional ses-

sion, and require the Congress to send messengers after

him to effect presentation of bills, leaving the risks and

delays of such delivery with the Congress, not the Presi-

dent, is not in keeping with the narrowly circumscribed

powers over legislation conferred upon the Executive.*

We submit that the purposes and structure of the clause

27. See p. 11, supra.

28. We may wonder at the prospect of the Congress applying to a

foreign Government for a visa to permit Congress’ messenger to en-

ter the territory of that Government for the purpose of effecting

presentation of Acts of Congress to the President while in that coun-

try.

21

are best served by a construction which holds that delivery

of bills by Congress to the Office of the President at the

Seat of the G» ernment is ‘‘presentation’’ to the Presi-

dent, though the President be temporarily absent.

In Wright v. United States, 302 U. S. 583 (1938), this

Court held that the President had effectively ‘‘returned”’

a disapproved bill to the originating House within the

meaning of Section 7, prior to the expiration of ten days

following its presentation, by delivering it to the secretary

of the Senate, notwithstanding that the Senate itself was

then in recess. Holding that Congress could not frustrate

the President’s power to ‘‘return’’ a bill within the pre-

seribed time by going into temporary recess, the Court

analogized the ‘‘return’’ to the very situation at bar—the

presentation of a bill to the President during his absence

from the White House:

‘There is no greater difficulty in returning a bill to

one of the two Houses when it is in recess than in

presenting a bill to the President by sending it to the

White House in his temporary absence. Such a pres-

entation is a familiar practice:’’ 302 U. S. at 590.

Just as Wright held that Congress could not by its recess

defeat the President’s right effectively to return a bill

within the ten-day period allotted, we submit that the

President may not by his absence from the Seat of the

Government frustrate or delay Congress’ right effectively

to present a biil, so as to begin the ien days’ running.

The court below distinguished Wright solely on the

basis cf the reference in Wright to the secretary of the

Senate as the Senate’s ‘‘accredited agent”’ (see Opinion,

22

p. 14, n. 17) ; in this case, however, it found the President’s

legislative clerk not so ‘‘aceredited’’, his ‘‘authorization”’

having been revoked. But the secretary of the Senate was

only constructively deemed in Wright to be ‘*accredited”’

for the purpose of receiving bills, in order to effectuate

the President’s constitutional right to return bills to the

Senate during its recess. As the concurring opinion in

Wright points out (302 U. S. at 599-600), there was

nothing in the majority opinion to indicate that the Court

was relying upon any actual ‘‘anthorization’’ of the secre-

tary by the Senate to receive the return of bills during its

recess; or that the secretary was the Senate’s ‘‘agent’’ in

any general or private sense.

The principle for which petitioner eoutends, and which

Wright supports—that delivery of bills to the President’s

Office is ‘‘presentation’’—leaves adequate room for prac-

tical arrangements to be made, with the concurrence of the

Congress, to adapt the law-making process to necessary

presidential absence from the Seat of the Government. As

at least two Attorneys-General have suggested,”* the offi-

cers and committees of the Congress may, at the request

of the President, withhold the signing or delivery of bills

to the White House and so delay their presentation under

Section 7, if the Congress is persuaded that presentation

should be thus delayed.

We think that the power to delay presentation when the

President is absent must reside in Congress, rather than, as

the lower court concluded, in the President, since the ten-

day clause is intended to be a limitation upon the Presi-

29. Memoranda of Attorneys-General Biddle and Brownell, supra,

p. 14 n. 20.

23

dent’s power, and since it is the President who decides

whether or not he will be absent. And just as the President

must be able to fix the date of return, regardless of Cen-

gress’ temporary absence, to prevent Congress from lemit-

ing his power of qualified veto (Wright v. United States,

supra, 302 U.S. at 596-97), so Congress must be able to fix

the date of presentation to prevent the President from

expanding his power of qualified veto.

The Constitutional Scheme Envisioned by the

Decision Below is Uncertain and Unworkable

If the writ is granted, petitioner will argue that the

only principle which workably fulfills the constitutional

scheme is that Congress may at any time ‘‘present’’ bills

to the President under Section 7 by delivery to his Office

at the Seat of the Government. The alternative consti-

tutional scheme envisioned by the court below makes it

uncertain whether particular Acts of Congress have been

‘presented’? in accordance with Section 7 when the Pres-

ident is absent from the Seat of the Government. This

result follows ineluctibly from the conditions and qualifi-

cations which the Court found necessary to place on its

basic principle that the President can unilaterally demand

personal presentation.

Recognizing that an unlimited unilateral power to de-

mand personal presentation would permit the President to

stop the law-making process by the expedient of making

himself unavailable for personal presentation and would

be wholly inconsistent with the constitutional scheme, the

court below imposed several additional limitations: the

President must make himself ‘‘yeasonably available’? for

personal presentation; Congress may deliver pills to an

<A Ae EN Se are

24

‘‘aide in the immediate vicinity’’ of the President as the

‘‘equivalent’’ to personal presentation; and the President

must ‘“‘inform’’ Congress in some way that he requires

personal presentation. See Opinion, pp. 9, 10, 11 n. In

so limiting its principle of personal presentation, the court

below has only substituted the inescapably uncertain for

the absolutely unthinkable.

