Brief for the United States — Edwards v. United States

FILE COPY

No. 790

Inthe Supreme Court of the United States

OCTOBER TERM, 1931

THoMaAs C. EDWARDS

v.

THE UNITED STATES

ON CERTIFICATE FROM THE COURT OF ULAIMS

BRIEF FOR THE UNITE. STATES

NN aa 4 ace Wt nd & ob inn sateen te ices igre GeO 1

ee ee ee eee ee eee ee eee 1

NE ike coast neh sa ena send i nwtnn aun Wae ween 1

Constitutional provision involvéd..................c.csceccce 2

iid er iia rw ond os ee Ns owes We pe ee 3

ey St I sa, a os) Sine ack abe oa ee tear ee 4

Argument:

I. Constitutional practice and historical precedents are

not so definite as to be controlling. ..............-- 6

II. The constitutional provision, fairly construed, permits

the President to approve bills after the final adjourn-

iment of Congress but within ten days, Sundays

excepted, after they have been presented to him- - _- 14

ign we 5 aan ee ease ee anne eres eek aw eeea < dee 24

CITATIONS

Cases:

Arvada ¥. Meiieiar, OS. C. 336... ...........-..2--2e a 21

ee ©. Bde es sec cnnnennenacanacenss 21

minal ©. Cage, TD BONO. Baan nnn cence cokendc 21

ware ©. Pam, SO. WO. on... asain ccc eteeces 17-18 21

erapdee v. Gitbe, GO Biles. OOF... . .. 2.2 nn ee cence ne 21

Hodges v. United States, 18 C. Cls. 700___.._..___.-_---- 9, 10

Penman ©. Teeth, 1D WEG. GAO... ec one no ce pw cccs 21

Johnson City v. Tenn. Eastern Electric Co., 133 Tenn. 632_- 21

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

MIE dinip ual acca oo akased oe ae aaa dace 4, 7,9, .2, 16, 17, 19-21

Lankford v. County Commissioners, 73 Md. 105_..-.------ 21

Opinion of the Justices, 45 N. H. 607..............-..-.. 21

Opinion of the Justices, 3 Mass. 567._._........._..---_-- Zi

Opinion of the Justices, 23 Fla. 207... ....-......--.-... 21

Orange Car & Steel Co. v. United States (C. Cls.), decided

esi iy SOR Meee ee gS Em TENE ante ine 1

Penn ¥. Gane, DE TE. VBR occ ceecncnccuvecsccan 21

Pes Fete Cam, 370 0. B. GOB. <n onc cence wacncndand 16

Seven Hickory v. Ellery, 103 U. S. 423...-.-..--_--- --- 6, 22-24

Solomon v. Commissioners, 41 Ga. 157__...-------------- 21

State v. County of Coahoma, 64 Miss. 358__........------ 23

Rtels v.. Pogen, G3 ba.‘hon. $466.........-. 5-25 5cc cnn nnes 21

Trustees of School District No. 1 v. County Commissioners of

Creep Commin, § Bae. BI occ cs cnwccecncnndcecas 21

United States v. Weil, 29 C. Cls. 523_.___...._.___--- 9, 12, 17, 18

Wheeler Lumber Co. v. United States, 281 U. S. 572____-_- 1

111499—22-—1 (1)

ANEMIA INE AR CORNET TOMES ES PNY pe MIR A MEM BR HEN

WY PE 2 VO Te ee

ee Oe

EEE LM OPE LEE. GEM ER IED ETIC AEE ITY Haiey EN 7

oe

de NRE RUBIES ela ate eA i aa LSS a He

;

$

;

i

>

IL

Constitution: Page

RR 2

Statutes:

Act of March 12, 1863, c. 120, 12 Stat. 820._-.._._._-__- 8-9

Act of July 2, 1864, c. 225, 13 Stat. 375.....---.---...-.- 9

Judicial Code, Sec. 156 (U. S. C., Title 28, Sec. 262)______ 3

Act of March 5, 1931, c. 595, 46 Stat. 2163__.....______- 3

Miscellaneous:

