Pocket Veto Case

Whenever a new law is passed by both houses of the U.S. Congress, the proposed statute is passed to the president, who has the option of approving the law by signing it or rejecting it with a veto. A vetoed bill is normally returned to Congress with the president's objections noted so that Congress can reconsider the bill. If the president neither signs nor vetoes the bill within ten days, not counting Sundays, the measure automatically becomes law.

If Congress passes the measure and then adjourns, however, leaving the president less than the required ten days to consider the bill, the president may ignore the bill. Under such circumstances, the lack of a presidential signature prevents the bill from becoming law. This is called a pocket veto.

Presidents, beginning with James Madison, used the pocket veto to reject legislation handed to them at the close of congressional terms. Yet the constitutionality of the pocket veto was not tested in the Supreme Court until 1929, in a case which pitted the legislative and executive branches of the government against each other.

In 1926, Congress passed a bill allowing a group of American Indian tribes from the state of Washington to present a bill to the court of claims for the loss of tribal lands. The bill was signed by the 69th Congress and presented to President Calvin Coolidge on 24 June 1926. When Congress adjourned on 3 July, President Coolidge had still not signed the bill. If Congress had not gone home for the summer, it could have expected the bill back by 6 July, a date which passed with no word from the White House.

When the Okanogan Indians and other tribes presented their suit to the court of claims, they assumed that ten working days of Congress had passed, automatically making their bill law even without Coolidge's signature. The court of claims, however, dismissed the Indians suit, ruling that the congressional bill upon which their claims were based had been "pocket-vetoed" and was therefore invalid.

The Washington tribes were not the only ones outraged. A 1925 congressional resolution providing for a federal takeover of the Muscle Shoals power station in Alabama had also been placed on the president's desk. It too lacked a presidential signature. Congressional supporters of the Indian relief bill--along with those who had voted for the Muscle Shoals resolution--were pitted against the White House. The Washington tribes appealed the court of claims' decision to the Supreme Court, which accepted the case to rule on the collision between the legislative and executive branches of the government.

When the case was heard on 11 March 1929, U.S. Attorney General William D. Mitchell argued the case for the executive branch, proposing that the court of claims' judgment should stand. Mitchell noted that 119 important cases had been decided by pocket vetoes in the past century. To suddenly declare that the practice was invalid would create havoc within the legislative process, opening the way for retroactive legal challenges. The so-called pocket vetoes, Mitchell argued, were an accepted method of disposing of legislation a president might otherwise formally veto.

The Indians' attorney, William S. Lewis, responded that the bill had been properly forwarded to President Coolidge for his signature. Lewis argued that Congress had merely gone home for the summer recess and had not adjourned. When the required ten days passed without the president signing the bill or returning it with a veto and enumerating his objections, the bill had automatically become law. To this, Attorney General Mitchell replied that there was no way to return a bill to a body that was not in session. Ten days, by Mitchell's definition, meant ten calendar days.

Attorney Lewis was joined by Texas Representative Hatton W. Sumners, the senior member of the House of Representatives Judiciary Committee. Sumners appeared before the Supreme Court with an amicus curiae or "friend of the court" brief supporting the Okanogan position. Congressman Sumners argued that the pocket veto gave presidents powers not granted by the Constitution. These included an absolute veto, eliminating any opportunity to overcome presidential rejection of legislation with a vote by two-thirds of Congress. A pocket veto also sidestepped a president's responsibility to explain executive objections to a bill.