Brief for the United States — Wright v. United States

Supreme Court brief1938

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Constitutional provisions involved i Ns Mah tees tn oh ah ah om A aac 2

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CITATIONS

Cases:

Corwin v. Comp. General, 6 S. C. 390_____-____:_.______ 15

Edwards v. United States, 286 U. S. 482_..__.____-_____. 8, 10

Harpending v. Haight, 39 Cal. 189__.--....___________-__ 14

Jurney. v. MacCracken, 294 U.S.125________...__- .___ 15

Kilbourn v. Thompson, 103-U. S. 168_._________________ 16

La Abra Silver Min. Co. v. United States, 175 U. S. 423___ 8, 29

Lehman v. Lehman, 215 Pa. 344___..____._____...._____- 16

cee %. Bareia, TO Wa. GOB... noe ne noc... 16

May v. Topping, 65 W. Va. 656_________-__.. _________ 15

I EO i oc own nrnncatnaccenciae te 14

Pocket Veto Case, 279 U: S. 655______ 5, 7, 9, 11, 13, 14, 22, 24, 29

Pape v. Pape, 67 Ind. App. 153.______________________. 16

Public Utilities Board, In re, 83 N. J. L.-Rep. 303________ 15

Soldiers Voting Power, 45 N. H. 607_.______....._______ 15

State ex rel Corbett v. South Norwalk, 77 Conn. 257_______ ' 14

State ex rel Putnam v. Holm, 172 A IG Wi itksctedoan aut 15

Stegler’s Ex. v. Stegler, ol PO ae 16

Tuttle v.. Boston, 215 Mass. 57____- Rakin aa aecnan 14

United States v. Midwest Oil Co., 286 U.S. 459___.___.__ 29

United States v. Minnesota, 270 U. eee 29

Wood v. State Administrative Board, 255 Mich. 220_ ie in 14

Wright v. United Staies, 60 C. Cls.519__________..___ .3

_ Constitution of the United States—

eran ee ke 9

Article I, Section 7, Clause,2__.._......_.-...-.-__.__. 7

(Tt

21262—37——-1

Miscellaneous: Page

Elliots Debates, Vol. 5, 151-158, 344-348_ isan dain scene 23

Farrand, Record of the Federal Convention, Vol. 2, Journal,

Ss SI By BOG octets ccnpcansnccncccscncncane 22, 23

Federalist, No. 73, pp. 337-340__.._._-----------------: 23

Oe a ee

Story, Constitution of United States, 4th Ed. 622-631_-_---- 23

Warren, The Making of the Constitution, pp. 185-187, 453-—

Phe th uen dade ses ddd aeedhedebenacabinemecs 23

Inthe Supreme Gourtoft the nited Sintes |

OcToseR TERM, 1937

No. 37

Davip A. WRIGHT, PETITIONER

| THE UNITED Srares

ON WRIT OF CERTIORARI TO THE COURT OF CLAIMS* OF

THE UNITED STATES

’

BRIEF FOR THE UNITED STATES

Coes BELOW

The order of the Court of Claims overruling the

petition below (R. 6) was entered without an

opinion.

| JURISDICTION

The order of the Court of Claims was entered

' February 8, 1937 (R. 6). The petition for a writ

of certiorari was filed April 30, 1937 (R. 6), and

was granted Jime 1, 1937 (R. 6). The jurisdiction —

of this Court rests upon Section 3 ( b) of the Act

of February 13, 1925. ie .

(1)

QUESTIONS -PRESENTED

Whether a bill becomes 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

objections to the House of Congress in which the

bill originated, because that House has adjourned.

Whether a bill becomes a law without the signa-

ture of the President where the President, on the

tenth day after the bill was presented.to him, re-

turns the bill together with his objections to the

Secretary of the Senate (the House in which the

_ bill originated), the Senate being then in recess

pursuant to an adjournment for three days. died

. CONSTITUTIONAL PROVISIONS INVOLVED

The ‘applicable portions of the Constitution are

set forth in notes 1 and 2, pages 7, 9, and 10, infra. |

The facts as disclosed by the record (R. 14)

may be summarized as follows:

Senate Bill No. 713 authorized the Court of

Claims to reopen and rehear a claim of the peti-

tioner which had theretofore been decided against

him (R. 3, 4): The bill was presented to the Presi-

dent of the United States on Friday, April 24, ~

1936°(R. 1). It had originated in the Senate (R.

3). -On Monday, May 4, 1936, that body took a

recess unti] noon Thursday, May 7, 1936, but the

House of Representatives remained in session (R.

1). On May 5, 1936, and while the Senate was in

_ recess, the President returned the bill, together

with a message addressed to the Senate setting .

forth his objections to the bill. The bill and the

_ Message were delivered to the Secretary of the

Senate (R. 2). When the Senate reconvened on

May 7, 1936, the Secretary thereof, by letter, ad-

vised it of the return of the bill and the delivery of

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

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

referred to the Committee on Claims of the Senate

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

(R. 3).

On September 14, 1936, the sits: acting

under the asserted authority of S. 713, filed'a peti-

tion in the Court of Claims to reinstate, reopen,

rehear, and readjudicate his claim, which had

_theretofore been dismissed. Wright v. United

States, 60 C. Cls. 519. The United States opposed

this petition on the ground that Senate Bill 713

had never become a law (R. 5,6). The court below

overruled the petition on February 8, 1937 (R. 6).

SUMMARY OF ARGUMENT

The Constitution and the decisions of this Court

make clear that at least in every other situation

than the one here presented the President has ten

days (Sundays excepted) within which to mani-

fest his approval or disapproval of bills presented

to him by the Congress. - The question now raised.

is whether the case of an adjournment at the end

of seven days by the House in which the bill origi-

nated, while the other House remains in session,

constitutes an exception, so that, regardless of what

the President may do thereafter, the bill becomes

a law. R

The first question is whether, assuming that the

return of the bill was ‘‘prevented’’ within the

meaning of the Constitution, it was “‘the Congress

by their Adjournment’’ whieh prevented it. The

petitioner @ontends that this phrase can only be

construed as referring to-a concurrent adjourn-

ment of both Houses of Congress. The use of the

plural in the pronominal adjective ‘‘their’’ and -

the verb ‘‘prevent’’, upon which petitioner relies,

is without significance in view of the fact that the —

usage of the Constitution wquld have required the

- plugal likewise to be employed in any alternative

phrasing, even as: applied to a single House of Con-

gress. The Constitution elsewhere illustrates the .

disjunctive use of the plural ‘‘their”’, referring in

the indefinite sense to one or the other House of

Congress, as the case may be. Any action taken

" in pursuance of authority conferred by the Consti-

tution, whether by one of the component branches ~

of Congress or by both, may appropriately be

spoken of as action of Congress. If the phrase,

‘“‘unless the Congress by their Adjournment pre-

vent’’, be understood in this inclusive sense, theré

_ is no difficulty in concluding in this case that “the

Congress by their Adjournment prevent[ed the]

‘Return’’ of the bill-when the only House to which

it could have been sent, exercising a power author-.

ized by Article I to be exercised separately, ren-

dered itself incapable of receiving it.

Under the view urged by the petitioner, a ies

House of Congress would be enabled to reduce

from ten to seven days the time within which the

President’s power of veto can be exercised. Such

a result the Constitution plainly forbids. The

Pocket Veto Case, 279 U. S. 655, 675. By obtain-

ing the consent of the other House, the House of

origin, indeed, might adjourn for ten days and so ©

take away the power of veto altogether. The

powers of the executive and legislative branches

of the Government were intended to function har-

_moniously. To carve out an exception to the es-

tablished doctrine protecting the President’s

powet of veto from destruction or impairment’ by

Congress would be to deny accepted canons of con-

stitutional interpretation and to subtract much of

the meaning. from this Court’s express declarations

concerning the scope of the power.

This Court in The Pocket Veto Case, supra, at

pp. 680-685, held that an adjournment of the first

session of a Congress “‘prevented’’ the return of a

bill, saying that ‘‘the ‘House’ to which the bill

is to be returned, is the House in session.”’ It is

- not clear that this holding applies to an adjourn-

ment by a single House for a period constitution-

ally limited to three days. _ The return of a bill to

a ‘permanent officer of the House in such a case-

‘involves no violation of the purpose of the Consti- .

tution that the status of a bill should not be kept —

in prolonged ‘uncertainty and that reconsideration

by the Congress in the light of the President’s ob-

jections should be immediate. This, however, is

a question as to whether the bill should be held not

to have become a law because of a so-called pocket

veto, or because of the failure of Congress to re-

- consider it and pass it over the President’s veto.

It is plain in any event that the bill did not become

a law in the absence of either one.of the alternative

safeguards against improvident legislation pro-

vided. by the Constitution—the approval of the

President or reconsideration by Congress pursuant

to a procedure of special solemnity.

IIT: | e

The ten’ executive precedents occurring in the

| administrations of Presidents Cleveland and ‘Wil--

son are not persuasive. They disclose no long-—

settled and established practice. In the present

ey. ease, before any controversy arose, the practice

* was assumed to be the a both by Congress

and the President.

AEGUMENT

The argument for the petitioner seeks to estab-

lish, in effect, that there is a hiatus in the pro-

visions of the Constitution * giving to the President

_ ten days (Sundays excepted) within which to man-

ifest his approval or disapproval of bills presented

to him by the Congress. The importance of the

opportunity for deliberation afforded by these

provisions, this Court has repeatedly emphasized.

The Pocket Veto Case, 279 U. S. 655, 677, 678;

+ Clause 2, Section 7, Article I of.the Constitution of the

United States (U. S. C. A., Constitution, Part I, p. 32),

provides: |

“Every Bill which shall have passed the House of Rep-

resentatives and the Senate, shall, befare 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 orig-

inated, who shall enter the Objections at large on their

Journal, and proceed to reconsider it. If after such Recan-

sideration 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 en-

tered on the Journal of each House respectively. If any

Bill shall not be returned by the President within ten Days

_ (Sundays excepted) after it shall have been presented to

‘ him, the Same shall be a Law, in like manner as if he

had signed it, unless the Congress by their Adjournment —

prevent its Réturn, in which Case it shall not be a Law.”