Barnett, The Executive Control of the Legislature (1907),

a ta rd in eines aenedionliciean semen 21

Se ee, We ey SE, SMU er enennnncmnss 3

ae eh bahia apes sgh sesh ik bea taal mien ni 3

House Report No. 108, 38th Cong., Ist Sess...-.-------- 4,8

haan inc Sasa elspa dps ecko ts pile 21

Memoirs of John Quincy Adams, Vol. 6, pp. 379-381__-__- 8

Nation, March 10, 1867, p. 197... ...................... 12

a as as al wee to eaten Pr ae 12

i tds as apt crycgi ce dnct he 13, 14

I a ae soe arises stint idan minded tds do sn 13

Renick, The Power of the President to Sign Bills after the

Adjournment of Congress (1898), 32 American Law Review,

RCIA a Mahala han iiaelesinis aniceesG diania-anelint ie thine ececsive te ekiods oaks nin 14

Rogers, The Power of the President to Sign Bills after Con-

gress has Adjourned (1920), 30 Yale Law Journal, 1_ 13, 14,17

seeaeerueraers

a

Inthe Supreme Court of the Wnited States

OcToBER TERM, 193]

THomMas C, Epwarps :

Vv.

THE UNITED STATES

ON CERTIFICATE FROM THE COURT OF CLAIMS

BRIEF FOR THE UNITED STATES

OPINION BELOW

The Court of Claims has rendered no opinion in

this case.

JURISDICTION

The certificate of the Court of Claims was filed |

in this Court on March 11, 1932. On the same day

the Court of Claims withdrew its decision in Oran ge

Car & Steel Co. v. United States, referred to on p. 2

of the plaintiff’s brief. The question certified also

arose in that case which is now pending and unde- 7

cided in the Court of Claims. The jurisdiction

of this Court rests on Section 3 (a) of the Act of

February 13, 1925. See Wheeler Lumber Co. v.

United States, 281 U.S. 572.

¥

(

QUESTION CERTIFIED

The question certified is as follows:

Did the Act of March 5, 1931 (46 Stat. 2163), be-

come a law when it was approved by the President

(1)

2

Pe eR re et

on March 5, 1931, after the final adjournment on

March 4, 1931, of the Congress which had passed it ?

More broadly stated, the question is whether the

President may approve a bill after the final ad-

journment of the Congress which has passed it but

: within ten days of the time it is presented to him.

CONSTITUTIONAT. PROVISION INVOLVED

The pertinent provisions of Section 7, Article I,

of the Constitution are 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 Jour-

nal, 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.

* * * -Tf 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.

— oe ea eo Se KR

3

STATEMENT

Thomas C. Edwards brought suit against the

United States in the Court of Claims. The United

States contended that the suit was on a contract

and that the cause of action had been barred by the

statute of limitations (See. 156 of the Judicial

Code; U. S. C., Title 28, Sec. 262), unless juris-

diction was conferred on the Court of Claims by

the Act of March 5, 1931, ¢. 595, 46 Stat. 2163,

which was passed by both Houses of Congress

during the Third Session of the 71st Congress, pre-

sented to the President March 3 (Cong. Ree., vol.

74, pp. 7250-7251; H. R. 8953), and signed by the

President on March 5, 1931, after the final adjourn-

ment of the Congress. The certificate states that

the President signed it within ten days, Sundays

excepted, after it was presented to him. (R. 1.)

As the President acted upon an opinion of the

Attorney General (36 Op. A. G. 403), holding that

he had power to approve the bill after adjourn-

ment of Congress but within ten days after it was

presented tu him, the officials of the Department of

Justice are committed to the view that the bill be-

came a law and are therefore unable to support

the claim that the suit was barred by the statute

of limitations. But because of the great impor-

tance of the question and the need for having it

settled by this Court we felt obliged to raise it in

the Court of Claims.

ESE ELE LAE AEE ONL TF AES IY A ATM MECN! ONY DETREI PRS SOY DOOR Ie Mogae we hao

saat She MG WOR eka ESO ig RIAD

Seah Ra allied ate: hae

Pin agree

|

j

a

3

4

The Judiciary Committee of the House of Rep-

resentatives concluded in 1864 (House Report No.

108, 38th Congress, First Session, June 11, 1864)

that the President had no power to approve a bill

after the adjournment of the Congress which

passed it. We reported the pendency of this cause

to the present Chairman of the Judiciary Commit-

tee of the House with the suggestion that some one

in the House might be designated to appear amicus

curie and present arguments in support of the re-

port which the former Judiciary Committee made.

SUMMARY OF ARGUMENT

The question whether the President may ap-

prove a bill while Congress is not in session has

arisen in three different situations: First, where

the approval was given while Congress was taking

a short recess; second, where approval was given

after Congress had adjourned sine die at the end

of a session; and third, where a bill was approved

after Congress had finally adjourned at the expira-

tion of the time for which Representatives were

elected.

