U.S. Supreme Court WRIGHT v. UNITED STATES, 302 U.S. 583 (1938)

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

The question is whether Senate Bill 713, 74th Congress, 1st session, 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 Senate. On Monday, 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 and message were delivered to the Secretary of the Senate. When the Senate reconvened on May 7, 1936, the Secretary advised the Senate of the return of the bill and the delivery of the President's message. [Footnote 1] On the same day

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the Senate has since taken no step in that direction, perhaps because of our dictum in that case that such action would be unconstitutional.

The Houses of Congress, being collective bodies, transacting their routine business by majority 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 receive 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 instance the Secretary of the Senate and its President declined so to act. [Footnote 2] There has been no action and no usage of either House recognizing the existence of such authority in any one. The Pocket Veto Case, Supra, , 682 et seq., 49 S.Ct. 463, 467, 64 A.L.R. 1434.

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the President, but in one instance they explicitly refused to take such action when it was proposed. [Footnote 3]

The conclusion seems inescapable that whatever constitutional power the Senate and House may possess to designate an officer to receive in their behalf bills returned by the President, they have not exercised it; the Constitution, which directs that bills shall be returned to the House in which they originate, has made no such designation, and neither the Constitution nor any statute, 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 compliance with the constitutional requirement then would its deposit by the President's messenger with the sergeant at arms, a door-keeper, or any other person not clothed with authority or charged with official duty in the premises, who might be induced to receive the bill and undertake to bring it to the attention of the Senate upon reassembly. [Footnote 4]

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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 right in my view that the President was here prevented from returning the bill, we are brought unavoidably to the decision of the question presented by the petition for certiorari and argued at the bar as the controlling question, whether the President is deprived of the veto power whenever return of a bill within the prescribed ten 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 care to provide for the return of a bill to the originating House by an act of public notoriety-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 adjournment of a single House during a session of Congress is not removed 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 occasion adjourn for longer periods, with the consent of the other. [Footnote 6] 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

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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 publication; 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 reason 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. Footnotes

Footnote 1 This communication was as follows:'United States Senate,'Washington, May 7, 1936.'Hon. John N. Garner,'President of the Senate.'My dear Mr. President:'On Friday, April 24, 1936, the Committee on Enrolled 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 the President 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.'During the interim the President of the United States sent by messenger two messages addressed to the Senate, each dated May 5, 1936, giving his reasons for not approving, respectively, Senate bill 713 and Senate bill 929. The Senate not being in session on the last day which the President had for the return of these bills under the provisions of the Constitution of the United States, in order to protect the interests of the Senate, so that it might have the opportunity to reconsider the bills, I 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, Edwin A. Halsey,

Secretary of the Senate.'

[Footnote 1] Article 1, 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 which 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 Cases the Votes of both Houses shall be determined by Yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.'

Footnote 2 On May 19, 1888, President Cleveland attempted to return a bill to the Senate during an adjournment, by tendering it to the Secretary and to the President of the Senate. Both officers rejected the tender, 'claiming that the return of said bill and the delivery of said message could only properly be made to the Senate when in actual session.' President Cleveland's message, Senate Journal, 50th Cong., 1st Sess.

Footnote 3 In 1868 a bill reported by the Senate Judiciary Committee and passed by majority vote of the Senate, provided for a return of a bill to a House not sitting by delivery of it at the office of the Secretary of the Senate or of the Clerk of the House, as the case might be. Strong opposition to the bill developed in Senate debate, the bill was not reported out of the Judiciary Committee of the House, and failed of passage. The Pocket Veto Case, supra, 279 U.S. 686 et seq., 49 S.Ct. 468.

Footnote 4 The fact that the Senate has taken pains to confer 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.

Footnote 5 A memorandum prepared in the office of the Attorney General and transmitted by the President to Congress in 1927, H.Doc. 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 adjournment 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 been 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, 279 U.S. 655, 690, 691 S., 49 S.Ct. 463, 470, 64 A.L.R. 1434. 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 Congress 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).

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