21262—37——2

Edwards v. United States, 286 U. S, 482, “493, 494.

The terms of the Constitution and the Court’s: -de-

cisions make plain that at least in every other sit.

uation than the one here presented the opportunity —

exists unimpaired. The questign presented is —

whether the situation now before the Court con- -

stitutes an exception. |

(1) When both Houses of Congress remain in

session for ten days after presentation of a bill,

no question, of course; has ever arisen as to the

President’s power either to approve or to disap-

prove the bill within the ten days provided by the

- Constitution. * Approval—the Constitution makes

clear—may be manifested at any time within the

designated period by. the signing of the bill; dis-

approval, by its return with a written statement

of objections to the House in which it originated.

Failure of the President togfake either of these

affirmative courses of action results in the bill be-

coming a law without his approval.

- (2). When one or both Houses has adjourned, it

is no longer open to question that the President re-

tains for the full ten-day rp the power to ap-

prove the bill. That the ident may sign a bill

. during a short recess of Cofigress was settled iwLa

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

423. And in Edwards v. United States, 286 U. 8:

482, it was determined that his approval was like-

wise effective although it was given after the final

adjournment of Congress.

(3) When both Houses have adjourned, whether

with or without. day, the President is similarly '

empowered to make his disapproval effective. In ..

the case of a final adjournment this has never been

disputed; ‘the Constitution expressly saves the

President from the necessity: of cutting short his —

deliberation and declaring his disapproval at once

in order to declare it at all. The bill—it says—is.

not to become a law wherever “‘the Congress by

‘i their Adjournment prevent its Return.” . In The

Pocket Veto Case, 279 U. S. 655, the Court held

that this language applies to adjournment merely

- for the session as well.as to final adjournment of

_ the Congress. That it applies also to shorter

adjournments of the whole Congress, the opinion

‘in that case leaves little doubt. |

The argument here made is that the case of

adjournment by the House in which a bill -origi-

_ nated, while the other House remains in session,

constitutes the single break in the -uniformity of

this constitutional scheme. Under such cireum-

stances, it is urged, the power of the President to

‘disapprove a bill at any time within the ten-day .

‘ period is dependent upon the willingness of the

originating House to remain in session. In its un- .

controlled discretion, that House—if the argument

be accepted—may adjourn for three days,’ and so

? Section 5, Article I of the Constitution of the United

States (U.S. C. A., Constitution, Part I; p. 31), provides:

- Sec. 5. Each House shall be the Judge of the Electidns,

Returns, and Qualifications of its own Members, and a.

reduce to seven days, as it is claimed td have done -

here, the opportunity for deliberation/provided by

the Constitution. If it may do so much, no reason

_appears why it may not by successive adjourn-

ments, commencing « on the day the bill is presented,

destroy the opportunity altogether—subject only to

the possibility that the President’s messenger may

succeed in catching it in a brief moment of session

before readjournment. Indeed, if it is the fact of

session by the other House which is decisive, the

argument goes to the extent of permitting the

originating House to adjourn with the consent of

the’ ‘other for the entire period and so to prevent

any exercise of the veto power whatever. |

The asserted existence of such an. exception to

the general scheme of the Constitution is difficult

to reconcile with the language which this Gourt

has used in describing the nature and importance

of the President’s. opportunity for deliberation.

Thus, in Edwards v. United States, supra, the

Court said (pp.-493, 494) :

Regard must be had to the Suniioutinnkel

purpose of the constitutional provision to

provide appropriate opportunity for the

President to consider the bills presented to

Majority of each shall constitute a Quorum to do Busi-

ness; but a smaller Number may adjourn from day to

day * * *,

Nei: her House, during the Session of Congress, shall,

without the consent of the other, adjourn for more than

three days, nor to any other Place than that in which the

_ two Houses shall be sitting.

him. The importance of maintaining that

opportunity, unimpaired increases as bills

multiply. The Attorney General calls at-

tention to the fact that at the time here in

question, that is, between February 28, 1931,

and noon of March 4, 1931, 269 bills were

presented to the President for his consider-

ation, 184 of which wére presented te him

during the last twenty-four hours of the ses-

sion, No possible reason, either suggested

by constitutional theory or based upon sup-

posed: policy, appears for a construction of

the Constitution which would ‘cut down the

opportunity of the President to examine and

. approve bills merely because the Congress

has adjourned. No public interest would be

conserved bythe requirement of hurried and

inconsiderate examination of bills in the

closing hotirs of a session, with the result

that bills may be approved which on further

consideration would be disapproved, or may

fail although on such examination they

_ might be found to deserve approval.

Again, in The Pocket Veto Case, supra, it was-said

(pp. 677, 678):

* * * The faithful and effective exer-

cise of this niomentous duty necessarily re- .

quires time in which the President may

carefully examine and consider a, bill and

determine, after due deliberation, whether

he should approve or disapprove it, and if

he disapproves it, formulate his objections

for the consideration of Congress. To that |

end a specified tiine is given, after the bill _

hag been presented to him, in which he may

examine its provisions and either approve _

it or return it, not approved, for reconsid-

eration. See Te Abra Silver Mining Co. v. -

United States, 175 U. 8. 423, 455. The.

power thus conferred wpon the President

cannot be narrowed or cut down-by Con-

gress, nor the time within which it is to be

exercised lessened, directly or indirectly.

And it is just as essential a part of the con-

‘stitutional provisions, guarding against ill-

considered and unwise legislation, that the

. President, on his part, should have the full

time allowed him for determining whether

he should approve or disapprove a bill, and

if disapproved, for adequately formulating

the objections that should be considered by

Congress, as it is that Congress, on its part,

‘should have an opportunity to re-pass ‘the

bill over his objections. - [Italies supplied. ]

The italicized sentence in The Pocket Veto Case

had reference to the possibility of joint action by

both Houses of Congress narrowing or cutting

_ down, the stated power of the President. More

specifically, it referred to such action putting an

end to the session. Such an adjournment is not

likely to be taken as readily as a mere temporary

recess. And joint action by both Houses is likely

to be more responsible, better considered action,

than action by ‘either House alone. There is

greater danger, accordingly, of encroachment upon

the President’ s power of disapproval in the fashion

here ‘in question than in the fashion which the

Court was there considering. It would begstrange

if the Constitution, while guarding the President’s

power. against the lesser danger, had left it exposed

to the greater. |

The argument that the power is so exposed _de-

pends upon a dual proposition. The Constitution

provides two methods by. which the President may

niake effective his disapproval of a bill—first, by

returning it with. his objeétions to the House in

which it originated ; and, second, where ‘‘the Con-

gress by their Adjournment prevent its Return”?

by simply failing to sign it. ‘Ordinarily these two

_Inethods complement each other, so that the un-

availability of the one implies the availability of

the other, and vice versa. In this special case,

however, it is urged that neither was: available.

The President, it is said, could not return the bill

to the Senate, where it originated, because the

Senate by its adjournment had prevented. its re-

turn. For this first aspect of the proposition, —

the petitioner relies upoh The Pocket Veto Case,

supra. Yet the. President—the contention also

is—could not make his disapproval effective: by the

second metfiod, for while the return was ‘‘pre-

vented”’ it was the Senate and not ‘the Congress”

_ which prevented it. For this second aspect of the

proposition, the petitioner relies upon a literalistic

interpretation of the terms of the Constitution it-

self, supported-by ten instances of executive inter-

pretation during the administrations of President -

Cleveland‘ and. President Wilson.

14° A

Both aspects of the proposition adyanced by the

petitioner are presented by the case at' bar. For

the President, in the effort to make effective his dis-

approval of the bill, attempted to resort to both

of the methods authorized by the Constitution.

He sought to return the bill to the Senate by de-

livering it, together with a written statement of his

objections, to the Secretary of the Senate. At the

same time, in refusing to sign the bill, he made .

possible the operation of the alternative or com-

plementary constitutional provision. :

In the opinion of the Government, the petitioner

is probably correct in doncluding that the at-

tempted return of the wy he de Senate was inef-

fectual. This we think f so, however, only if the

other method of making effective the. President’s

* disapproval was’ operative. What is clear, above

all, is that—by whatever method to be exercised—

the power of veto existed, and existed with full

opportunity for deliberate, unhurried considera-

tion during the allotted period.’

As this Court said in The Pocket Veto Case, 279 U. S.

at 675, 676, decisions of state courts construing state consti-

tutional provisions—“due in some. part to differences in

' phraseology or their application to the procedure ofthe state

legislatures”—furnish no substantial aid in the determina-

tion of such questions as that here presented. We have been

unable to find any such decision, however, adopting. a con-

struction which would have the effect here contended for of

curtailing or nullifying the executive’s power of veto. Com-

pare Harpending v. Haight, 39 Cal. 189; State -v. South

Norwalk, 77 Conn. 257; People v. Hatch,,33 Ill. 9, 129, 134,

138; Tuttle v. Boston, 215 Mass. 57, 58-61; Wood v. State ;

The question first to be considered is whether,

assuming that the return of the bill was ‘‘pre-

vented’’.within the meaning of the Constitution,

it was “the Congress by their Adjournment’’

‘ which prevented it. .

1. The petitioner urges the impossibility of a .

disjunctive interpretation of the collective noun

‘“‘Congress’’ and the possessive adjective ‘‘their’’.””

Administrative Board, 255 Mich. 220, 227-233 ; State ex rel.

Putnam v., Holm, 172 Minn. 162; Soldiers Voting Power,

45 N. H. 607, 610; Jn re Public Utilities Board, 83 N. J. L.

303; Corwin v. Comptroller General, 6 S. C. 390( May v. ©

- Topping, 65 W. Va. 656, cited by the petitioner, arose under

special constitutional provisions relating to the item veto in

appropriations. .