That the President may sign a bill during a short

recess of the Congress was settled in La Abra Sil-

ver Mining Co. v. United States, 175 U. 8. 423, but

the question arising at the end of a session was ex-

pressly reserved, and no mention was made of the

situation arising when a Congress ends.

There has been no long-continued practical con-

struction of the Constitution which can be accepted

4)

as controlling. President Lincoln signed one bill

after the final adjournment of the Congress which

passed it, but subsequent legislation prevented a

definite adjudication of the question. President

Wilson approved a group of bills after the adjourn-

ment of a session in reliance on an opinion by

Attorney General Palmer. (32 Op. A. G. 225.)

President Hoover in March, 1931, in reliance on

an opinion of the Attorney General (36 Op. A. G.

403) approved eighteen bills including the one here

involved, after the expiration of the 71st Congress.

The question has been frequently debated, but the

general practice of Presidents to sign bills during

sessions of Congress has been induced by a purpose

to avoid rather than to decide the question. The

state of the precedents is such that the question

is all open one to be resolved by a consideration of

the constitutional provision.

Congress has no function to perform in respect cf

bills which have been approved, so there is no good

reason Why the President should not approve bills

after adjournment. Public interest requires that

he be given the full ten days contemplated by the

Constitution to consider measures passed by Con-

gress. In directing that every bill shall be pre-

sented to the President the Constitution provides

‘af he shall approve, he shall sign it.”’ It does not

expressly state when he shall sign it nor that he

shall sign it while Congress is in session. The argu-

ment that if he may approve a bill after the ad-

ee

De

6

journment of Congress he has an indefinite time to

act, finds no support in the Constitution. That he

must sign within ten days is necessarily implied,

for, if he does not and “ongress shall have ad-

journed it is provided that the bill shall fail to be-

come a law.

The argument that the President is a part of the

legislative branch when acting on legislation and

that his functions terminate when Congress finally

adjourns is merely a political theory without any

support in the words of tle Constitution. Because

of the large number of bills presented to Presidents

at the end of sessions of Congress in modern times,

public interest will be served by holding that he may

approve bills after adjournment.

The reasoning of the Court in Seven Hickory vy,

Ellery, 103 U.S. 423, supports these conclusions.

ARGUMENT

I

CONSTITUTIONAL PRACTICE AND HISTORICAL PRECEDENTS

ARE NOT SO DEFINITE AS TO BE CONTROLLING

The question whether the President may ap-

prove a bill while Congress is not in session has

arisen in three situations: First, where approval

was given while Congress was in recess; second,

where approval was given after Congress had ad-

journed sine die at the end of a session; and third,

where approval was given after Congress had

finally adjourned at the expiration of the time for

7

which members of the House of Representatives

were elected.

In La Abra Silver Mining Co. v. United States,

175 U. 8. 423, it appeared that on December 20,

1892, a bill passed by Congress had been presented

to the President and that on December 22, by joint

action, the two Houses had taken a recess witil

January 4, 1893. On December 28, 1892, while the

Congress was not actually sitting, the President

approved the Act in question. The Court said

(p. 459) :

Whether the President can signa bill after

the final adjournment of Congress for the

session, IS a question not arising in this Case,

and has not been considered or decided by

us. We adjudge—and touching this branch

of the case adjudge nothing more—that the

act of 1892 having been presented to the

President while Congress was sitting and

having been signed by him when Congress

vas In recess for a specified time, but within

ten days, Sundays excepted, after it was

so presented to him, was effectively ap-

proved, and immediately became a law, un-

less its provisions are repugnant to the

Constitution.

The question now arising was not mentioned.

The proceedings in the Constitutional Conven-

tion throw no light en the problem.

With the exceptions hereafter noted, it seems

to have been traditional with the Presidents to sign

bills before adjournment. In 1824 the point was

111499—32—_-»

ae oi

TORN

4 BP TO Oe hems Te

E Se ae ae

8

raised in the Cabinet of President Menroe. Secre-

tary of State Adams thought the President could

sign a bill after adjournment. Attorney General

Wirt at first agreed but (apparently) changed his

mind. Mr. Calhoun thought the bill could not be

signed but only because ‘‘uniform practice had es-

tablished a practical construction.’’ The President

decided not to sign. (See Memoirs of John Quincy

Adams, Vol. 6, pp. 379-381.) Nothing further de-

veloped until Congress on March 3, 1863, passed a

statute known as the Abandoned and Captured

Property Act (Act of March 12, 1863, e. 120, 12

Stat. 820). Congress adjourned sine die on March

4, 1863, it being the expiration of the (“.1gress and

not merely the end of a session. President Lincoln

approved the bill March 12, 1863. By resolution

of May 16, 1864, the House of Representatives or-

dered its Judiciary Committee to report by what

warrant the Act was approved and whether it was

in force. The Committee unanimously concluded

that the Act was not in force. House Report No.

