CHAPTER V. CONSTITUTIONAL PROCEDURE AS TO VETOES. $99. The action of the President. -§ 100. Is the exercise of the veto a legislative power? § 101. Constitutionality of pocket vetoes. The legal ten days. § 102. May a bill be vetoed without stating reasons? § 103. May a bill be signed after the adjournment of Congress? § 104. May a President refuse to carry out an act? § 105. The President's right of protest. § 106. Is the signature of the President essential to constitutional § 107. The action of Congress. § 108. Has the Executive a right to recall a veto? § 109. What is a two-thirds majority? § 110. Has the Speaker a right to vote on reconsideration? § III. Second reconsideration of a veto. § 112. Failure to enter the veto message in the journal. § 114. Comparative unimportance of constitutional details. § 99. The action of the President. The veto power has been in operation in the government of the United States for more than a hundred years; and in that time many interesting questions of procedure as to the acceptance and disallowance of bills have arisen and have been settled. In the present chapter the more important of these questions will be discussed. For convenience those questions which have arisen in regard to procedure between the time when the President receives the bill and the time when he returns it to Congress with his objections have been grouped together;1 while those questions which relate to procedure after Congress has received the message, are placed in a separate group. After the passage of bills they are enrolled, formally engrossed and compared, signed by the speaker of the House and the President of the Senate, and finally presented to the President of the United States by the committee on enrolled bills of that branch of Congress in which the bill originated.2 1 For the practice in the States, see Appendix E, Nos. 1-10. 2 McDonald, Manual of the Senate (1886), 262. The § 100. Is the exercise of the veto a legislative power? first question which naturally suggests itself is as to the nature of the veto power. Dr. Von Holst maintains that the veto is in no sense a part of the legislative power, since "all" legislative power is vested in Congress. Mr. Bryce in his recent work seems hardly consistent on this point. In one place he speaks of the President as not at all a part of the legislature;2 while in another place he speaks of the President's veto power as a legislative function. Mr. Bryce expressly says that by granting the President the veto the Federal Convention made him "a distinct branch of the legislature, but for negative purposes only. Thus the executive was strengthened, not as an executive, but by being made a part of the legislature." 4 The latter view is in itself the more reasonable, and better harmonizes with the known deviations in the Constitution from the strict principle of separation of powers. Thus the Senate, in impeachments, is a judicial and not a legislative body. In like manner the President acts as a part of the law-making power when he approves or disapproves an act. This conclusion is strengthened by an examination of the growth of the veto. It has been pointed out in an earlier portion of this work that the veto in the Federal Constitution was derived from the State Constitutions, a view which is supported by the Federalist itself.6 The power in the States was derived in a somewhat modified form from the Colonial systems and from the institutions of the mother country; while in England the power was a remnant of the once important legislative power of the kings." Thus it appears as a matter of historical development as well as of theory that the veto is a legislative power. It therefore seems a reasonable explanation of the declaration that "all legislative power is vested in Congress," to say that the general statement is limited by the particular power given to the President in a later part of the same instrument. 1 Constitutional Law of the United States, 112. 2 The American Commonwealth (Am. edition), I, 52. 3 Ibid., I, 220. 4 Cooley also calls the veto a legislative power. Principles of Constitutional Law, 50. 5 Ante, §§ 8, 10. The Federalist (Dawson's ed.), No. LXVIII. 7 Ante, § 5. § 101. Constitutionality of pocket vetoes. The legal ten days. -The Constitution provides that no bill shall become a law which is presented to the President within ten days of the end of a session of Congress, unless it be signed and returned to Congress before adjournment. The provision is plain, and it is surprising that the constitutionality of these "pocket vetoes" has ever been questioned. In 1833, however, Henry Clay assailed President Jackson's pocket veto of the bill for the distribution of the proceeds of the public land, on the ground that it was unconstitutional.1 Clay maintained that the constitutional provision only applied to bills presented to the President within ten days of the adjournment of the first or of an extra session of Congress. In other words, Clay held that the President might withhold his signature where the day of the adjournment was fixed by simple joint resolution, but not otherwise. This reasoning is wholly unsound. It is unsupported by the Constitution, and too comprehensive as a matter of principle; for if the rule which Clay contended for should be adopted it would destroy the veto power; Congress could prevent the President from vetoing a bill by presenting it to him so late in the final session that he could not veto it and still send his message to Congress before adjournment. In fact, the bill concerning which Clay complained passed the House but two days before the expiration of that session. No case, therefore, could better illustrate the weakness of Clay's argument, or bring out more