In Jn re Public Utilities Board, supra, the Supreme Court

of New Jersey, construing provisions substantially identical

with those of the Federal Constitution, said (p. 312) :

“The manifest purpose of the provision is to prevent the

legislature, by an adjournment of more than five days, from

‘putting it out of the power of the governor within that

period to take advantage of his constitutional right—to ful-

fill the constitutional duty imposed upon him; and we con-

sider the purpose nfanifest, notwithstanding that the lan- |

guage used in the constitution is ‘unless the legislature’, and

so forth, instead of ‘unless the house of origin’, 2nd so forth,

for, as it is the adjournment of the house of origin alone,

and not of both branches of the legislature, which prevents

executive action, the necessary inference is that the words

‘the legislature’ are used in this connection as synonymous

with ‘the house of origin.’.” i eae

* The disjunctive use of both these terms is by no means

uncommon. This Court in Jurney v. MacCracken; 294

U. S. 125, 148, referred to the action of: the House of Rep-

resentatives in punishing for contempt as an act. of “Con-°:

He thus tenders an issue of grammar and the dic-

tionary meaning of ‘words. Even if the questign

could properly be decided solely upon this footing,

the case for the eye would be at best un-

certain. 7

The petitioner’s. first clear error lies in the sig:

nificance which he attaches to the use of the plural

in the adjective “‘their”’ and. the verb ‘‘prevent’’. ,

Brief for the Petitioner, 9, 10. He assumes that .

the antecedent of “their” is the ‘‘Senate and

House of Representatives’, the two parts of

which—in the words of the Constitution—‘‘the

Congress of the United States * * *. shall

consist’’.. Thus he interprets the provision in

question as if it read, “‘unless the Senate and the

House of Representatives, acting concurrently, by

their Adjournment prevent”’ the return of the bill;

and as if this meaning were to’ be contrasted with

a-meaning not in ded, *‘unless- the House in

which the Bill as originated by its Ad-.

- journment prevents”’ the return of the bill.

~ It is well to attribute: to the framers of the Con-

stitution “careful diction” (Brief, 10), but it is

necessary to remember that the diction is that of ©

the ancien and not the twentieth ey. In

' gress”. Again, in Kilbourn v. Thompson, 103 U. S. 168,

194, a resolution of the House of Representatives was simi-

larly described. The word “their” has likewise been inter-,

preted on occasion in the disjunctive as well ‘as the con‘

junctivy sense. Luce v. Harris, 79 Pa. 482; Lehman v.

Lehman, 215 Pa. 344; Stegler’s Exec. y. Stegler, 77, Vu. 163;

Pape v. Pape, 67 Ind. App. 153. .

Stl aoe : opt eo. om

. - ‘

‘

referring to a collective body in the definite sense

(the Congress, the Senate, the House of Repre-

sentatives or that particular House), the Constitu-

tion invariably uses the plural, the connotation

* being, of “course, to the members of the body. Aec-

cordingly,-even if the Constitution had spoken of

the particular House in which the bill originated,

it would still have used the ptural—‘unless that

House by their Adjournmeng prevent its Return’’. .

This is manifest from another sentence in the very

section under consideration :

If he approve he shall sign it [the bill],

but if not he shall return it, with his Objee-

tions to that House in which it shall have

- originated, who shall.enter the Objections

at large on their Journal, and proceed to

reconsider it.

_ The most that can be urged in the petitioner’s

favor from the use of the plural in the provision in

‘question is that it is ambiguous, The connotation —

may be simply to the individual members of the

Congress or it may be to the two Houses. In-either

case, since in an alternative phrasing the singular

would in no event have been appropriate, the plural

may be read with equal ease aia eaig ‘as con-

junctively.

There is, indeed, reason to believe that it may

be so read with greater ease. A further aspect of

- eonstitutional usage in the application of pronom-

inal adjectives to collective nouns must be taken

_ into account. The singular “‘its” is used repeat-

edly in the Constitution with reference to a House .

of Congress.’ Yet, as 8 already noted, - the —

also is used.*

The diction of the Constitution 4m the respect

under discussion is evidently either the very op-

posite of “‘eareful’’, in which event no infer-

ence can be drawn from it, or else it proceeds

according to a practice of considerable nicety. The

latter would appear to be the true case. For if the

instances given be compared, it -will be seen, as

already suggested, that the plural is used when the

‘reference is to a House in the definite sense and the

* Section 5, Article I, of the Constitution of the United

States (U. S. C. A. Constitution, Part 1, p. 31) provides,

inter alia: :

“Each House shalf be the Judge of the Elections, Returns

and Qualifications of its own Members * * *.

“Each House may determine the Rules of its Proceedings,

pinish its Members for disorderly Behaviour ©* -*

“Each House shall keep a Journal of its Proceedings

- . . ”

* Section 3, Article I, of the Constitution of the United

States (U.S.C. A. ‘Constitution, Part I, pp. 30, 31) ae,

_ inter adia: &

“The Senate, of the United shall be cqmposed of

two Senators from each State * * *.

“Immediately after they shall be assembled in consequence

of the first Election, they shall be divided as equally as may

be into three Classes * * *.

» “The Vice President of the United States shall be Presi-

dent of the Senate, but shall have no Vote, unless they be

equally divided. .

“The Senate shall chuse their other Officers * * *.”

The last example, which is not unique, rules out any sug-

gestion that the plural is employed when the emphasis is

upon the individua] members and the singular when the ref-

singular when the reference i is toa miouae in the

indefinite sense.

This practice raises: the problem of the appro-

priate number when the desired reference is to

more than one House—ont or the other—in the in- °

definite sense. The natural solution would be to

use the plural again, thus giving if a dual function.

This appears to be precisely the usage which the 3

Constitution follows. The single most striking in-_

stance of pronominal number in the Constitution

affords the confirmation.

_ Each House shall keep a Journal of its

proceedings, and from time to time publish

the same, excepting such parts as may in

their Judgment require secrecy * * *

Manifestly the. “‘Judgment”’ intended i is not the —

concurrent judgment of both Houses. The sense, .

__in current usage, would he ave been the same

if the singular ‘‘its’’ had been used, as it was in the

clause immediately preceding. Nor is explana-

tion possible, as already pointed out,’ on the ground /

. that the journal is that of the collectivity but the

judgment*that of the individual members. The

word “‘their’’ signifies unmistakably not one House

but either the one House or the other, depending

upon whose. proceedings it is the publication ‘of

which is in question.

erence is to the collectivity. The individual members of the

Senate do not have officers, nor '& they _ a journal (see

p. 17, supra).

See note 6, supra. nee . *

;

\ 20

The clause, “unless the eases by their a

journment prevent. its. réturn” , can similarly be . |

read as referring to the adjournment of either one

of the component parts of Congress, or of the con-

~ current adjournment of both parts, depending like-

wise upon whose adjournment is in question.

The meaning thus given to the provisions under |

disCission is a natural and consistent one. The

Congress, says the Constitution, ‘‘shall consist of a

Senate and a House of Representatives.”’ ‘The Con-

stitution gives to the Congress so established’ cer-

tain. powers to be exercised concurrently by both

Houses and other powers to be exercised sepa-

rately; by one or the otlier House. With respect to

; adjournment, action in certain circumstances is to

be concurrent and in otherg separate—sometimes

with and sometimes without the consent of the

other. In all cases the aetion appropriate to the

‘ circumstances may appropriately be spoken of as

action of the Congress. If the phrase, ‘‘unless the |

Congress by their Adjournment prevent’’, be

understood in this inclusive sense, there is no diffi- -

culty in concluding, in the case at bar, that ‘‘the

Congress by their Adjournment prevent[ed the] ©

_Return”’ of the bill when the only House to which

it could have been sent, exercising a power au-

thorized by Article I to be exercised separately,

rendered itself incapable of receiving it.

_ 2. So far as the answer by way of grammar falls

short of meeting the petitioner’s contention con-'

dlusively, it does so only because the question pre- .

sented is not one of grammar. It is a question of

‘government, a question accordingly to be decided

with regard to the overriding intention of the Con-

stitution ‘to establish a rational and. workable

method of subjecting projected legislation to

executive scrutiny. |

Viewed in this light, there can be no doubt, we

think, that whenever an adjournment ‘“‘prevents’’ -

the return of a bill within the meaning of Mie Con-

- stitution, that adjournment is equally one of ‘‘the

- Congress”, within the same meaning, whether it

be an adjournment of both Houses acting concur-

-rently, an adjournment of one House acting with

the consent of the other, Ar an ance naan of a

single House acting alone.

The case of an adjournment for more than ten

days by the House of origin, with the consent of

the ether, reveals decisively the fallacy of the péti-

tioner’s contention.” If such an adjournment were

to havegthe effect hare ‘urged, Congress would

possess power at any time to nullify the Presi-

: dent’ S. power of veto—contrary to the plainest in-

tention of the Constitution. Yet'the petitioner’s

argument, if valid in the case at bar, is valid also

in the case supposed. It is true that an adjourn-

ment by one House with the consent of the other

might be said to be action of ‘‘the Congress”’

within the meaning which petitioner: seeks to give

that term. But still it would not be Congress ‘‘by

their adjournment”’. which had prevented the re-

turn of the bill, but only Congress by the. adjourn-

ment of a single House.

_ Extensible or not, the petitioner’s view even as

confined to the situation presented in the case at

bar is destructive of the relationship between the

Executive and Legislature contemplated by the

Constitution. The Constitution contemplates

that the President shall have ten days, and not

seven, within which to determine whether to ap-

prove or disapprove a bill.” Not only would the

petitioner’s view, if accepted, in effe¢t bring about

a reduction of the period provided, but it would

necessitate the exercise of excessive diligence by the

President if he desired to veto a bill within even

this reduced period. . This Court’s measured state-

ment in The Pocket Veto Case, supra (p. 677) may

here appropriately be repeated :

The power [of veto] thus conferred upon

the President cannot be narrowed or cut —

down by Congress; nor the time within

which it is to be exercised lessened, directly

or indirectly.

Any other doctrine would be difficult to justify.

The powers of the executive and the legislative

branches were intended to function harmoniously.