108, 38th Congress, First Session.

The Committee said:

The ten days’ limitation contained in the

section above quoted refers to the time dur-

ing which Congress remains in session,

and lias no application after adjournment.

Hence if the Executive can hold a bill ten

days after adjournment, and then approve it,

he can as well hold it ten months before ap-

proval. This would render the lews of the

9

country too uncertain, and could net have

been intended by tke framers of the Consti-

tution.

The spirit of the Constitution evidently

requires the performance of every act neces-

sary to the enactment and approval of laws

to be perfect before the adjournment of

Congress.

The House took no direct action on the report,

but it passed the Act of July 2, 1864, ¢. 225, 13 Stat.

375, Which referred to and amended “the Act

approved March 12, 1863.”’

In Hodyes v. United States, 18 C. Cs. 700, arising

under the Abandoned and Captured Property Act,

the court discussed the question of its validity,

stated that the legislative, executive, and judicial

departments tacitly and without question had ac-

quiesced in the validity of the statute, but men-

tioned the fact that the uniform practice had been

from the first organization of the Government for

the President not to approve bills after the adjourn-

ment of Congress with the single exception of the

Abandoned and Captured Property Act. The

Court of Claims then expressed no opinion on the

question, stating that it was no longer of any practi-

cal importance, since all litigation under the provi-

sions of that Act had been completed. In United

States v. Weil, 29 C, Cls. 523, the court had under

consideration a bill signed by the President during

a short recess of the Congress, presenting the same

question decided by this Court in La Abra Silver

10

Mining Co. v. United States, 175 U. 8S. 423, supra.

The full history of the Abandoned and Captured

Property Act of March 12, 1863, is recited in the

opinion of the Court of Claims. It is evident that

there was ground for the conclusion that subsequent

legislation by Congress amounted to an implied re-

enactment of the Abandoned and Captured Prop-

erty Act, thus eliminating any question as to its

validity. The opinion of the Court of Claims dis-

cussed the question and concluded that the Consti-

tution does not require that a bill be approved by

the President while Congress is in session. Chief

Justice Richardson, concurring in the view that the

approval of the Act during a recess of the Congress

was effective, said (pp. 848-849) :

IT am not prepared to go further and to

express an opinion upon the question not

involved in the case whether or not the Presi-

dent has the right to approve a bill after the

Congress in which it was passed has expired.

IT am impressed with the view which has

prevailed and which, with the single excep-

tion of the captured and abandoned prop-

erty act of March 12, 1863, has been adopted

and followed in practice ever since the

foundation of the Government, that the

President for the time being is part of the

legislative power of each separate Congress,

like the Senate, which is a continuing body,

and that when a Congress expires by limita-

tion his authority to approve bills of that

Congress is gone.

Sica eed Reseed, ee tee

—__

11

If it were otherwise, an incoming Presi-

dent might approve bills of Congress belong-

ing to the official term of his predecessor,

with: the merits of which he is not expected

to be familiar, and for the consideration of

which he would not have the ten days secured

by the Constitution unless it should be held

that bills may be presented to the President

for approval after the Congress expires,

which I apprehend would not be seriously

urged by anybody.

In 1867 President Johnson refused to sign a bill

during a recess of Congress between March 30 and

July 3, 1867, but filed it in the State Department

with the following endorsement :

SRR EM int et Ser RE Sy EERE RepERE Eat

pi oot bee |

It is not believed that the approval of any

bill after the adjournment of Congress,

whether presented before or after such ad-

journnent, is authorized by the Constitu-

tion of the United States, that instrument

expressly declaring that no bill shall become

law the return of which may have been pre-

vented by the adjournment of Congress. To

concede that, under the Constitution, the

President, after the adjournment of Con-

gress, may, without limitation in respect to

time, exercise the power of approval and

thus determine at his discretion whether or

not bills shall become laws, might subject

the legislative and executive departments of

the Government to influences most pernici-

ous to correct legislation and sound public

morals, and, with a single exception, occur-

ring during the prevalence of civil war,

would be contrary to the established prae-

SMT NR POPES

ES LET

Ae

a4,

Se Se CC eee

ieeres Dee RES

4

»

2

4

y

3

2

os

3

3

7

12

tice of the Government from its inaugura-

tion to the present time. The bill will there-

fore be filed in the office of the Secretary of

State without my approval.

