Brief for the United States in Opposition — International Union, United Automobile, Aerospace & Agricultural Implement Workers v. Fafnir Bearing Co.

INDEX

i CORE ERTS RE SEE on CET WO ED 1

I accents 1

SS CL ee 1

Constitutional provision involved____________- 2

CERES ASF lt SS Tee Ree tee ee ET 2

RRS SE ACTER Hs aan ote a Co eS 6

a ee Sa eh Sayer Once rea Do 11

CITATIONS

Cases:

Edwards v. United States, 286 U.S. 482____ 6

La Abra Silver Mining Co. v. United

i: OU oleh ii aieceeeetestce he deseievinoeecheoen 7

Pocket Veto Case, The, 279 U.S. 655_____- 6

Wright v. United States, 302 U.S. 583_____ 6, 10

Constitution:

Constitution of the United States: ~

Article I, Section 7, cl. 2.............. 2,6

Miscellaneous:

105 Cong. Rec. (Part 15) 19697, 86th

Cong., 1st Sess., Sept. 14, 1959_.._______ D

Bi Eg IE iis tcsinccseicn sik cnstetntaicnecemes 3-5

766-834—65

Gn the Supreme Gourt of the Wnited States

OcroserR TERM, 1964

No. 825

Eser Bros. WINE & Liquor CORPORATION, PETITIONER

v.

Unitep States oF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF CLAIMS

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the Court of Claims (Pet. App. B,

1-42) is reported at 337 F. 2d 624.

JURISDICTION

The judgment of the Court of Claims was entered

October 16, 1964. The petition for a writ of certiorari

was filed January 14, 1965. The jurisdiction of this

Court is invoked under 28 U.S.C. 1255(1).

Whether the court below correctly held that, in

light of the particular circumstanees involved in

this case, the President’s veto of a private relief bill

(1)

— ee

2

was exercised within the 10 day period prescribed by

Article I, Section 7, Cl. 2 of the Constitution.

CONSTITUTIONAL PROVISION INVOLVED

Article I, Section 7, Cl. 2 o* the Constitution of

the United States provi tes:

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 approves

ne 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 Ob-

jections 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 Objec-

tions, 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 pre-

yent its Return, in which Case it shall not be

a Law.

STATEMENT

This suit was brought by petitioner in the Court of

Claims for a refund of an ineome tax overpayment.

3

It is undisputed that unless HR. 2717, 86th Congress

(a private bill for the relief of petitioner) became

law upon the expiration of ten days (Sundays ex-

cepted) after presentment to the President, petition-

er’s claim is barred by the statute of limitations. If

H.R. 2717 did become law, petitioner admittedly is

entitled to recover.

H.R. 2717 passed the House of Representatives on

March 17, 1959 and the Senate on August 27, 1959

(Finding 2; Pet. App. B, 22). The purpose of the

bill, as already noted, was to waive the statute of

limitations as to petitioner and allow its claim to be

considered on the merits (Pet. App. A, la; Finding

2; Pet. App. B, 22). On August 31, 1959, in accord-

ance with the customary procedure, the bill was deliv-

ered to the White House by a messenger of the House

of Representatives.

At that time, President Eisenhower was outside the

United States on an official visit to various NATO

countries. He had departed on August 26 and did

not return until September 7, 1959. Prior to his de-

parture, the President had sent one of his assistants

to discuss with Congressional leaders the matter of

handling legislation during the President’s absence.

The Congressional leaders were informed that clents

at the White House had been instructed to stamp on

all bills delivered by Congress while the President

was away, and on all receipts for such bills, the words

‘‘Held for presentation to the President upon his re-

turn to the United States.” (Finding No. 8; Pet.

App. B, 25-26.)

Notwithstanding these instructions, on August 31,

4

1959, when H.R. 2717 was brought to the White

House, the legislative clerk inadvertently failed to

stamp on it the words ‘‘Held for presentation to the

President upon his return to the United States.”

Instead, he signed the receipt as he normally did

when the President was not away. Later that same

day, when he became aware of his oversight he at-

tempted to add to the receipt the “Held for presen-

tation * * *” language. This fact was brought to the

attention of the House (Finding 9; Pet. App. B, 26-

28).

The Journal of the House and the Congressional

Record for August 31, 1959 contained the statement

that the Committee on House Administration ‘‘did on

this day present to the President for his approval a

bill of the House of the following title: oe * Ee.