‘8 See Farrand’s Record of the Federal Convention, Vol..2,

- Journal, pp. 295, 296, Wednesday, August 15, 1787:

“It was moved and seconded to strike out the word ‘seven’

and insert the words ‘ten (Sundays excepted)’ in the 13th

sect. of the 6 article’ * * * which passed in the affirma-

tive [Ayes 9, Noes 2]. On the question to agree to the 13th

sect. of the 6 a:ticle as améended—it passed in the affirma--

tive.” Only New Hampshire and Massachusetts voted “no.”

See also tbid, p. 302.

PERT OT he eee

In the respect here in question they admit of an

intefpretation which will permit them so ‘to func-

tion. By that interpretation nothing will be taken

away from the usual and the accepted powers of

either, and nothing will be added. To carve out

an exception whereby Congress would be enabled,

on occasion, to destroy or impair the President’s

usual power of veto would be to deny accepted

canons of constitutional interpretation and to sub-

tract much of the meaning from this Court’s ex-—

' »press declarations concerning the scope of the

power.

What has been said is sufficient to dispose of the

petitioner’s further suggestion (Brief, 13-17) that

the veto power, ‘‘being in derogation of legislative

power”’, is at all times to be narrowly construed.

If the point in question were the possession under

special circumstances of a power wider than that

understood and recognized in the generality of

cases, the suggestion might have force. Under the .

circumstances at bar, it is in the teeth of this =f

Court’s repeated affirmations of the existence of an

effective veto power. It is in the teeth also of the

expressed determination of the delegates to the

Constitutional Convention to endow the Executive

with such a power. Elliot’s Debates, Vol. 5, pp.’

151-155, 344-348 ; Mason, Veto Power, p. 20; Fed-

eradlist, No. 73, pp. 337-340; Farrand, ibid, Vol. 2,

‘pp. 085-587 ; Story, Constitution of the United

States, 4th ed., pp. 622-631; ; Warren, The M aking

of the Constitution, pp. 185-187, 453-463.

| 24

The petitioner’s conclusion that the effort of the

President to return the bill to the Senafe was in-.

effectual is rested shortly (Brief, 5, 6) upon this

Court’s holding in The Pocket Veto Case, supra,

at 682, that ‘the ‘House’ to which the bill is to be

returned, is the House in session.’? While the ~ ~

conclusion of the petitioner. is probably correct,

the point—in view of its importance—ought not to

pass without: consideration.

This Court in The Pocket. Veto Case was con- °

cerned not with an adjournment of a singte, House

for a period constitutionally limited to three days

but with-an adjournment of a regular session of °

Congress approximately five months before the

prescribed date for the meeting of the next ses--

sion. It was considering the effect of delivery of -

a bill with the President’s objections to a perma-.

nent officer of the House, during such an adjourn-

-ment, not in a case in which the President had at-

tempted such delivery but in a case in which it was

asserted that a bill had become law because of his

failure to make the attempt.

In support of its conclusion that such a delivery -

could not have been made and that an adjournment

of a regular session of Congress aécordingly pre-

vented the return of the bill, the Court gave the

following reasons (pp. 684, 685) :

a Manifestly it was not intended that, instead

of returning the bill to the House itself, as -

required by the constitutional provision, the

President should be authorized to deliver it,

durmg an adjournment of the House, ‘to

some individual officer or agent not author-

ized to make any legislative record of its .

delivery, who should hold it in his own hands

for days, weeks or perhaps months—not

only leaving open, possible questions as to ~

the date on which it had been delivered to

him, or whether it had in fact been deliv-

ered to him at all, but keeping the bill

in the meantime in a state of suspended ani-

matien until the House resumes its sittings,

with no certain knowledge on the part of .

the public as to whether it had or had’ not

been seasonably delivered, and necessarily

causing delay-in .its-reconsideration which

the Constitution. evidently intended to

avoid. In short, it was plainly the object of

the constitutional provision that there should

be a timely return of the bill, which should

not only be a matter of -official record defi-

nitely shown by the journal of the House it-

self, giving public, certain and “prompt

knowledge as to the status of the bill, but

should enable Congress to proceed immedi-

_ately with its reconsideration; and that the-

return of the bill: should be an actual and

public return to the House itself, and not a

fictitious return by a delivery of the bill to

some individual which could be given a ret- -

roactive effect at a later date. when the time

for the return of the bill to the House had

expired.

" Somé of these reasons may have application to

’ the ease at bar. Others have not. If the Secre-

tary of the Senate is wholiy without authority to

receive the bill and make a legislative record

thereof, or if such authority could not constitution-

ally be given even in a situation not offending the

substance of the canstitutional purpose, then fur-

ther discussion of the question is foreclosed. It is

‘to be noted, however, that the first point, as to au-

thority in fact, was dealt with by the Court only as

a reason “‘aside from’’ the principal constitutional

reason (p. 684) ; and that there are strong grounds

for concluding that the authority does exist where-.

ever it can be constitytionally conferred. See

Argument of Amicus Curiae, 279 U. S. 666, 669-

671. The original delivery of a bill to the Presi-

dent, of course, is frequently constructive. If then

the primary objection in The Pocket Veto Case was

a constitutional one, a different conclusion may well

‘be reached in the case at bar, for the applicable con- -

stitutional considerations differ materially. ‘There

is here no danger of keeping a bill for an uncertain

period ‘‘in a state of suspended animation”’, con-

trary to the design of the Constitution that its

status be readily ascertainable. No possibility is

involved of material delay in determining the fact

or the date of delivery. Nor will Congress be pre-

vented from proceeding immediately, as the Con-

stitution intended, with its reconsideration of. the

bill. |

Much of the petitioner’s argument in the fourth

- section of his brief (pp. 13-17) is persuasive, if at.

all, only of the view that the return of the bill 4s

the President was effectual and that Congress was

not disabled from proceeding to its reconsidera- —

tion. For “‘derogation of legislative power’, if

_ any, would result from such disability, not from

upholding the power of the President to exercise

his veto with the same opportunity for deliberation

as in ordinary cases. Where a session of Con-

Gress is interrupted only by a brief adjournment of

one House for a period to which the Constitution

itself sets a maximum, it may well be thought that

the exceptional power of final non-approval * ought

not to exist, and that the power of disapproval

should bé cliecked, as in ordinary casessby an op-

portunity for the legislative branch to consider the

formulated objections of the Executive and by a

special majority to override them.

The petitioner’s positions upon the point here in

question and that previously considered (pp. 15-

23, supra).will be seen upon examination to be self-

defeating. The veto provisions of the Constitution

are designed to afford alternative safeguards

against the enactment of improvident legislation.

*.The Court im The Pocket Veto Case referred (p. 676) to

“a silent and ‘absolute veto’, that is, a so-called pocket veto,

which neither discloses his [the President’s] objections nor

gives Congress an opportunity to pass the bill over them.”

As the Court pointed out (pp. 676-679), the term “pocket

veto” is intpt to the extent that it fails to recognize that the

failure of the bill may be attributable as well to the Presi-

dent’s lack of time for examination and deliberation while

Congress is in session, as to affirmative disapproval.

Where the President approves a bill—or, more ac-

curately, where after full opportunity for delibera-

tion he faif to disapprove it—the bill is to Become

-alaw. In the alternative, despite the President’ S

disapproval, ‘it is to become a law where the Con-

gress by a prescribed and specially solemn pro-

-_eedure has reviewed the President’s objections and

determined that they should be overridden. When

such reconsideration is clearly impossible, the Con-

stitution declares expressly that the absence of the ©

first safeguard shall be decisive—the failure of

the President to give his approval results in the

bill not becoming a law. Whether this result shall

follow even though the impediment to reconsidera-

tion by Congress is the slight one of a temporary ./-~

and limited adjournment by a single House, or |

whether Congress remains empowered to recon-

sider the bill, is a difficult question. That, however,

is merely a question as to the availability of the

alternative constitutional safeguard. The peti-

tioner’s contggtion, on the other hand, is that under

these special ‘Gi’cumstances the bill is to become a

law-in the absence of either of the safeguards pro-

vided by the Constitution. The question thus pre-

~ sented, we Submit, is not one of difficulty. The con- |

tention is contrary to the ‘Plain antendment of the

Constitution.

Jil

The petitioner eites (Brief, 17-21) in support

of his contention nine instances of executive inter-

‘

foo eee |

&, : ’

| i |

. » pretation occurring in the administration of Presi-

_ dent Cleveland and one occurring in the adminis-

fo tration-ef President Wilson. The precedents are

not persuasive. Four points are to be noted con-

cerning them. Niné€ of the instances antedated all

the decisions*of this Court concerning the scope of

of the veto power and the tenth antedated all but one

_ (La Abra Silver Mining Co. v. United States,

supra). All of them are reconcilable only with

difficulty, if at all, with those decisions. In none

- 2 of the instanées, moreover, does it appear that the

7 | President affirmatively disapproved the bill. Cer-

j tainly he did not evidence his disapproval, and the

question here involved as to whether. the power of

' veto can be curtailed by the adjournment of a

single House acérdingly was not presented. Nor

can it be said that the instances in question dis-

close any fong-settled or established practice.

United States v. Midwest Oil Co., 236 U.S. 459,

473; United States v. Minnesota, 270 U. S. 181, .

205; The Pocket Veto Case, 279 U.S. 655, 689.

| Where instances which might constitute precedents

‘seldom occur, and are not subjected to the serutin

of successive executive officers or of the courts,

their value is minimized. ‘So far was the practice

in this case from being established in the petition-.

er’s favor that it was assumed both by Congress

and the President to be the contrary. The Senate, —

when the. President’s disapproval was communi-

cated to it, took cognizance. thereof; and referred °

«?

the bill to the Claims Committee (R. 3). No fur-

ther action was taken; and the bill never was

treated as having become law.- Finally, the ulti-

mate question, jas the petitioner himself points out

' (Brief, 21), is not what Congress and the Presi-

_ be affirmed.

dent thought, but what the Constitution provides.

The Constitution does not contemplate that the

President’s power of veto can be curtailed, or the-

opportunity for deliberation in advance of its ex:

ercise cut short, in such fashion as the contention

of the petitioner would permit.

_ CONCLUSION

- We respectfully submit that the decision of the

court below is correct and that its judgment should

J Srantey REED,

Solicitor General.