In March, 1887, Congress passed a River and

Harbor bill shortly before adjournment, and Mr.

Willis, Chairman of the House Committee, pre-

sented to President Cleveland a brief supporting

the power to approve a bill after adjournment.

(See Nation, March 10, 1887, p. 297.) It has been

suggested that Attorney Generali Garland advised

the President he did not have the power for the

reason that he was a part of Congress in this re-

spect and could not act after the Congress had

ceased to exist. There is no record in the Depart-

ment of Justice of any opinion by Attorney Gen-

eral Garland on the subject. The President did

not sign the bill.

There next arose, in December, 1892, the question

as to the power of a President to approve bills dur-

ing the recess of Congress from December 22, 1892,

to January 4, 1893, and in reliance on an opinion

by Attorney General Miller (20 Op. A. G. 503)

President Harrison signed a group of bills during

the recess, an action which was subsequently ap-

proved by the Court of Claims in United States v.

Weil, supra, and by this Court in La Abra Silver

Mining Co. v. United States, supra.

The question does not seem to have arisen again

until 1920, when Attorney General Palmer advised

President Wilson that he had power to approve

_

13

bills after adjournment sime die of the session of

Congress at which the bills were passed but within

ten days (Sundays excepted) after they had been

presented to him. (32 Op. A. G. 225.) In reliance

on that opinion, President Wilson signed eight bills

after the adjournment of Congress, the most im-

portant of which was the Act creating the Federal

Power Commission. (Rogers, The Power of the

President to Sign Bills after Congress has Ad-

journed, 30 Yale Law Journal 1, at p. 2, note 3.)

The validity of these measures has never been ques-

tioned on the ground that they were not properly

approved. The opinion of the Attorney General,

dated June 19, 1920, is a very clear and able docu-

ment, and while dealing with the adjournment of a

session and not the expiration of a Congress, its

reasoning is applicable here. Except for the group

of bills signed by President Wilson after the ad-

journment sine die of a session of the 66th Con-

gress, the Presidents appear to have continued the

practice of signing bills before adjournment until

President Hoover in March, 1931, signed a number

of bills after the expiration of the 71st Congress

but within ten days after they were presented to

him, this action being taken in reliance on an opin-

ion of the Attorney General (36 Op. A. G. 403)

which adopted the reasoning of the opinion of At-

torney General Palmer but went further and held

that there was no distinction between the adjourn-

ment of a session and the final adjournment or

expiration of a Congress.

vt ge kc iet en a ae

BI ne RAL

oe eee

CE tO

es ee ee, ee be

Sct ati NS ie bi ee S24 Se

14

Further discussion of the precedents will be

found in the able article in the Yale Law Journal

by Professor Lindsay Rogers, above referred to,

in the opinion of the Attorney General of June 19,

1920 (32 Op. A. G. 225), and in 32 American Law

Review 208. There have been expressions of opin-

ions in Congress and hy Presidents to the effeet

that a measure could only be approved while Con-

gress Was in session, and, with the exceptions noted,

it has been the traditional practice for Presidents

to approve measures before adjournment.

It is obvious that there has been no controlling

practical exposition of the Constitution. The

practice of approving bills before adjournment is

a construction of a negative character and not an

affirmative assertion that approval must be given,

if at all, before adjournment, and the practice

seems to have been followed out of abundant cau-

tion to avoid rather than decide the question. It

is only in recent years that the volume of legisla-

tion presented to the President for consideration

at the end of a session has been so large as to make

the question a live one.

II

THE CONSTITUTIONAL PROVISION, FAIRLY CONSTRUED,

PERMITS THE PRESIDENT TO APPROVE BILLS AFTER

THE FINAL ADJOURNMENT OF CONGRESS BUT WITHIN

TEN DAYS, SUNDAYS EXCEPTED, AFTER THEY HAVE

BEEN PRESENTED TO HIM

The pertinent provisions of Section 7 of Article I

of the Constitution (supra p. 2) deal with three

contingencies: First, approval of a bill by signing

—

>> \

_—

15

it; second, disapproval of a bill by return of it with

objections; and third, failure either to approve

by signing it, or disapprove by returning it within

ten days after it is presented to the President, in

which case (a) if Congress has not adjourned the

bill becomes a law, (b) if Congress has adjourned

the bill does not become a law.

i. is provided that every bill which shall be

passed, before it becomes a law, shall be presented

to the President and ‘‘if he approve he shall sign

it.’ So far, there is no time limit on its approval.