9717 * * *2’ Exeept for H.R. 2717 and other bills

delivered to the White House at the same time, all

bills delivered during the President’s absence, both

prior to and after August 31, 1959, were stamped with

the “Held for presentation * * *” language. The

delivery of House bills indorsed with this stamp was

reflected .in the House Journal and Congressional

Record with the notation ‘did * * * deliver to the

White House for presentation to the President, for

his approvai * * *” rather than with the notation,

“did * * * present to the President for his appro-

val * * *’’, used for H.R. °T17 and the other bills

delivered at the same time (tbtd.).

On September 7, 1959, the date of President Eisen-

hower’s return to the United States (Finding 8; Pet.

App. B, 25), a stamp was placed on H.R. 2717 stating

5

that it was presented to the President on that date

(Finding 10; Pet. App. B, 28). Seven days later, on

September 14, 1959, H.R. 2717 was returned to the

House of Representatives by the President with a

veto message.’ It was neither reconsidered by the

House nor published as a private law. Congress was

in session at all times relevant to these happenings

and did not adjourn until the early morning of Sep-

tember 15, 1959 (Finding 11; Pet. App. B, 28).

Petitioner contended in the Court of Claims that

the delivery of the bill to the White House on August

31, 1959, started the running of the ten-day period

prescribed by the Constitution for the vetoing of a

bill, and that the veto on September 14, 1959, was

therefore untimely and ineffective. The Court of

Claims, in a comprehensive and well reasoned opinion

by Judge Davis, rejected petitioner’s contention. The

court held that the President’s veto operated to pre-

vent H.R. 2717 from becoming law and that petition-

er’s claim was therefore barred. The court stated

that “though personal presentation to the President

is not mandatory, either the Congress or the Presi-

dent can insist on such delivery. If personal delivery

is not demanded by either side, presentation can be

made in any agreed manner or in a form estabiished

by one party in which the other acquiesces” (Pet.

App. B, 8). Applying that principle to the instant

ease, the Court of Claims concluded that the Presi-

dent was free to decide that bills delivered to the

White House during his absence from the United

‘The President’s veto message is set out in 105 Cong. Rec.

(Part 15) 19697, 86th Cong., Ist Sess., Sept. 14, 1959.

6

States would be held for presentation to him upon his

return and that since Congress was informed of this

procedure and took no action to accelerate presenta-

tion or effect personal delivery, it must be taken to

have acquiesced in that arrangement.

ARGUMENT

‘Vhile, as the court below noted (Pet. App. 4), the

problem presented by the case ‘cannot be dismissed

as transient” and “will doubtless endure,” we do not

believe the question is likely to be sufficiently recur-

rent to warrant consideration by this Court at the

present time. Furthermore, whether the particular

private bill involved here was validly enacted is in itself

a question of trivial significance. In any event, the

decision below is clearly correct. Accordingly, we sub-

mit that there is no occasion for review by this Court.

1. While this Court has never passed upon the pre-

cise issue presented here, its prior decisions under the

veto clause of the Constitution (Art. I, Sec. 7, cl. 2)

have laid down the basi¢ principles which control this

ease. “The constitutional provisions have two funda-

mental purposes; (1) that the President shall have

suitable opportunity to consider the bills presented to

him, and (2) that the Congress shall have suitabie

opportunity to consider his objections to bills and on

such consideration to pass them over his veto pro-

vided there are the requisite votes.” Wright v.

United States, 302 U.S. 583, 596 (1938). See, also,

Edwards v. United States, 286 U.S. 482, 486, 493

(1932); The Pocket Veto Case, 279 U.S. 655, 677-

7

678 (1929); La Abra Silver Mining Co. v. United

States, 175 U.S. 423, 454-455 (1899). The first pur-

pose is no less important than the second. “Regard

must be had to the fundamental purpose of the can-

stitutional provision to provide appropriate oppor-

tu7 ity for the President to consider the bills pre-

sented to him. The importance of maintaining that

opportunity unimpaired increases as bills multiply.”

Edwards v. United States, supra, 286 U.S. at 493.

“The power thus conferred upon the President can-

not be narrowed or cut down by Congress, nor the

time within which it is to be exercis: 1 lessened, di-

rectly or indirectly.” The Pocket Veto Case, 279

U.S. at 677-678.