4 Salv E. AW HITAKER,

Assistant Attorney General. :

Henry M. Hart, Jr.,

Henry A. JULICHER,

4 Paut A. SwEENEY

Attorneys.

CykiL Q. Marron,

Of Counsel.

“OCTOBER 1937.

, oe

. U.S. COVERNMBENT PRINTING OFFICE: 1937

)

SUPREME COURT OF THE UNITED STATES.

f No. 37.—Ocroper Term, 1937.

. e 7 2

On Writ of Certiorari to

the Court of Claims.

David A. Wright, Petitioner,

. Ss.

The United States.

| [January 17, 1988.]

Mr. Chief Justice Huaues delivered the opinion of the Court.

The question is whether Senate Bill 713, 74th Congress, Ist ses-

sion, which was passed by both Houses of Congress, became a law:

The bill was presented to the President of the United .States on

Friday, April 24, 1936. It had originated in the Seriate. On Mon-

day, May 4, 1936, the Senate took a recess until noon, Thursday,

May 7, 1936. The House of Representatives remained in session.

On May 5, 1936, the President returned the bill with a message

addressed to the Senate setting forth his objections. The bill dnd

message were delivered to the Secretary of the Senate. When the

Senate Feconvened on May 7, 1936, the Secretary advised the Sen<

ate of the return of the bill and the delivery Of the President’s

message. On the same day the President of the Senate laid before ~~

1 This communication was as follows:

**United States~Renate.

Washington, May 7, 1936.

Hon. John N. Garner,

President of the Senate. - ‘

My dear Mr. President: - ,

On Friday, April 24, 1936, the Committee on Fnrolled Bills of the Senate

presented to the President of the United States the enrolled bills (S. 713)

granting jurisdiction of the Court of Claims to hear the case of David A.

Wright, and (S. 929) for the relief of the Southern Products Co., which had

passed both Houses of Congress and been signed by the Speaker of the House

' Of Representatives and tyePresident of the Senate.

The Senate, at 3:25 p. m. Monday, May 4, 1936, took a recess until 12 noon

on Thursday, May 7, 1936. o 7

During the interim the Président of the United States sent by messenger

two messages addressed to the Senate, ach dated May 5, 1936, giving his

reasons for not approving, respéctively, Senfte bill 713 and Senate bill 929.

The Senate not being im session on the last day which the. President had for

the return of these bills under the provisions of the Constitution of Ahe United

States, in order to protect the interests of the Senate, so that it might have

the opportunity to reconsider the bills, T accepted’ the messages, and I now

. present to you the President’s veto messages, with the accompanying papers,

for disposition by the Senate.

Sincerely yours,

; Epwiw A. ‘HAusey,

Seeretary of the Senate’’.

2 Wright vs.” daria States.

it the Secretary’s letter and the message of the. President of the

United States. The message was read and with the bill was re- :

ferred to the Senate Commitee on Claims. No further action was

taken.

The bill sia jurisdiction to the Court of Claims to rehear

and adjudicate - petitioner’s claim against the United States. Ac-

cordingly on September 14, 1936, petitioner presented his petition

to the Court of Claims. The Government opposed the petition upen

the ground that the bill had never become a law and the Court of °

_ Claims denied the petition. In view of the importance of the ques-

tion certiorari was granted. 301 U.S. 681.

The “applicable provisions of the Constitution are found i in Article

I, Section 7, Paragraph 2, whieh provides::

si Every Bill which shall have passed the House of Riewéndntativen

and the Senate, 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 Journal, and proceed to reconsider it. If after such Recon- —

sideration 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. df 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’’. . rere

1. The first question is whether ‘‘the Congress by their shia

ment’’ preverited the return of the bill by the President within, the

period of ten days allowed for that purpose.

“<The Congress” did not adjourn. The Senate alone was in re-

cess. The Constitution creates ‘and defines ‘‘the Congress’’. It

consists ‘‘of a Sendte and House of Representatives’. Art: I, See.

1. The Senate is not ‘‘the Congress’’.

The context of the clause itself points the distinction. © It speaks.

of the ‘‘House of Representatives’’ and of the ‘‘Senate’’, respec-

tively. It speaks of the return of the bill, if the President does not

approve it, “‘to ‘that House in which it shall have originated "’; of

Wright vs. United States. ‘3

reconsideration by ‘‘that House’’, and, in case two thirds of ‘that

House’”’ agree to pass the bill, of sending it together with the Presi-

dent’s objections to the ‘‘other House’’ and, if approved by two

thirds of ‘‘that House”’, the bill is‘to become a law. Provision is

made for the taking of the votes of ‘‘both Houses”? and for the re-

cording of the names of those voting for and against the bill on

the Journal ‘‘of each House respectively’’,)

_ Then, after this precise use of terms and careful differentiation, .

the concluding clause describes not an adjournment of either House

as a Separate Dody, or an adjournment of the House in which the

bill shall have plas but the adjournment of ‘‘the Congress’’, :

It, cannot be supposed that the framers of the Constitution did not

“ this expression with deliberation, or failed to appreciate its

In signifieance. The reference to the Congress is manifestly to

the entire legislative body consisting of both Houses. Nowhere in

__-the Constitution are the Words ‘‘the Congress’’ used to describe a

single House. .

_ To disregard such a deliberate choice of words and their natural

meaning would be a departure from the first principle of constitu:

tional interpretation. ‘‘In expounding the Constitution of the

United States’’, said Chief Justice Taney in Holmes vy. Jennison,

‘14 Pet. 540, 570, 571, ‘‘every word must have its due force, and

appropriate meaning ; for it is evident, from the whole instrument,

that no word was unnecessarily used, or needlessly added. The

many discussions which have taken place upon the construction of

. the Constitution, have proved the correetness of this proposition ;

and shown the high talent, the caution, and the foresight of the

illustrious men who framed it. Every word appears to have been

weighed with the utmost deliberation, and its force and effect to

have been fully understood’’: See, also, Martin v. Hunter’s Lessee,

1 Wheat. 304, 333, 334; Ogden v. Saunders, 12 Wheat. 213, 316;

Myers v. United States, 272 U. S. 52, 151; Walliams v. Umited States, .

289 U. S. 553, 572, 573. ee naps |

The argument addressed tothe word ‘‘their’’ in the phrase ‘‘the

Congress by their adjournment’’, is futile. The. argument is that

the use of the plural would not be unusual or inappropriate if the

reference were to a single House. There is no question that both

Singular and plural forms are used in the Constitution with refer-

ence to each House separately. “See Article I, Section 3, Paragraphs

2, 4, 5, 6; Article I, Section 5, Paragraphs 1, 2, 3. The plural is

‘

”

Body Wright ‘Vs. | United States.

used’in the phrase ‘‘their Journal’’ in the paragraph under con-

sideration. But the question is not whether the use of the plural

is inappropriate in referring to a single House or its members. It

it syfficient to say that there is certainly no inappropriateness in

thé use of the plural in’relation to ‘‘the Congress’’ as composed of

both Houses, and that use in no way changes the significance of that

term. ; aan

The phrasing -of the concluding clause is entirely free from am-

biguity and there is no occasion for construction. .

2. The argument to the contrary rests upon the premise that a

bill cannot be returned by the President to the House in which it

originated when that House during the session of Congress is in

‘recess, and hence that the concluding elause of Paragraph 2 of Sec-

tion 7 of Article I, referring to an adjournment by the Congress,

should be rephrased by judicial construction in order to deal with

that situation. We think that the premise is faulty and the re-

phrasing inadmissible. .

Paragraph 4 of Section 5.of Article I provides :

‘‘Neither House, during the Session of Congress shall, without the

Consent of the other, adjourn for more than three days, nor to any

other Place than that in which the two Houses shall be sitting’’.

It will be observed that this provision is for a short recess by one

House without the consent of the other ‘‘during the Session of Con-

_ gress’. Plainly the taking of such a recess is not an adjournnient

by the ‘Congres. The ‘‘Session of Congress’’ continues.

Here, the recess of the Senate from May 4th to May.7th was dur-

ing the session of Congress and under that provision. In return-

ing the bill-to the Senate by delivery to its Secretary during the re-

cess there was no violation of any express requirement of the Con-

stitution. The Constitution does not define what shall constitute a

return of a bill or deny the use of appropriate agencies in effecting

the return.

Nor was*there any practical difficulty in making the return of

the bill during the recess. The organization of the Senate con-

tinued and was intact. The Secretary of the Senate was function-

ing and was able to receive, and did receive, the bill. Under the

constitutional provision the Senate was required: to reconvene in

not more than three days and thus would be able to act with rea-

sonable promptitude upon the President’s objections. There is no

greater difficulty in returning a bill to one of the two Houses when

* Wright vs. United States. ae

it is in recess during the session of Congress than in presenting a

bill to the President by sending it to the White House in his tem-

porary absence. Such a presentation is familiar practice. The bill

| is sent by a messenger and is received by the President. It is ’re-

turned by a messenger, and why may it-not be received by the ac-

eredited agent of the legislative body? To say that the President

cannot return a bill when the House in which it originated. is in

recess during the session of Congress, and thus afford an. oppor-

tunity for the passing of the bill over the President’s objections,. -

is to ignore the plainest practical considerations and by implying a

requirement of an artificial formality to erect a barrier to the

exercise of a constitutional right.

These practical considerations were well put by Mr. Hatton W.

Sumners ‘in his: argument as amicus curiae on behalf of the Com-

mittee on the Judiciary of the House of Representatives in the

Pocket Veto Case, 279. U. S. 655. He said:

“‘There is no language in the provision governing this passing of

bills between the President and Congress, or any recognized rule

of construction which, while permitting the Congress in the first .

instance to send bills to the President by a messenger, as is done

without question, and the President to receive such bills through

an appropriate agent even when himself absent from his Office ; and. |

the President, though he may be away: from the Capital, at the

time returning the bill by messenger to the Congress, though the

Constitution declares ‘he’, the President, shall return it, which

ft would prevent the House of origin from receiving these same bills

_*: through a proper agent if that House were engaged in other busi-

ness or temporarily absent from their Chambers. It is against all

reason and every recogniz®d rule of constriction, when the avoid-

ance of unnecessary delay is so clearly manifest in the provision

sought to be construed, that a construction should be superimposed

which would make for delay regardless of every desire and of every

effort of the President and of the Congress in the situation indi-

eated’’. ‘

And referring to the provision of the Constitution above quoted

as to adjournments by either House for not-more than three days

during ‘the session of Congress, he said: :

» . _ “Tn ‘such a situation what is to occur? Is the bill to become a

; -—law despite the objections of the President? The Congress has not

' adjourned, and yet the President cannot make return of the bill

to the House of its origin in session because it is not in session.