There is no express provision that the President

must sign while Congress is in session. The other

provisions of this section deal with the matter of

return of measures which the President does not

approve. The two principal arguments against the

power of the President to approve measures after

final adjournment of the Congress which passed

them are those advanced by the Judiciary Commit-

tee of the House in 1863, that if the President can

approve a bill after adjournment there is no limit

on the time within which he may act which would

render the laws of the country too uncertain and

that the President is a constituent part of the legis-

lative branch when approving bills and that when

the Congress expires his functions end.

The first objection is not supported by the pro-

Visions of Section 7 of Article I. If the President

desires to approve a bill after adjournment, he

must approve it within ten days after it is pre-

= sie oi tel MP AP IE

a ee

:

|

y

y

4

4

|

--— ae

16

sented to him in| order to prevent the operation of

that clause which says “if any Bill shall not be re-

turned by the President within ten Days (Sundays

excepted) after it shall have been presented to him,

the Same shall he a Law, in like Manner as if he

had signed it, unless the Congress by their <Ad-

journment prevént its Return, in which Case it

shall not be a Law.” Under this provision, if the

ten days are allowed to expire without approval

and meanwhile the Congress has adjourned, the

bill shall not be a law, it dies, and that is the end

of the matter; and where these conditions occur

it may not fairly|be said that the President by ac-

tion after the ten|days can resuscitate the measure

by giving it his|approval. The purpose of the

Constitution is to allow the President ten days

after a bill is presented to him to consider whether

he shall approve pr disapprove (The Pocket Veto

Case, 279 U.S. 655, 677), and that limitation in

time remains in effect although Congress may have

adjourned. In La Abra Silver M ining Co. V.

United States, su pra, at page 454, the Court said:

The Constitution is silent as to the time of

his signing, except that his approval of a

bill duly presented to him—if the bill is to

become a law merely by virtue of such ap-

proval—must be manifested by his signature

within ten days, Sundays excepted, after

the bill has been presented to him.

The Constitution declares that in the event of

an adjournment a bill shall not become a law if the

——,

17

President does not sign it. It does not declare that

4 bill shall not become a law although he does sign

it. The contingency provided for is the nonap-

proval of an act after the adjournment of Con-

gress with a consequent inability to return it to the

House in which it originated. It declares what

shall happen in case of nonapproval. It does not

declare that the same thing shall happen in case of

approval. United States v. Weil, 29 C. Cls. 528,

O38.

The other argument against the power to approve

bills after adjournment is equally unsound. The

contention that the President is a part of the Con-

gress and that he can not function when Congress

is not in session is net supported by any words of

the Constitution. It is an assertion that the Presi-

dent is a part of each separate Congress and if it is

in existence, though not in session, he may approve

bills. It is nothing but a political theory and was

rejected in part by this Court in La Abra Silver

Mining Co. v. United States, supra, which sustained

the presidential approval of a measure during a

recess. This theory has been discussed in United

States v. Weil, supra, page 538, in the Yale Law

Journal, Volume 30, p. 1, and in many of the State

decisions hereafter referred to. In Fowler vy.

Peirce, 2 Cal. 165, the court stated it as follows:

This power is a unit, though distributed ;

and the parts can only act in unison. When-

ever a part ceases to act, the whole becomes

inoperative. The executive act owes its

ere IND Pr mw Pern. SE ae

ee ee

18

validity to the existence of the legislative

body. Upon the adjournment of that body,

the power ceases, and all acts of a legislative

nature are void.

The trouble with this theory is that there is noth-

ing in the Constitution to support it. The House

Judiciary Committee in 1864 relied on the ‘‘spirit”’

of the Constitution to sustain it.

Mention has been made of the situation arising

when the Congress expires at the time the Presi-

dent’s term ends. With reference to this, when ex-

pressing the opinion that the President can not ap-

prove a bill after the Congress which passed it has

expired, Chief Justice Richardson, of the Court of

Claims, said (29 C, Cls, 549):

If it were otherwise, an incoming Presi-

dent might approve bills of a Congress be-

longing to the official term of his predecessor,

with the merits of which he is not expected

to be familiar, and for the consideration of

which he would not have the ten days secured

by the Constitution unless it should be held

that bills may be presented to the President

for approval after the Congress expires,

which I apprehend would not be seriously

urged by anybody.