The rule adopted. by the court below would ac-

eommodate the dnal objectives of the veto clause,

whereas that contended for by petitioner would sac-

rifice the first (i.e., the President’s opportunity to con-

sider bills) to the second (the opportunity of Congress

to reconsider and repass them over his veto). Under

the Court of Claims’ rule, either the President or Con-

gress is free to insist that bills be delivered to the

President personally by Congressional courier. In the

alternative, the President may require (as in the in-

stant case) that if a bill is delivered to the White

House, its “‘presentation” be delayea until his return

to the country. In the latter event, if Congress is un-

willing to brook the delay, it may send the bill to the

President by its own messenger, thereby assuring that

the running of the constitutional ten-day period will be

deferred no longer than necersary to make the delivery.

8

iM!

And Both the President and Congress are will-

ing t accept a less demanding method of presenta-

tion, they may agree to, or acquiesce in, another

mutually satisfactory procedure. In that way, the

President’s opportunity for mature deliberation is

preserved without detriment to the Congressional in-

terest in obtaining prompt return of vetoed bills.

Petitioner argues, however, that delivery of the

bill to the White House is tantamount to ‘“‘presenta-

tion”’ and automatically sets in motion the ten-day

period for Presidential action. This conclusion is

plainly not demanded by the language of the Consti- 3

tution, which requires that bills be presented to the

President, not merely that they be deposited at the

White House. Moreover, in any ease in which the

President is absent from the country for a period

of several days, the effect of petitioner’s proposal

would be to curtail the time available to him for

studying the bill, or, indeed, preclude the exercise

of the veto altogether. In the instant case, for ex-

ample, President Eisenhower returned to the United

States seven days after the bill was delivered to the

White House and, under petitioner’s rule, would

have had only three days in which to examine the bill

before it automatically became law.

It is true, as petitioner points out, that under

the long-standing practice prior to 1959, delivery to

the White House was treated as presentation to the

President. Petitioner argues that the power to alter

that practice and to delay presentation during a nec-

essary presidentiai absence resides solely in Congress,

9

this contention, we submit, flies in the face of this

Court’s declaration that the veto power may not be

‘narrowed or cut down by Congress, nor the time

within which it is to be exercised lessened’’ (supra,

p. 7). We do not say, of course, that the President

may unilaterally modify the presentation procedure

without advising Congress and giving it an opportu-

nity to insist upon immediate personal presentation

by messenger. In the instant case, however, it is

clear that Congress was informed of the method se-

lected by President Eisenhower for handling bills

during his absence. A presidential aide discussed

the matter with Congressional leaders and told them

that incoming bills would be stamped with the lan-

guage ‘‘Held for presentation to the President upon

his return to the United States’ (Pet. App. 26).

Moreover, following the delivery of H.R. 2717 and

12 other House bills to the White House, the de-

livery of all subsequent bills during the same presi-

dential absence was reported in the House Journal

and the Congressional Record with the words ‘dd

* * * deliver to the White House for presentation

to the President, for his approval * * *.’’ (Pet.

App. 29.) Congress made no effort to expedite

presentation or to make personal delivery to the

President in Europe. In these circumstances, the

Court of Claims was plainly warranted in its con-

elusion that Congress had acquiesced in the proce-

dure instituted by the President. In any event, the

question whether in this particular instance Congress

acquiesced in the specific method of presentation

adopted by President Eisenhower is essentially a fac-

19

tual question without intrinsic or long-term importance

and does not merit review by this Court.

2. Petitioner’s reliance upon Wright v. United

States, 302 U.S. 583, is misplaced. In Wright, the

Court held that the President could return a bill to

the Senate, even during a three-day recess of that

body, by delivering it to the Secretary of the Senate.

As the court below pointed out, however (Pet. App.

14), the Secretary was “‘the accredited agent of the

legislative body’’ (302 U.S. at 590), authorized to re-

eeive such messages from the President, whereas the

White House clerk in the the present case plainly had

no authorization to accept “presentation” on the

President’s behalf, but was empowered merely to

hold the bill for later presentation upon the Presi-

dent’s return. A further significant distinction is

the fact that, whereas the President has a ten-day

time limit within which to act upon a bill, the Senate

is under no such limitation in deciding whether to re-

pass a measure over the President’s veto. It is true

that the Court noted in Wright that the difficulty in

returning a bili to one of the two Houses while in re-

cess is no greater “than in presenting a bill to the

President by sending it to the White House in his

temporary absence’’ (302 U.S. at 590). That language

had reference to the then prevailing practice of treat-

ing delivery to the White House as equivalent to pres-

entation, but it in no way implied that the President

was without power to modify the practice in order to

ensure that the full ten-day period would be available

for considering bills. There was no comparable con-

sideration which might have served to justify a re-

ll

quirement that the President return the bill to

Congress only when it was actually in session.