A. “‘Reasonably available.’’ If the Constitution im-

poses an obligation on the President to make himself ‘‘rea-

sonably available’’ for the presentation of bills, two ques-

tions immediately suggest themselves:

1. What is ‘‘reasonably available’’?

2. What follows if the President is not ‘‘reason-

ably available’’?

That the Court of Claims answered neither question is

not surprising. A general standard of ‘‘reasonableness’’

requires ad hoc, after-the-fact decision in litigation in cases

concerning the effectiveness of particular Acts of Con-

gress. It is, for this very reason, unsatisfactory as a

principle for determining whether and when bills have

been ‘‘presented’’ to the President. The country should

not have to wait for a court to decide whether the Presi-

dent’s unavailability in a given instance was ‘¢reasonable’”’

or ‘unreasonable’? under all the circumstances before it

knows whether a particular Act of Congress has become

law.”

30. Ouaere, whether the question cf the President's “reasonable

availability” would not be a question of fact for a jury in private

litigation (to which the United States wou!d not necessarily even be

a party), determinable by reference not only to the physical acces-

sibility of the President, but also to the Presidential commutments

which made it necessary for him to be physically inaccessible for

varying periods.

25

And if the President fails to make himself ‘‘reasonably

available’? for presentation of bills, may Congress then

deliver such bills to the Office of the President at the Seat

of the Government? Does the ten-day period then begin

on the first day the President is found to have made him-

self ‘‘unreasonably unavailable’’? All these preliminary

questions—akin to questions of personal service in private

litigation—could cast in doubt the very existence of laws,

once one accepts the notion that the President may declare

that a formal, institutional delivery of bills to his Office

shall not constitute ‘‘presentation.’’ *

B. Informing the Congress. Having found that to alter

the customary procedure of ‘‘presentation’”’ by delivery to

the President's Office, the President must ‘‘inform’”’ the

Congress that he requires ‘‘personal presentation’’, the

Court concluded that Congress was adequately informed

in this case:

‘The Congress was informed of this procedure [that

bills would be held by the White House staff until the

President’s return] by a ]’residential aide before the

President departed.’’ Opinion, p. 14.

The conclusion and the evidence upon which it was based

dramatically demonstrates the unworkability and error of

the lower eourt’s qualified principle of personal presenta-

tion.

31. Finding that an “ey:ivalent” to actual persoxal delivery to the

President is “delivery to an aide in the immediate vicinity of the

President” (Opinion, p. 9) seems to us incompatible with the underly-

ing principle that the President may revoke the authority of his Office

at the seat of the Government. If the court holds that a constitution-

ally irrevocable authority exists for presentation to aides in the Presi-

dent's vicinity, why does not a similar constructive authority exist at

the permanently fixed Seat of the Government (see U. S. Const. art I,

$8, cl. 17) where bills have traditionally been presented to the Presi-

dent ?

26

For there is no official document or record of any Presi-

dential action either (a) informing Congress that bills had

to be delivered to him personally during his trip in order

to effect presentation, or (b) declaring that H.R. 2717 was

n° ‘‘presented’’ to the President when delivered to his

Office on August 31, 1959, other than « stamp placed upon

the enrolled bill by the President’s Office after the ten days

following delivery to his Office had already expired (Find-

ing 17). No message was sent to Congress reflecting the

President’s alleged decision that delivery to his office would

not be ‘‘presentation’’ (cf. Memorandum of F. D. Roosevelt

dated November 10, 1943, reprinted in Finding 21). No

Public Proclamation or Executive Order was published in

the Journal of either House, in the Congressional Record

or in the Federal Register. The official Journal of the

House and the Congressional Record indicate to this day

that H.R. 2717 was ‘‘presented’’ to the President as of the

date of its delivery to his Office (Finding 6). And, when

the Senate was informed of the President’s veto message

on the eve of its adjournment, on September 14, 1959, one

Senator inquired whether it had not already become law

(Appendix C, infra, pp. 6a-8a) as the official Journal en-

tries showing presentation on August 31 indicated; he was

advised that whether or not it was a law was now a ques-

tion for the courts.

When the issue did come to court, we find that, ac-

cording to the decision below, the question of whether the

bill is a law depends not upon official records but upon

oral testimony by a former Presidential aide concerning

a ‘‘diseussion’’ between himself and some ‘‘Congressional

~ |. = *

27

leaders.’’ *2 Who those ‘‘leaders’’ were, and whether they

were in fact the Congressional leaders from the Presi-

dent’s (minority) party was not disclosed. Nor was it dis-

closed what was said in that ‘‘diseussion’’, since the aide

refused to divulge such information at the trial on the

grounds that he was acting as a Presidential agent (Find-

ing 8).

In sum, the constitutional precept announced by the

Court below contemplates that whether or not an Act of

Congress was ‘‘presented’’ to the President, and whether

or not it became law, shall depend, not upon official rec-

ords, but upon how far present or former presidential

aides, will go, years after the fact, to disclose the details

of conversations with ‘‘Congressional leaders’’, and how

far they can successfully invoke claims of official secrets.