Such a situation can not arise. The necessary

implication from the words of the Constitution is

that a bill must be ‘‘presentea’ to the President

by the Congress which passed it. After that Con-

gress has expired there is no authority left to pre-

sent it. The Congress which has expired is not in

lll

19

existence to present its bills to the incoming Presi-

det, and the latter can not act on bills not ‘‘pre-

sented’’ to him.

No practical reason has ever been given to sup-

port the contention that the President should not

be permiited to approve measures after Congress

adjourns. Congress has no function to perform in

respect of measures approved by the President.

While it has been the traditional practice for the

President to advise the Congress that he has ap-

proved bills, there is no action to be taken by Con-

gress after such approval.

Public interest would suffer by the requirement

_ tbat the President must act before adjournment.

~ During the period from February 28, 1931, to noon

of March 4, 1931, 269 bills were presented to the

President by Congress for his consideration, 184

of which, many of great importance, were presented

to him during the last twenty-four hours of the

session. It is impossible for a President to give

adequate consideration to such a large number of

measures in so short a time before adjournment.

There is no real distinction to be drawn between

the case dealt with in La Abra Silver Mining Co. v.

United States, supra, involving a short recess, the

case considered in Attorney General Palmer’s opin-

ion in 1920, where the session had ended but the

Congress bad not expired, and the case at bar,

where the measure was approved after the final

adjournment of the Congress. In the La Abra case

this Court said (pp. 454-455) :

20

We perceive nothing in these constitutional

provisions making the approval of a bill by

the President a nullity if such approval oc-

curs while the two Houses of Congress are

in recess for a named time. After a bill

has been presented to the President, no fur-

ther action is required by Congress in respect

of that bill unless it be disapproved by him

and within the time prescribed by the Consti-

tution be returned for reconsideration. It

has properly been the practice of the Presi-

dent to inform Congress by message of his

approval of bills, so that the fact may be re-

corded. But the essential thing to be done

in order that a bill may become a law by the

approval of the President is that it be signed

within the prescribed time after being pre-

sented to him. That being done, and as soon

as done, whether Congress is informed or

not by message from the President of the

fact of his approval of it, the bill becomes a

law, and is delivered to the Secretary of

State as required by law.

Much of the argument of counsel seems

to rest upon the provision in relation to the

final adjournment of Congress for the ses-

sion, whereby the President is prevented

from returning, within the period prescribed

by the Constitution, a bill that he disap-

proves and is unwilling to sign. But the

Constitution places the approval and di<ap-

proval of bills, as to their becoming iaws,

upon a different basis. If the President

does not approve a bill, he is required within

a named time to send it back for considera-

tion. But if by its action, after the presen-

ae

yy

a

¥

g

P>

~,

ix

s

;

*

oe

|

|

ee

|

!

|

21

tation of a bill to the President during the

time given him by the Constitution for an

examination of its provisions and for ap-

proving it by his signature, Congress puts it

out of his power te return it, not approved,

within that time to the House in which it

originated, then the bill falls, and does not

become a law.

The State decisions are conflicting and arise

under varying provisions of State constitutions.

The New York Court of Appeals in People v.

Bowen, 21 N. Y. 517, held that in the provision of

the constitution of the State of New York (from

which the provision of the Federal Constitution

Was taken) there was nothing forbidding the ap-

preval of a bill by the Governor after the session

of the legislature was terminated by adjournment.

Discussion of other State cases will be found in

Barnett, The Executive Control of the Legislature,

41 Am. L. Rev. 215, and in a note in 37 L. R. A. 391.

See also Fowler v. Peirce, 2 Cal. 165; Opinion of

the Justices, 23 Fla. 297; Boyd v. Deal, 24 Fla. 293;

Solomon v. Commissioners, 41 Ga. 157; State v. Fa-

gan, 22 La. Ann. 545; Lankford v. County Commis-

sioners, 73 Md. 105; Johnson v. Luers, 129 Md. 523;

Opinion of the Justiecs, 3 Mass. 567: Detroit v.

Chapin, 108 Mich. 136; State v. County of Coa-

homa, 64 Miss. 358, overruling Hardee v. Gibbs, 50

Miss. 802; Trustees of School District No. 1 v.

County Commissioners of Ormsby County, 1 Nev.