Is the bill to die with the Congress in existence, possibly the House

of origin only having adjourned earlier than usual on the last day

=. Wright vs. Umted States.

permitted for the return of.the bill? Is there no rational construc-

tion: of the Constitution possible which will make effective all ‘the

safeguards with regard to legislation established in the Consti-

tution, and yet make operative under every circumstance, the gen-

eral plan set up by the Constitution?’’. —-

And, again, with respect to the agencies of the Houses of Con-

gress, Mr. Sumners observed that ‘‘The Houses of Congress have

officers and agents of great power and responsibility who act in

their stead, and who are constantly in their places wherthe Houses

are in session, and when they are not in session’. He found

' “nothing in the Constitution which denies the right to the use of

these agents in effecting the return of objected-to bills”. He added

that ;

‘Ca rule of construction or of official action whieh ‘would require

in every instance the persons who constitute the Houses of Con-

gress to be in formal session in order to receive bills from the Presi-

dent would also require the person who is President personally to

return such bills. . *

‘‘The right of constructive ‘delivery is 3 necessarily not only. to

. facilitate legislative procedure, prevent delay, and to hold the

President’s powers within the limits imposed by the Constitution,

but it is also necessary in order to hold the Congress within proper

bounds by preventing bills to which the President may object from

becoming law without reconsideration by the Congress.

‘“‘The adjournment of a House for not more than three days,

without the consent of the other House is not an adjournment of .

Congress.

_ “Tf the Senate should be in executive session, on a matter of the

highest public importance, refusing to be interrupted, on the last

day of the period in which return maybe made, that would not

even be an adjournment of one House of the Congress; and yet

return could not be made if constructive delivery is not permitted.

‘‘TIt could not be held that Congress was adjourned when the

Senate was in executive session performing its constitutional duty,

and the other House in acthal session. The sensible thing to do in

such a case, would be for the messenger of the President, finding

himself unable to make delivery to the Senate, to make the deliv-

ery to the Secretary of the Senate. There is nothing in the Con-

stitution to prohibit that being done’’

The absence of any practical aise to the return of a bill when

a House is in temporary recess during the session of the Congress

is illustrated by what was done in this instance The Senate was in

recess from May 4th to noon of May 7th. The President’s time

for consideration expired on May 6th. He delivered the bill with

his objections to the Secretary of the Senate on May 5th. The

. Wright vs. United States. 7

Secretary presented the bill with the Presidext’s objections to the

President of the Senate on May 7th and on that day the bill and

the objections were laid before the Senate and were referred to

the appropriate committeee. The fact that Mr. Sumners’ conten- —

tion in the ‘Pocket Veto Case was unavailing with respect to the

effect of an adjournment of the Congress at the close of its first

regular Session, in no way detracts from the pertinence and cogency

of these observations as addressed to the situation which is now

presented: |

3. The chief, if not the sole, reliance for the argument that the.

bill could not be returned by the President. during the Senate’s

recess is our decision in the Pocket Veto Case, supra. We do not

regard that decision as applicable for two reasons: (1) the present

question was not involved, and (2) the reasoning ‘of. the decision

is inapposite to the circumstances of this case.

In the Pocket Veto Case, the ‘Congress had adjourned. The

question was whether the concluding clause of Paragraph 2 of

Section 7 of Article I was limited to a final adjournment of the

Congress or embraced an adjournment of the Congress at the close.

of the first regular session. The Court held that the clause was

not so limited and applied to the latter: -:Ip interpreting the word

“‘adjournment’’, and in referring to’ other provisions of the Con-

stitution using the word ‘“‘adjourn’’, the Court was’ still address-

ing itself to a case where there had been -an adjournment by. the

Congress. The Court did not decide, and there ‘was nO occasion

for ruling, that the clause applies where the Congress has not ad-

journed and a temporary recess has been taken by one House during

the session of Congress. Any observations which could be regarded

as having a bearirig upon the question now before us would be

taken out of their proper relation. The oft-repeated admonition

of Chief Justice Marshall ‘‘that general expressions, in every -

opinion, are to be taken in connection with the case in which those

expressions are used’’, and that if they go ‘‘beyond the case, they

may be respected, but ought not to control the judgment in a sub-

sequent suit when the very point is presented for decision’’, has

special force in this instance. Cohens v. ‘Virginia, 6 Wheat. .264,

399. er yee ee)

In the Pocket Veto Case the Court expressed the view that the”

House to which the bill is to be returned “‘is the House in session’’,

and that no return can be made to the House when it is not in

. | Wright vs. United States.

session as a collective body and its members are dispersed. But

that expression should not be construed so narrowly as to demand

’ that the President must select a precise moment when the House

is within the walls of its Chambers and that a return is absolutely

impossible during a recess however temporary. Such a conclusion.

as we shall presently endeavor to show, would frustrate the funda-

mental purposes of the constitutional provision as to action upon

bills. The Court in the Pocket Veto Case was impressed with the

impropriety of a delivery of the bill by the President during a period

of adjournment ‘‘to some individual officer or agent not authorized

to make any legislative récord of its delivery, who should hold it in

his own hands for days, weeks or perhaps months,—not only leav-

ing open possible questions as to the day on which it had been

delivered to him, or whether it had .in fact been delivered to him

at all, but keeping the bill in the meantime in a state of suspended

animation until the House resumes its sittings, with no certain

knowtedge on the part of the public as to whether it had or had

not been seasonably delivered, and necessarily causing delay in its

reconsideration which the Constitation evidently intended to

avoid’’. ‘‘In short’’, said the Court, ‘‘it was plainly the object

of the constitutional provision that there should be a timely return

of the bill, which should not only be a matter of official ‘record

definitely shown on the journal of the House itself, giving public,

certain and prompt knowledge as to the status of the bill, but

should enable Congress to proceed immediately with its reconsid-

eration; and that the return of the bill should be an actual and

public return to the House itself, not a fictitious return by a de-

livery of the bill to some individual which’ could be given a retro-

active effect at a later date when the time for the return to the

House had expired’’. Id., pp. 684, 685.

” ‘These statements show clearly the sort of dangers which the Court

envisaged. However real these dangers may be when Congress

has adjourned and the members of its Houses have dispersed at

the end of a session—the situation with which the Court was deal-

ing—they appear to be illusory. when there is a mere temporary

recess. Each House for its convenience, and during its session and

the session of Congress, may take, and-frequently does take, a brief

recess limited, as we have seen, in the absence of the consent of -

the other House, to'a period of three days. In such case there is

no withholding of the bill from appropriate legislative récord for -

weeks or perhaps months, no keeping of the bill in a state of sus-

pended animation with no certain knowledge on the part of the

public whether it was seasonably delivered, no causing of any

undue delay in its reconsideration. When there is nothing but

such a temporary recess the organization of the Hotise and its

appropriate officers continue to function without interruption, the

bill is properly safeguarded for a very limited time and is

promptly reported’ and may be reconsidered immediately after

_ the short recess is over. The prospect that in such a case the public

~ may not be promptly and properly informed of the return of the

bill with the President’s objections, or that the bill will not be

properly safeguarded or duly recorded upon the journal of the

House, of that it will not be subject to reasonably prompt action’

by the House, is we think wholly chimerical. If we regard the

manifest realities of the situation, we cannot fail to see that a brief

recess by one House, such as is permitted by the Constitution

without the consent of the other House, during the session of Con-

gress, does not constitute such an interruption of the session of

the House as to give rise to the dangers which, as the Court appre-

hended, might develop after the Congress has adjourned.

4. The constitutional provisions have two fundamental purposes;

(1) that the President shall have suitable opportunity to consider

the bills presented to him, and (2) that the Congress shall have

suitable opportunity to consider his objections to bills and on such

consideration to pass them over his veto provided there are the

requisite. votes. Edwards v. United States, 286 U. S. 482,486. We

' should not adopt a construction which would frustrate either of

these purposes.

As to the President’s opportunity for consideration, we have

held that he may still approve bills and that they will become laws, .

if he acts within the time allotted for that purpose, although Con-

gress meanwhile has adjourned. La Abra Silver Mining Co. v.

United States, 175 U: S. 423; Edwards v. United States, supra. It

is to safeguard the President’s opportunity that Paragraph 2 of

Section 7 of Article I provides that bills which he does not approve

shall not become laws if the adjournment of the Congress prevents

_ their return. Edwards v. United States, supra.

Where the President does not approve a bill, the plan of the

Constitution is to give to the Congress the opportunity to consider

10 _ Wright vs. United States.

his objections and to pass the bill despite his disapproval. It is

for this purpose that the time limit for return is fixed. This op-

portunity is as important as that of the President. But if the re-

— turn of a bill is impossible dufring a temporary recess of a House

while Congress is in session, either the President may be obliged to

cut short the time for’ his consideration so as to be sure to get his

objections before the House while it is within the walls of its Cham-

bers, or, if the President takes the allotted time and attempts to

return the bill during the recess, his objections will either be un-

availing or the Cotigress will be denied opportunity to pass upon

them. If, as we think, the concluding words of Paragraph 2 of -

Section 7 are inapplicable then, as Congress has not adjourned, the

President’s disapproval. Or, if that clause were deemed ap-

plicable and the return of the bill be considered to have been pre-

vented by the recess, the bill would not become a law and Congress,

although in session, would not be able to pass the bill over the eee:

- ident’s objections.