Only thus, it seems, are we to discover whether Congress

was ‘‘informed’’ that formal delivery of bills to the White

House was no longer to be deemed ‘‘presentation’’, and

consequently whether a particular bill which, according to

all public records, was ‘‘presented’’ to the President on a

certain day was in fact ‘‘presented’’ on that dey. The

uncertainty and possible abuse to which such a principle

can be subject need not be dwelled upon. If anything

is clear, it is that some better principle is required to de-

termine whether an Act of Congress has been ‘‘presented”’

to the President.”

32. Since the question of whether an Act of Congress has become

a law may arise in cases to which the United States is not a party,

such testimony may be given without the Government being repre-

sented.

33. The Pocket Veto Case, supra, is replete with concern that

publicity and certainty attend all phases of the process of the return

of a bill to Congress. See 279 U. S. at 684-685. In Wright.

28

The “Ground” of Congression”l “Acquiescence”

The court below, having stated its interpretation of

Section 7 in Part I of its Opinion, went on to conciade

in Part II that Congress had acquiesced in the Presi-

dent’s decision that bills delivered to the White House

would be received ‘‘only for presentation to him upon

his return to the United States.’’ It is apparent, how-

ever, that the court’s reference to Congressional acqui-

escence did not purport to provide an independent ground

of decision. On the contrary, the court’s reference to

‘‘aequiescence’’ follows the statement in the same para-

graph at page 14 of the court *s opinion that:

‘‘'The President] was free to decide, as he did, that

during his absence bills would be received at the White

House only for presentation to him upon his return to

the United States.’’

Congressional ‘‘acquiescence,’’ in the court’s own reason-

ing thus turns on the main question at issue: whether the

President had the unilateral power under the Constitution

to determine that bills delivered to his office were not ‘‘pre-

sented’? to him. Indeed, this is made even clearer by

the act which the court found to constitute Congressional

acquiescence :

‘‘The Congress, if it did not agree, could have sent

the bills io the President in Europe. But it did not

supra, the Court distinguished The Pocket Veto Case by noting

that return during a three-day recess of the Senate does not re-

sult in “keeping * * * the bill in a state of suspended animation

with no certain knowledge on the part of the public whether it was

seasonably delivered. * * *" 302 U. S. at 595. It is, of course, ap-

parent that the procedure which the Court found adequate in this

case for the President’s “informing” Congress of a requirement of

personal presentation results in precisely the uncertainty which so

concerned this Court.

29

take that course. * * * By failing to take the one step

which would have had that effect [of ‘‘accelerating”’

presentation ]—sending the bill abroad through tts own

messenger—the House must be taken to have acqui-

esced in the President’s new arrangement.””.. Opinion,

p. 14 (emphasis added).

But the act which the Court suggested would evidence non-

acquiescence by Congress—personal presentation by Con-

gressional messenger to the President abroad—would ap-

pear rather to evidence Congressional acquiescence in the

President’s right unilaterally to demand personal presenta-

tion. Non-acquiescence in the President’s assertion of

power to demand personal presentation would seem more

clearly evidenced by a refusal to deliver bills abroad anda

continuation of the policy of delivery to the President’s

Office.

The proposition that Congress could have ‘‘acceler-

ated’? presentation by sending bills abroad, and that Con-

gress accordingly acquiesced by not so ‘‘accelerating”’

presentation is obviously grounded upon the assumption

that delivery to the White House does not constitute pres-

entation when the President has so declared. Since that

proposition assumes the power in dispute, it does not

constitute a separate ground of decision.

Conclusion

Whether or not a Dill has been ‘‘presented’’ to the

President within the meaning of the Constitution requires

a rule which is both simple and certain in its application,

and compatible with the general scheme of the Constitu-

tion. A rule that the President may, without limitation,

~ or Sr Teal +e PRE

aA Onan ae Se Ee ams = sane Gee en ae dene nee ta yon - ae Sy ‘3 ——_

ae Jay = -

30

require pe. onal presentation is not compatible, as the

court below itself concluded, with the basic constitutional

scheme limiting his veto power. A presidential power to

require personal presentation, with the qualifications pro-

posed below, may be less at variance with the basic

scheme, but only at the price of introducing inadmissible

uncertainties as to whether the qualifying conditions have

been met. The only principle consistent both with the in-

tention of the Framers and with the need for clarity

and certainty is that delivery of bills by Congress to the

Office of the President at the Seat of the Government con-

stitutes ‘‘presentation’’ within the meaning of the Consti-

tution, and that the President may not unilaterally require

some other mode of presentation.

For the foregoing reasons, it is respectfully submitted

that this petition for a writ of certiorari should be granted.

Respectfully submitted,

Justin N. Fe,tpMan

Attorney for Petitioner

777 Third Avenue

New York, New York 10017

Of Counsel:

Hersert PraSHKER

Rosert B. SHaprro

and

Po.etti Fremin PrRasHKER

FetpMan & GaRTNER

of New York City

January 14, 1965.