CONCLUSION

For the reasons stated, the petition for a writ -

certiorari should be denied.

Respectfully submitted.

ARCHIBALD Cox,

Solicitor General.

Joun W. DovG.as,

Assistant Attorney General.

Morton HOLLANDER,

Rosert J. VOLLEN,

Attorneys.

MarcH 1965.

U.S. GOVERNMENT PRINTING OFFICE: 1965

REPLY BRIEF

FOR THE

PETITIONER

MAR 24 1965

No. 825

JOHN F. DAVIS, CLERK

EBER BROS. WINE & LIQUOR CORPORATION,

Petitioner,

v.

THE UNITED STATES,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Claims

REPLY BRIEF FOR PETITIONER

Justin N. Fetoman

Attorney for Petitioner

777 Third Avenue

New York, New York 10017

Of Counsel:

Herpes PRASHKER

Rosert B. SuHaprro

and

Powuetti Fremin PrasHKER

FretpmMan & GarTNER

of New York City

TABLE OF CONTENTS

PAGE

1. Responpent Dozs Not Derenp THE RaTIONALE

Ra EP Ae Re eye re Sete Nel 2

2. ‘‘IwrormiInc’’ THE CoNGRESS sai... 2

3. Tue ‘‘Acquiescence’’ or Concress ... ...—...... 3

4. Tue Importance oF THE QuESTION. ss... +

Conclusion ROE: SA ese re aCe eee 5

TABLE OF AUTHORITIES

Cases:

Pocket Veto Case, The, 279 U. S. 655 (1929) ........ 3,5

Wright v. United States, 302 U. S. 583 (1938) 3,5

IN THE

Supreme Court of the United States

October Term, 1964

Ener Bros. Wine & Liquor Corporation,

Petitioner,

v.

Tue Unirep States,

Respondent.

On Petition for a Writ of Certiorari to the

United Siates Court of Claims

REPLY BRIEF FOR PETITIONER

The Government’s Brief in Opposition achieves the

virtue of brevity by foregoing any effort to answer the

points raised by the Petition. Indeed, the most significant

aspect of the Government’s Brief is what it omits.

1. Respondent Does Not Defend the Rationale Below.

The principal omission in the Brief in Opposition is that

it neither explains nor defends the rationale of the deci-

sion below. As pointed out in the Petition (pp. 15-17), the

decision below did not interpret Article I, Section 7, clause

2 as giving the President unqualified power to require

2

‘‘nersonal presentation.’’ Such a construction, the Court

noted, would erable the President to stultify the legisla-

tive process (Opinion, p. 8). Accordingly, the President’s

power to insist upon persoual presentation, the Court said,

required the President (a) to remain ‘‘reasonably avail-

able’’ for presentation, ond (b) to inform the Congress

that personal presentation was indeed required.

The Petition contends that, with those qualifications,

the rule as announced below is utterly unworkable (Peti-

tion, pp. 23-27). The Government’s Brief:

(1) makes no mention whatever of the requirement

that the President be ‘‘reasonably availabie’’;

(2) makes no effort to meet Petitioner’s argument

that either of the two qualifications on the ‘‘personal

presentation’? rule make any such rule wholly ur-

workabie; and

(3) does not undertake to defend the unqualified

or absolute ‘‘personal presentation’’ rule rejected by

the court below.

In short, Respondent asks this Court to leave standing

as the sole judicial precedent for the guidance of Presi-

dents and Congresses a decision whose unworkability 1s

not denied, and whose rationale is essentially undefended.

2. ‘‘Informing’’ the Congress. The Petition devoted

several pages to the proposition that the kimd of evidence

upon which the Court below concluded that Congress was

‘‘informed’’ of President Eisenhower's ‘‘new procedure”’