The extremely technical chaecter of the argument which would

make impossible the return of a. bill because a House has taken a

temporary recess is manifest. Suppose the President, who is clearly

_ entitled to his ten days for consideration, sends the bill to the House

in which it originated with his objections on the afternoon of the

the following morning. Then, on the argument now advanced as

to the construction of the concluding clause of Paragraph 2 of Sec-

tion 7, the bill would not become a law and the objections of the

Pregident would operate practically as an absolute veto although

the Congress: was in session and ready to consider his objections.

Or if that result does not follow, in the view that the clause does

not apply because Congress has not adjourned, then, if the bill is

not regarded as returned, it becomes a law although the President

‘pill, if not deemed to have been returned, will become a law despite |

‘tenth day, but that House has adjourned at noon on that day until —

has shown his disapproval within the ten days. These difficulties.

disappear if we dispense with wholly unnecessary technicalities as

to the- method of return and give effect to realities.

. We agree with the Government that the precedents of enseative

: atten which have been cited are not persuasive. The question now

raised has not been the subject of judicial decision and must be

resolved not by past uncertainties, assumptions or arguments, but

by the application of the controlling principles of constitutional

interpretation.

Wright vs. United States. 11

* We are not impressed by the argument that while a recess of

one House is limited to three days without the consent of the other -

House, cases may arise in which the other House consents to an

adjournment and a long period of adjournment may result. We

have no such case before us and we are not called upon to conjecture

as, to the nature of the action which might be taken“by the Con-

'- gress in such a case or what would be its effect. 4

We hold that where the Congress has not adjourned and the

House in which the bill originated is in recess for not more than

three days under the constitutional permission while Congress is in

Session, the bill does not become a law if the President has de-

_- livered the bill-with his objections to the appropriate officer of the

- House within the prescribed ten days and the Congress does not

pass the bill over his objections by the requisite votes. In this in-

stance the bill was properly returned by the President, it was open

to reconsideration in Congress, and it did not become a law. :

_ The judgment is ; A,

Affirmed.

Mr. Justice Carpozo took no part in the decision of this case.

A true copy.

Test :

Clerk, Supreme Court, U. 8.

SUPREME COURT OF THE UNITED $TATES.

No. 37.—Octoser Term, 1937.

On Writ of Certiorari to

David A. Wright, Petitioner,

vs.

The United States. the Court of Claims.

[January 17, 1938.]

Mr. Justice STONE.

’ I agree that the legislation now in question did not become a

law, not, as the Court holds, because the bill vetoed by the Presi-

dent was returned to the Senate within the ten-day period or to |

any person authorized to receive the bill in its behalf, but because

the Senate by its adjournment prevented the return and thus called

into operation the provision that the bill ‘‘shall not. be a Law”’

where adjournment prevents its return to the -house in which it

originated, within the ten days allowed to the President to sign

or disapprove it.” \y

The gresons assigned by the Court for its conclusion seem to

-me to have no application to. the case now before us, and leave

in confusion and doubt the meaning and effect of the veto provi-

sions of the Constitution, the certainty of whose application is of

supreme importance. - :

Notwithstanding the cogently reasoned ruling of a unanimous —

court in The Pocket Veto Case, 279 U. S. 655, 682, that the

1 Article I, § 7, Cl. 2, of the Constitution reads 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 whith it shall have originated, who

shall enter the Objections at large on their Journal, and proceed to reconsider

it. If after such Reconsideration two thirds of that House shall agree to pass

the Bill, it shall be sent, together with the Objections, to the other House, by

which it shall likewise be reconsidered, and if approved by two thirds of that

House, it shall become a Law. But in all such 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 re-

ively. If any Bill shall not be returned by the President within ten

Days (Sundays excepted) after it shall have pone ogee to him, the Same

shall be a Law, in like Manner as if he had sign it, unless the Congress by

their Adjournment prevent its Return, in which Case it shall not be a Law.’’

(

° | \

Wright vs. United States. - 2

“‘House’’ to which a bill is to be returned by the President means

a house in session, we may assume. for present purposes that

each house of Congress, by appropriate action, may constitution-

ally confer upon its secretary, clerk, or some other officer, authority

to receive a/bill returned to it by the Président. But it does not

appear that any such authority has ever been conferred. on the

secretary of the Senate, or that he has hitherto assumed to act in

ity. In The Pocket.Veto Case this Court held that in

1926 it had not; and the Senate has since taken no step in that

direction, perhaps because of our dictum: %ii that case that such

action would be unconstitutional. fi

The houses of Congress, being collective bodies, transacting their

routine business by majorit- action, are capable of acting only

when in session and by formal action recorded in their respective

journals, or by recognition, through such action, of an established

practice. Since the foundation of the government it has been the

‘Settled usage of both houses of Congress to receivé messages from

the President and bills disapproved and returned by him, when in

session. It does not appear that in the ‘past the secretary of the

Senate or any other person has assumed to act for either house in

receiving a bill returned by the President, and in one recorded in-

stance the secretary of the Senate and its President declined so to

act.* There has been no action and no usage of either house recog-

nizing the existence of such authority in any one. The Pocket Veto

Case, supra, 682 et seq. 7

‘ The.seeretary of the Senate is appointed by that body to serve

. at its pleasure, and his duties are prescribed by the Senate rules.

They give no hint that among these duties is the important fune-

tion of acting as the Senate in the receipt of bills returned to it by

the President during the ten-day period, or retaining them in cus-

tody pending its reassembly when the return is during an adjourn-

ment. Not onty have both houses of Congress failed to designate

any person to receive bills returned to thém by the President, but

3 : Wright vs. United States.

in one instance they explicitly refused to take such action when it

-was proposed.*

The conclusion seems inescapable that aloes ‘constitutional

power the Sgnate and House may possess to designate an officer to

receive in their behalf bills returned by thePresident, they have not.

exercised it; the Constitution, which directs that bills shall be re-

turned to the house in which they originate, has made no such

designation, and neither the Constitution nor any statiite, rule or

‘usage has indicated any person who could so act, or prescribed

for any one duties embracing such a function.

In such circumstances delivery of a bill to the secretary of the

Senate during its adjournment would seem to be no more a com-

pliance with the constitutional requirement than would its deposit

by the President’s messenger with the sergeant-at-arms, a door-

keeper, or anyother person not clothed with authotity or charged

with official duty in the premises, who might be induced to receive

the bill and onder the to bring it to the attention of the Senate

upon reassembly.*

Doubts asto the scape and effect of the rule now edinndiin’ by

the Court are multiplied -by ‘the intimation that a different rule

may be applied in the ease of adjournment of either house of Con-

gress, with the consent of the other, for more than three days, and

that the present decision can, in some way’ not: disclosed,. be dis-

tinghished from our ruling in The Pocket Veto Case, where the re-

turn of ‘a bill to the Senate was held to have been prevented by

the adjournment of the Senate, purstiant to concurrent resolution,

from July 3rd to November 10th, the House having at the same

time adjourned sine die. But such an intimation can rest on

nothing more substantial than our unwillingness to face the obvious

consequences of what is now decided. If it be said that an essen-

3 In 1868 a bill reported by the Senate Judiciary Committee and passed by

majority vote of the Sendte, provided for a return of a bill to: a house not

sitting by delivery of it at the office of t the secretary of the Senate or of the

clerk of the House, as the case might be. Strong opposition to the bill devel-

oped in Senate debate, the bill was not reported out of the Judiciary Com-

mittee of the House, and failed of passage. ‘The- Pocket Veto Case, —

686 et seq.

4The fact that the Senate has taken pains to. oisin express authority. in

some instances, by formal resolution, Gilfry, Precedents, 226,. 462, by. rule,

Senate Manual, 1936, 5, 8, 12, 36, or by standing order, id. ‘at 128 et seq.,

persuades that "the important power to receive a bill would not be conferred

sub silentio.

PLETED

SN TRL ae INI GR Ae EEE OR,

Wright vs. United States. 4

tial difference between the present case and The Pocket Veto Case

lies in the fact that here the President delivered the bill with: his

veto message to the secretary of the Senate, and that there he re-

tained it’ without Signing, then the rule whieh is now announced

will, for all practical purposes, expire with its birth. We can

hardly assume that a President would invite further Congressional

action by a return of a bill with his veto to a secretary or other

officer of the house concerned, during its adjournment, if by reten-

tion of the bill without signing, he could make the veto absolute.

Again, if it be said that a distinction is to be drawn between ad-

journment of one house for three days and longer adjournments

taken with the concurrenee of the other house, no plausible reason

ean be advanced for Saying that the ‘secretary or any other officer

of the Senate possesses authority to receive returned bills during a

thrée-day adjournment which he does not possess during a four-day

or longer. adjourriment during a session of Congress. In.The Pocket

Veto Case the Senate adjourned during a session of Congress for

four months, the House consenting, but the ten days allowed for

consideration of the bill by the President expired the day after ad-

journment. If the decision in that’ case is to stand with this it can |

only be because the secretary in the former lost on the day after

adjournment an authority which he retained for a day after ad- *

journment in the latter. If lost, it was either because the adjourn-

ment was for longer than three days and was thus one which could

‘not be effected without a concurrent resolution, or because the other

house had not remained in session. _ Such distinetions find as little

support in Constitution, laws and Congressional practice, and in

reason, 4s does the proposition that the secretary of the Senate is,

by virtue of his appointment as such, clothed with authority. to

receive in its behalf bills returned by the President.