334; Opinion of the Justices, 45 N. H. 607; Arnold

v. McKellar, 9 8. C. 335; Johnson City v. Tennes-

see Eastern Electric Co., 133 Tenn. 632.

99

=e

In Seven Hickory v. Ellery, 103 U.S. 423, a case

arising in the Circuit Court of the United States for

the Southern District of Illinois, this Court econ-

strued a provision of the constitution of Llinois,

which in all material respects was substantially the

saie as the provision in the Federal Constitution

excenting that the last clause read as follows:

If any bili shall not be retuned by the gov-

ernor within ten days (Sunday 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 General Assembly

shall, by their adjournment, prevent its re-

turn; in which ease, the said bill shall be re-

returned on the first day of the meeting of

the General Assembly after the expiration

of said ten days, or be alaw. (Italics ours.)

This Court said (pp. 424425) :

The single question we have now to con-

sider is whether a bill passed by both Houses,

and presented to the governor before the

legislature adjourns, becomes a law when

signed by the governor after the session of

the legislature has been terminated by an ad-

journment, but within ten days from its pre-

sentation t» him. We have no hesitation in

saying it does. There is certainly no ex-

press provision of the Constitution to the

contrary. All that instrument requires is

that, before any bill, which has passed the two

Houses, can become a law, it shall be pre-

sented to the governor. If he approves it,

he may sign it. If he does sign it within

The

23

the time, the bill becomes a law. That is

not said in so many words, but is manifestly

implied. After a bill has been signed, the

legislature has nothing more to do with it.

Undoubtedly, if the legislature should be in

session when the signing is done, it would

not be inappropriate for the governor to

communicate his approval to one or both

the Houses; but there is nothing in the Con-

stitution which requires him to do so. The

filing of the bill by the governor in the office

of the secretary of siate with his signature

of approval on it is just as effectual in giving

it validity as a law, as its formal return to

the legislature would be. The bill becomes

a law when signed. Everything done after

that is with a view to preserving the evidence

of its passage and approval.

Court further said (pp. 425-426) :

So that, under the Constitution of Llinois,

if a bill is passed by both Houses of the leg-

islature it becomes a law—1, when approved

and signed by the governor within ten days

after its presentation to him; 2, when the

legislature being in session, the governor

fails to sign the bill or return it with his ob-

jections to the House in which it originated

within the ten days; 3, when, after being re-

turned within the ten days, it is passed by

the requisite majorities over his objections;

4, when, if the session of the legislature ter-

minates by an adjournment before the ex-

piration of the ten days, he fails to return

the bill with his objections the first day of the

eR og

PEE AIP LAE PES ETO

FROME AT S

RENE

TEKS

Ne i Tk

——oOo”-Y—”--rS”s—=C St ——S

EE I PRE I

fey SER a RI EI ELE ND EP bee Bs

24

next session; and, 5, when, having returned

it with objections on the first day of the next

session, it is again passed by the requisite

majorities in both Houses. And it becomes

a law at the time when the event happens

which is to give it validity. In the present

case the bill was approved and signed within

the ten days, and, therefore, as we think, it

became a law from the date of the approval,

notwithstanding the legislature was not in

session at the tinie. This is in accordance

with the ruling of the Court of Appeals of

New York in The People v. Bowen (21 N. Y.

517) ; of the Supreme Court of Louisiana in

State, ex rel. Belden, Attorney-General, v.

Fagan (22 La. Ann. 545), and of the Su-

preme Court of Georgia in Solomon v. Com-

missioners of Cartersville (41 Ga. 157), upon

provisions somewhat similar in the constitu-

tions of those States.

Such differences as ave found between the provi-

sions of the Federal Constitution and those of the

Illinois constitution have no direct bearing here.

The adjournment of the [llinois legislature re-

ferred to in the Seven Hickory case was not the

expiration of the legislature but the end of the

regular session. Special sessions of the same leg-

islature were held later in the same year.

CONCLUSION

The conclusion should be that there is nothing in

the Constitution to sustain the view that approval

must be given prior to final adjournment of the

25 |

Congress, and the question certified should be

answered in the affirmative.

Respectfully submitted.

WILuiAM D. MITCHELL,

Attorney General.

THomas D. THACHER,

Solicitor General.

_ CO -tARLES B. Rvaa,

Asstsiant Attorney General.

EuRWIN N. GRISWOLD,

Attorney. |

ApRIL, 1932.

GU. 6. GOVERNMENT PRINTING OFFICE: 1932