clearly the great usefulness of the pocket veto. How freely the pocket veto has been employed may be seen from an examination of the statistics. Many Presidents have left bills to perish for lack of their signature, including Presidents who had vetoed no bills directly.2 Another very interesting question relative to pocket vetoes is that of the length of time during which an act may be held by the President unsigned before it becomes law. In the appendix will be found numerous cases in which a veto message was returned from eleven to twenty-four days after the last action of either House. The Constitution distinctly provides, "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 become a law in like manner as if he had signed it." The explana 1 Appendix A, No. 17; Debates of Congress, Vol. X, Part I, 14-18. tion of the discrepancy is simple. In the first place, Sundays are not considered a legal part of the ten days, so that the twelfth day after submission to the President may legally be the tenth. In the second place, the day of reception is not included.1 In the third place, the bill is frequently not presented to the President until some days after passing through the final stages of legislation. It may therefore be set down as certain that all bills which pass the second House in which they are considered as late as February 20 in the odd years will fail without a veto, unless signed by the President; and bills passed between the 18th and 20th may fail. 3 § 102. May a bill be vetoed without stating reasons? All of the presidential vetoes have been accompanied by the reasons for the refusal to sign. Indeed it is difficult to see how any other plan could be followed, since the Constitution requires that if the President fails to approve a bill he shall return it, with his objections, to that House in which it shall have originated. Furthermore, it is maintained in a pamphlet by Mr. J. H. Benton, Jr., that the objections assigned must be objections to the intrinsic merits of the bill. He quotes at length from the proceedings of the Federal Convention, from the Federalist, and from the writings of Madison and Hamilton, to show that the President's authority was similar to that of the Council of Revision in the State of New York, and that this Council had power to state objections only to the intrinsic merits of the bills brought before it. This restriction would narrow the plain wording of the Constitution by an appeal to the practice of a body unknown to the Constitution, and equally unknown to English parliamentary practice. The Constitution sets no limit upon the nature of the objections stated by the President, nor is it generally assumed that there are any limits. If there be none, the President has a constitutional right to veto a bill simply because undue influence had been used in securing its passage, or for any other reason that seems good to him, even though his objections may have no reference to the contents of the measure. 1 Story, Commentaries. (Cooley's ed.) § 891, notes. For States, see Appendix E, Nos. 27-36. 2 Ante, § 11. In Georgia no veto message is required. Appendix E, No. 5. 3 Benton, The Veto Power in the United States, 35. 4 Von Holst, Constitutional Law, 113, note; Cooley, Principles of Constitutional Law, 50. § 103. May a bill be signed after the adjournment of Congress? There is nothing in the Constitution to prevent the President from signing a bill after the adjournment of Congress. The only provision is in regard to bills which the President leaves unsigned; these cannot become law if Congress, by its adjournment, cuts short the ten days allowed the executive for the consideration of bills. Nor is there any consideration of parliamentary law which demands that Congress should be in session when a bill is signed. Congressional jurisdiction over a bill ceases when it is sent to the President for his signature, and there is no legal method of recovering possession of the subject other than by a subsequent act of repeal passed under the usual forms. The act is not even returned to Congress, but is deposited by the President in the State Department.1 The interests of good government seem to demand that the President should have the power to distribute over the succeeding ten days the immense responsibility of signing the bills with which he is inundated during the last hours of Congress. At present he must either sign or "pocket veto" a multitude of bills with scarce a glance at them; and to refuse his signature when detailed examination is impossible means to cut off essential appropriations, or to defeat measures of great public importance. Should the President be given the additional time, his functions would be performed more carefully, and Congress would perhaps hesitate to pour upon him such a mass of crude legislation. In one important instance the right of a President to sign a bill after the adjournment of Congress has been distinctly recognized. March 3, 1863, Congress passed an act providing for the collection of abandoned property, and the prevention of frauds in insurrectionary districts of the United States. March 12, 1863, President Lincoln signed the bill. In 1883, in a case in the Court of Claims,3 the validity of the act was questioned, but the Court said that the Supreme Court had passed on cases under this act as if it had been valid law, and that Congress had recognized the validity of the act by amending it July 4, 1864, and speaking of it as the act of March 12, 1863. The particular case under consideration was, however, decided on another point, without a judicial determination of the validity of the act. 1 Revised Statutes, § 204. 2 Congressional Globe, Part II, 37 Cong., 3 sess., 1543. 8 18 Court of Claims, 700. |