Opposition Brief — Wright v. United States

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Whether a bill Naini a law without the signa-

ture of the President where, on the tenth day after

- the presentation of such bill to the President, he is

prevented from returning it, together with his ob-

jections, to the House of Congress in which the bill

originated, because that House has adjourned.

CONSTITUTIONAL PROVISIONS INVOLVED .

The applicable portions of the Constitution are.

set forth in the Appendix, infra; pp. 7-8.

STATEMENT

_ The facts as disclosed by the record (R. 1-4)

"may be summarized as follows:

’ On Friday, April 24, 1936, Senate Bill 7 13, which

originated in the Senate (R. 3), and which author- °

ized the Court of Claims to reopen and rehear a

~ claim of the petitioner which had theretofore been

_ decided against him (R. 3, 4), was presented to the

President of the United States (R. 1). On Mon-

day, May 4, 1936, the Senate: took a recess until

noon Thursday, May 7, 1936, the House of Repre-

- sentatives remaining in session (R. 1). .

“While the Senate was in recess, the President

returned the bill, S. 713, together with a message

. dated May 5, 1936, addressed to the Senate, setting

forth his objections to the bill. The bill and the

message were delivered to the Secretary of the Sen- -

- ate (R. 2). When the Senate reconvened on May

7, 1936, the Secretary thereof, by letter, advised it

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of the return of the bill and of the delivery of the —

message of the: President (R. 2). Thereupon the

bill, together with the President’s message, was re-

ferred to the Committee on Claims of the Senate

(R. 3). No' further action was taken thereafter

(R. 3).

On September 14, 1936, the petitioner filed a pe-

tition in the Court of Claims to reinstate, reopen,

rehear, and adjudicate his claim which had thereto-

fore been dismissed. Wright v. United States, .60

C. Cls.519. The United States opposed this peti-

tion on the ground that Senaté Bill 713 had never

~ become a law (R. 5, 6). The court below overruled

the — on February 8, 1937 (R. ~

ARGUMENT

Article I, Section 7, Clause 2 of the Constitution

(infra, p. 7) provides in part:

If any Bill shall not be returned by the Pres-

ident 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.

tt is agreed that the Senate, the House of Con-

gress in which the bill originated, had taken a re-

cess or had adjourned on the tenth day (Sundays

excepted) after the bill had been presented to the

President, and that, by its action, it had prevented

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the President from returning the bill to it, to-

gether with his objections thereto, on that day.

The word “adjournment”, as used in the Con-

stitution, is not limited to final adjournment. Each

House adjourns from day to day, but neither House

_ may without the consent of the other ‘‘adjourn”’.

for more than three days. Article 1, Seetion 5,

Constitution. The Houses of Congress receive

messages from the President only while they are —

in session. See Senate Standing Rule XXVIII, :

Clause 1, House Rule XL;.Hind’s Pree. of H. of

R. ch. CX XXVIII, Sec. 6591, p. 812; 1 Curtis,

Constitutional History of the United States, p. 486.

The petitioner urges that the bill became a law

on the theory, apparently, that the President acts

at his own risk in taking the full ten days given

him by the Constitution in considering a bill of

Congress. The petitioner also ¢ontends that this

Court in The Pocket Veto Case, 279 U. 8. 655, held

- that the House of Congress in which a bill origi-

- nated must be in session at the time the veto is

returned thereto, and that.the action of the Presi-

dent in the instant case of delivering the bill, to-

gether with the objections thereto, to the Secretary

of the Senate, did not constitute a return in the

. manner provided by the Constitution. We do not*

believe, however, that the determination of the in-

stant case depends upon that part of the opinion,

for this Court also held in that case that the power

_ eonferred upon the President can not be narrowed

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or cut down by Congress, or the time within which

it is to be exercised lessened directly or indirectly.

It was stated (pp. 680-681) : |

4. We think that under the constitutional

provision the determinative question in ref-

erence to an ‘‘adjournment”’ is not whether

it is a- final adjournment of Congress or an ..

interim adjournment, such as an adjourn-

ment of the first session, but whether it is

— one that ‘‘prevents’’ the President from re-

turning the bill to the Housé in which it

originated within the time allowed. It is

clear, and, as we understand, is not ques-

tioned, that since the President may return

a bill at any time within the alloted period,

he is prevented from returning it, within the -

meaning of the constitutional provision, if

by reason of the adjournment it is impossi- |

ble for him to return it. to the House in

which it originated on the last day of that

period.

Edwards ‘y. United States, 286 U. S. 482, 486, and

La Abra Silver Mining Co. vy. United States, 175 ° -

U. S. 423, 454-455, hold to the same effect. We

submit, therefore, that, the return of Senate Bill

713 having been prevented by the action of the

Senate, it automatically failed to become a law in

the absence of the President’s signature. _

Executive interpretations to the contrary, set |

forth in the petitioner’s brief, are not persuasive.

They occurred during the administration of Presi-

dent Cleveland and President Wilson. The deci-

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sion of this Court in The Pocket Veto Case, supra,

clearly demonstrated the incorrectness of these in-

terpretations, if such they were. © :

Finally, we submit that were the interpretation

contended: for by the petitioner accepted, it. might

seriously prejudice the President’s veto power. It

is apparent that by means of the day to day, or

three-day recesses, or ‘‘adjournments’’ contem-

plated by Clauses 1 and 4, Section 5, Article 1 of

the Constitution, a branch of the Congress could

effectively nullify the President’s “veto power in

many instanées.

CONCLUSION

We ccanietilte submit that the decision of the-

court below is correct. There exists no conflict.

The petition for a writ of certiorari should, there-

fore, be denied. | *

| 4 Sranztey REep,

. Solicitor General.

Sam E. WHITAKER,

Assistant Attorney General.

‘ Paun A. SWEENEY, ©

_ Henry A. JULICHER,

Attorneys.

May 1937.

APPENDIX

Section 5, Article I of the Constitution of the

United States (U. §.C. A, siete Part I,

p. 31), provides:

Sec. 5. Each House shall be the Judge of

the Elections, Returns and Qualifications

of its own Members, and a Majority of each .

shall constitute a Quorum to do Business;

but a smaller Number may adjourn from

day to day, and may be authorized to compel

the Attendance of absent Members, in such

Manner, and under such Penalties as each —

House may provide.

- Kach House may determine the Rules of °

its Proceedings, punish its Members for dis-

orderly Behavior, and, with the Concurrence

of two thirds, expel a ‘Member.

Each House shall keep a Journal of its

Proceedings, and from time to time publish

the same, excepting such Parts as may in

their J udgment require Secrecy; and the

Yeas and Nays of the Members of either

House on any question shall, at the Desire

of one fifth of those present, be entered on .

the Journal.

Neither House, during the Session of Con-

gress, shall, without the consent of the other,

ag journ for more thar three days, nor to any

her Place than that in which the two

Houses shall be sitting.

Clause 2, Section 7, Article I of the Constitution —

of: the United States (U. 8. C. A., Constitution,

Part 1, p. 32), provides :

Every Bill which shall an passed the

House of Representatives and the Senate,

(7) .

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shall, before it becomes 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 thitds 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 becomie 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 i If any

Bill shall not be returned by the President

within ten Days (Sundays excepted) after

it shall have beeti presthted 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. ,

©. 5. GOVERNMENT PRINTING OFFICE: 1939