If in The Pocket Veto Case the secretary of the Senate, - where

the bill originated, had authority after adjournment during the

Session, to receive it in behalf of the Senate, the adjournment did

not prevent the return by the President, and the bill, upon his

failure to sign or return it, became law by virtue of the constitu-

tional: provision just as Wid some 173 other bills which, until this

moment, have been regarded as dead letters, as they were declared

5 Wright vs. Umted States.

to be in The Pocket Veto Case, supra, 691.5 Ifthe Court was wrong

on that point, its decision was wrong, and in the interests of a

definite and precise constitutional procedure in a field where defi-

niteness and precision are of paramount importance, it should now

be frankly everruled. ‘ o

If I am wrong in my conclusion that the President did not in

this case ‘return the bill to the Senate by returning it to its sec-

retary during adjournment, then adjournment did not prevent its

return, the President’s veto became effective, and there is no occa-

sion for the Court to indulge in an academic: discussion of what

may in other circumstances be the effect of an adjournment alone

of the house in which a bjll originates, which actually prevents such

areturn. The pronouncement-now made that the President may be

so deprived of the veto power ought to be avoided not only because,

in my opinion, it is an erroneous interpretation of the Constitution

which may have grave consequences, hut because it is unnecessary

to the decision. If the experience of one hundred and fifty years of

constitutional interpretation has taught any lesson, it is the unwis-

dom of making solemn declarations as to the meaning of that in-

strument which are unnecessary to decision. They can serve no

useful purpose and their only effect may be to embarrass the Court

when decision becomes necessary. O’Donoghue v. United States,

289 U. S. 516, 550; Humphrey’s Executor v. United States, 295

_U. 8. 602, 626-627. The declaration now made, for the first time,

5 A memorandum prepared in thé office of the Attorney General and traris-

mitted by the President to Congress in 1927, H. Doe. No. 493, 70th Cong., 2d

Sess., cites more than 400 bills and resolutions which were passed by Congress

and submitted to the President less than ten days before final or interim ad-

journment of Congress, which were not signed by the President or returned

with his disapproval. Of these, 119 were instances in which the adjournment

was for a session of Congress as distinguished from its final adjournment.

None of these bills or resolutions were placed upon the statute books or

treated as having become a law. No attempt appears to have keen made to

enforce them in the courts, except the law involved in The Pocket Veto Case.

It does not appear that in any of these instances either house of Congress has

. taken any official action indicating that in its judgment any of these bills

became laws. See The Pocket Veto Case, supra, 690, 691. Examination of the

House Calendars shows that in the period since that covered by the Attorney

_ General’s memorandum, 54 bills have been pocketed before the end of a Con-

gress with no attempt to return them. This was done- twice in the Seventy-

first Congress, once in the Seventy-second Congress, twenty-eight times in the

Seventy-fourth Congress, and ‘twenty-three times in the First Session of the

Seventy-fifth Congress. See also Veto Messages: Record of Bills Vetoed

and Action Taken Thereon by the Senate and House of Representatives, Fifty-

first Congress to Seventy-fourth Congress, Inclusive, 1889-1936, compiled under

the direction of Edwin A. Halsey, Secretary of the Senate (1936).

AOI ES TE ne

ee 0 Se

Wright vs. United States. = - 6

that the Constitution has left an undefined area in which the veto

power cannot be exercised, is the more unfortunate since, in the

circumstances, it seems almost certain that the Court will be called

upon to reexamine it.

If, on the other hand, I am ties in my view that the President -

was here prevented from returning the bill, we are brought un-

avoidably to the decision of the question presented by the petition

for certiorari and -ued at the Bar as the controlling question,

whether the President is deprived of the veto power whenever

return of a bill within the prescribed tén days is. prevented by the

adjournment alone of the house in which ‘the bill originated.

The framers, in seeking to establish and preserve the presidential

veto, were aware that the originating house, unlike the President .

who is without incentive to avoid receipt of a bill which he is free

to veto, might have the strongest motives to avoid the veto of a bill,

- if that were possible, by preventing its return or by challenging

the fact of its return. They accordingly took eare to provide for

the return of a bill to the originating house by an act. of public no-

toriety—its delivery to the house in session; and recognizing that

return might be prevented by adjournment, they declared that in

that.case it should not become a law.

The possibility that a return may be prevented by the sdjourn-

ment of a single house during a session of Congress is not re-

moved by deciding that a secretary or some other officer ‘of the

originating house may receive a returned bill during the period

of a three-day adjournment.- Either house may and does on oc-

.casion adjourn for longer periods, with the consent of the other.®

An. adjournment coincident with death or absence of the officer may .

prevent the return. Whatever authority in the premises the Senate

or the House may give to its officer, it may withhold or withdraw.

If the dictum now pronounced correctly states the fundamental law,

the originating house may shorten the period for the exercise of the

veto power or thwart it altogether by the simple expedient of ad-

journment after withdrawing the supposed authority of any officer

to receive the vetoed bill.

This Court has emphasized, as does the language of the a

tution, the great importance of the veto. power and the dominating

purpose expressed in the constitutional provision that the power shall

6 Cannon, Precedents, Vol. 8, p. 816.

7 “Wright vs. United States.

not be curtailed or the ten days, allowed for its exercise, shortened.

Edwards v. Umted States, 286 U. 8. 482, 486, 493-494; The Pocket

Veto Case, supra, p. 678. The words make it certain that the only

adjournment which can prevent return of a bill-by the President is

that of the house in which the bill originates and to which, if vetoed,

it is to be returned. Continuance in session of the other house does

not facilitate return. No more can its adjournment-obstruct return.

Adjournment by the originating house can alone have the conse-

quence to be guarded against, prevention of return. Hence, it was .

adjournment of the originating house with which the framers were

concerned. There is no reason of which we are aware, and none

has been suggested, for supposing that in creating and protecting

the veto power they regarded the adjournment vel non of the non-

originating house as of any consequence, or that they had any

thought of leaving the President stripped of the veto power, either

-by chance or by design, whenever the originating house adjourned

‘without the other. The men who creatéd the framework of our

government are. not lightly to be charged with such an omission.

The charge now made finds its only support in. a punctilio of

grammar. ;

nee we must never forget, that it is a constitution we‘are ~

expounding.’’ McCulloch v. Maryland, 4 Wheat. 316, 407. Its pro-

. visions are not to be interpreted like those of a municipal code or

of a penal statute, though even the latter is to be read so as not to

defeat its obvious purpose, United States v. Raynor, Nos. 146, 147,

decided January 3, 1938, or lead to absurd consequences, United

States v. Katz, 271 U. S. 354, 362. In defining their scope some-

thing more is involved than consultation of the: . dictionary and the

rules of English grammar. They are to be read as a vital part

of an organic whole so that the high purpose which illumines every

sentence and phrase of the instrument may be given effect in a

consistent and harmonious framework of government.

The Court has hitherto consistently held that a literal read-

ing of a provision of the Constitution which defeats a purpose evi-

dent when the instrument is read as a whole, is not to be favored.

'.? The phrase ‘‘due process’’ in the Fifth and Fourteenth Amend-

ments has long since been expanded beyond its literal meaning of

due procedure. See Davidson v. New Orleans, 96 U. S. 97; ef.

Brandeis, J., concurring in Whitney v. California, 274 U. S. 357,

I ee FFE TET eS RIE

Wright vs. United States. - 8

373. The term ‘‘contract’’ in the contract clause is not confined

literally to the contracts of the law dictionary. Dartmouth College

v. Woodward, 4 Wheat. 518. The prohibition against their impair-

ment has never been taken to be inexorable. Home Building &

Loan Ass’n v. Blaisdell, 290 U. S. 398, and cases cited at 430 et seq.

The injunction that no person ‘‘shall be compelled in any Criminal

Case to be a witness against himself’? is not literally applied.

Brown v. Walker, 161 U.S. 591, 595. ‘From whatever source de-

rived’’, as it is written in the Sixteenth Amendment, does not mean

from whatever source derived. Evans v. Gore, 253 U. S. 245. See,

also, Robertson v. Baldwin, 165 U. S. 275, 281, 282; Gompers v. _

United States, 233 U. S. 604, 610; Bain Peanut Co. v.. Pinsov, 282

U. S. 499, 501; United States v. Lefkowitz, 285 U. 8. 452, 467.

But here, regardless of the constitutional purpose and the larger

considerations which have usually guided our interpretation of the

Constitution-as an instrument of government, it is insisted that the

phrase ‘‘unless the Congress by their Adjournment prevent its

Return’’ cannot be taken to include the adjournment alone of the -

Single house whose adjournment is in every case the only effective

means of preventing a return. It is said that the word “ Congress’? »

used to describe the body whose adjournment occasions the pocket

veto, followed as it is by the plural possessive pronoun “‘their’’,

can refer only to the two houses comprised in ‘‘the Congress’’ and

hence cannot refer to adjournment’ of a single house. This sub-

ordination of the framers’ main objective to a meticulously gram-

matical interpretation of their words is unwarranted. It would

hardly be suggested that the command, “‘Each House shall keep a

‘Journal of its Proceedings, and from time to time publish the same,

excepting such Parts as may in their Judgment require Secrecy’’,

(Art. I, § 5, el. 3) calls for the concurrence of the judgment of all

the members of a house, in order to ban publication of a journal:

“their J udgment’’ is obviously that of the controlling part of the

membership—that part whose opinion, under applicable rules of

congressional procedure, is decisive of the question. A similar’

analysis based on the purpose and context of the clause now before

us demands recognition that the draftsmen were concerned with the

: “adjournment only of that part of the Congress to which return was

to be made and whose absenée would thus prevent return of a bill by

the President. In the light of these dominant facts it seems plain

9: Wright vs. United States.

that in using the words ‘‘their Adjournment’’ the framers referred

to any action taken by the members of Congress of either house or

both houses, which was effective to prevent return of a bill by the

President to the originating house. The very force of the circum-

stances to which the words are applied gives emphasis to ‘‘Ad-

journment’’ as that which prevents return, and to ‘‘their’’ as re-

ferring to the action of those members of Congress which effects

the adjournment: This usage parallels that in the clause requiring

the publication of the journals of both houses _ excepting such Parts

as may in their Judgment require Secrecy.’’ In both instances

the significant action, adjournment or the exercise of judgment as

the case may be, is that of those members whose action is effective

to accomplish the contemplated result—there, prohibition of publi-

eation; here, prevention of return to the originating house. Thus

read, no word is without appropriate meaning and the clause is

consistent both with the obvious purpose and with the grammatical

usage appearing elsewhere in the Constitution.

I cannot ignore that purpose and say that for no discernible rea--

son other than our present-day notions of grammatical construction

we are compelled to read the words as excluding from the operation

of the clauses designed to protect the veto power, every case where

the return of a bill is prevented by adjournment of a single house.

Mr. Justice BRANDEIS concurs in this opinion.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.