' im and of itself demonstrates the unworkability of the

Court’s rationale (Petition, pp. 25-27). Respondent ignores

3

the point entirely. It states only its conclusion that Con-

gress was informed (Brief in Opposition, p. 9). Respond-

-ent does not attempt to explain how the country is to know

-yhether laws have been passed’ if the determinative ques-

tion of whether Congress was informed is to be resolved

not by reference to any offcial record, but upon oral tes-

timony, to be given in law suits years later, as to private

and confidential conversations between Presiden‘ial aides

and one or more: unidentified ‘‘Congressioral leaders’’.*

3. The ‘‘ Acquiescence’’ of Congress. The Government

relies heavily on the statement of the Court below that

Congress ‘‘acquiesced’’ in the President’s ‘‘new proce-

dure’’. As the Petition pointed out, the statement cannot

be considered an independent ground of decision since it

assumes the very power of the President in dispute (Peti-

tion, pp. 28-29). Respondent does not address itself to this

argument. It asserts only that the conclusion of ‘* acquies-

cence’’ is ‘‘essentially * * * factual’’ and in itself does

not merit review (Brief in Opposition, pp. 9-10}. As the

Petition makes clear (pp. 28-29), the conclusion is. wholly

without basis in fact. Petitioner does aol Lael seek

review as to that conclusion itself but as to the un-

derlying Constitutional power which it assumes (see Peti-

tion, pp. 28-29).

1. See The Pocket Veto Case, 279 U. S. 655, 684-85 (1929) ;

Wright v. United States, 302 U. S. 583, 593 (1938), for this Court's

traditional view of the importance of public certainty as to the status

of bilis.

2. If such testimony is given at all. The fort..er Presidential

aide in this case successfully claimed Presidential privilege when

asked to divulge the substance of his “discussion” with “Congres-

sional leaders.” Finding 8.

4

4. The Importance of the Question. The Government

concedes that ‘‘the preeise issue presented here’’ has never

been passed upon by this Court, and that it ‘‘cannot be dis-

missed as transient’’ and ‘‘will doubtless endure.’’ It

nevertheless argues that it ‘‘do[es] not believe the ques-

tion is likely to be sufficiently recurrent’’ to merit con-

sideration by this Court at this time (Brief in Opposition,

p. 6) (italics supplied).

The issue presented by this case is what ccnstitutes

‘*presentation’’ of a bill to the President within the mean-

ing of Article I, Section 7, clause 2. That issue arises

often enough when the President is absent from the coun-

try, as the twenty-year history of concern by the Depart-

ment of Justice itself over this very matter indicates

(Petition, p. 14 n. 20). Moreover, the Constitutional rule

asserted by the Court of Claims is not limited to cases of

Presidential absence abroad (Petition, pp. 17-18). Under

the rule of the decision below, the question here presented

is potentially present as to every bill passed by Congress

and not delivered personally to the President—i.e., as to

every bill.

The Government suggests that the Court should not

grant the Petition because the Constitutional issue is

presented by a private bill which is itself of ‘‘trivial sig-

nificance’. We raise the question of whether any bill

enacted by both Houses of Congress can Constitutionally

be regarded as of ‘‘trivial significance.’’ The fact is that

all of the cases cited by the Government at pages §-7 of its

Brief, in which this Court has interpreted other aspects of

Article I, Section 7, have aico involved private bills.

5

5

The point is that the significance or ‘nsignificance of

the bill has nothing to do with whether this Court should

grant review: we do not ask this Court to review a deci-

sion interpreting the bill, but a decision interpreting a

Constitutional provision which is applicable to all bills,

public and private, important and not-so-important, includ-

ing appropriations measures, declarations of war, civil

rights measures, bills establishing or limiting the juris-

diction of the federal judiciary, and other measures fov

the general welfare.’

It is, perhaps, fortunate that the question arises in

the context of a private bill. But the Government’s posi-

tion is, in essence, that this Court should decline to resolve

an important Constitutional question which concededly

will recur, in the bizarre hope that next time the problem

will arise as to a measure of great national importance.

We respectfully submit that certiorari should be granted

to prevent precisely that occrrrence.

Conclusion

Respondent’s Brief in Opposition fails either to defend

the rationale below, to offer any other rationale or to meet

the grave questions posed by the Petition. We respectfully

submit that Respondent has done none of these things be-

cause it can do none: because the rationale below is inde-

fensible, because no other rationale can support the deci-

3. Thus, although The Pocket Veto Case, 279 U. S. 655 (1929),

also involved a private bill, certiorari was there granted “in view of

the public importance of the question p:esented.” 279 U. S. at 673

(italics supplied). See a'so Wright v. United States, 302 U. S. 583,

586 (1938).

6

sion below and because the questions posed by the Petition

are unanswerable in the context of that decision. We re-

spectfully urge that the Petition for a writ of certiorari be

granted.

Respectfully submitted,

Justin N. FetpMan

Attorney for Petitioner

777 Third Avenue

New York, New York 10017

Of Counsel:

Henpert PRasHKER

Rosert B. SHaprro

and

Pouett1 Fremin PrasHeeR

Fetpman & Gartnzaz

of New York City

March 23, 1965.