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BARNES v. CARMEN

March 9, 1984

Michael D. BARNES, et al., Plaintiffs,
v.
Gerald P. CARMEN, Ronald Geisler, Defendants



The opinion of the court was delivered by: JACKSON

 JACKSON, District Judge.

 The original plaintiffs are 33 members of the United States House of Representatives, suing individually and as members of the House, of whom 31 voted in favor of a bill known as H.R. 4042 and two did not vote. They are joined by plaintiff-intervenors the United States Senate and the Speaker and bipartisan elected leadership of the House of Representatives. *fn1" Defendant Geisler is the Executive Clerk of the White House, and defendant Carmen is the Administrator of the General Services Administration. Plaintiffs allege, and defendants acknowledge, that defendant Geisler has a duty to deliver acts of Congress that have become law to the General Services Administration for publication, and defendant Carmen has a duty, under 1 U.S.C. ยงยง 106a, 112, and 113 (1982), to publish them.

 Plaintiffs seek a declaratory judgment that H.R. 4042, 98th Cong., 1st Sess. (1982), passed by both houses of Congress, but neither signed by the President nor returned by him to the House of Representatives within 10 days (Sundays excepted) after its presentment to him, became a validly enacted law of the United States in accordance with article I, section 7, clause 2 of the Constitution, and they pray that a writ of mandamus or preliminary and permanent injunction issue directing defendants to cause it to be published as a public law. *fn2" The Court ordered the trial of the action on the merits advanced and consolidated with the hearing on the application for the preliminary injunction pursuant to Fed.R.Civ.P. 65(a)(2), and the parties have since filed cross-motions for summary judgment. The underlying material facts are not in dispute.

 I.

 On September 30, 1983, the House of Representatives passed H.R. 4042. *fn3" The Senate passed it without amendment on Thursday, November 17, 1983. The following day the Speaker of the House and the President Pro Tempore of the Senate signed the bill, and the House Committee on Administration presented it to President Reagan for his consideration. On the same day, November 18, 1983, the 98th Congress adjourned its first session sine die,4 after agreeing by joint resolution to convene its second session on January 23, 1984, which it did. Prior to adjournment the Senate authorized the Secretary of the Senate to receive messages from the President in its absence; a standing House of Representatives rule confers similar authority on its Clerk. *fn5" The President neither signed H.R. 4042 into law nor returned it to the House with a veto message. On Wednesday, November 30th, the tenth day after its presentment to him (excluding Sundays) he issued a statement that he was withholding his approval of the bill. *fn6" Defendants accordingly did not deliver and publish it as law.

 II.

 Article I, section 7, clause 2 of the Constitution, the first of the Presentment Clauses, defines the respective powers of the Congress and the President in the enactment of legislation. It provides:

 
Every Bill which shall have passed the House of Representatives 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 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 . . . . 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.

 Thus, after both houses of Congress pass a bill and present it to the President, it has one of four possible destinies: the President may sign it into law within ten days; the President may return it with a veto message to the house in which it originated within ten days for reconsideration by both houses; the President may hold the bill for more than ten days without signing or returning it, although he might have returned it, in which case it becomes a law without more; or the President may hold it for more than ten days without signing or returning it, but Congress by its adjournment in the meantime has "prevented" its return, and the bill thus expires by the process which has come to be known as the "pocket veto."

 The question presented by this case is, therefore, whether through the third of these eventualities H.R. 4042 became a law, or through the fourth it did not, and the answer to the question depends on whether the adjournment of the first session of the 98th Congress on November 18, 1983, until the commencement of its second session approximately nine weeks later may be said to have prevented the President's returning H.R. 4042 to the House of Representatives with his objections whence Congress might have proceeded with an attempt to override the veto.

 Plaintiffs contend that, notwithstanding historical and judicial precedent of the more distant past to the contrary, contemporary conditions as well as more recent authority have made a pocket veto during an intersession adjournment of Congress an anachronism. It is, they say, incompatible with the perceived scheme of the Presentment Clause, viz., that the President and Congress, respectively, have suitable opportunity to consider and object to bills, and to consider objections and override them if it can. They claim it is now a discredited practice, abandoned by the two most recent predecessors of the incumbent President. As a practical matter, plaintiffs assert (and defendants agree), intersession adjournments of Congress are indistinguishable from intrasession adjournments, even as to their accustomed length. *fn7" Pending business -- except for Senatorial confirmations -- remains pending, and the organizations of both houses remain intact. The appointment of agents by both houses to receive and record Presidential messages in the members' absences, *fn8" and modern means of communication and transportation to enable them to reassemble with dispatch, have eliminated any uncertainty as to a bill's status upon its return with objections to an empty chamber, or any delay in resolving it (if, indeed, there ever were), and have rendered the pocket veto obsolete during all but final adjournments at the end of a Congressional term when Congress, as such, no longer exists.

 Defendants argue from original scholarship that the intent of the Framers of the Constitution can be discerned from their rejection of draft language, drawn from a state constitution, which would have precluded a pocket veto altogether and required any veto to be made by return when the legislature was next in session. They point to historical practice demonstrating that virtually every American President since James Madison first did so in 1812 has made intersession pocket vetoes, and that Congress has acquiesced in them -- 272 in all -- which, they say, is compelling evidence of how most Presidents and Congresses have thought the Presentment Clause is to operate. And they assert that the pocket veto serves the important and practical function of promptly resolving the status of bills in Presidential disfavor so that the nation may know the law and the people arrange their affairs accordingly.

 It is, however, not open to this Court to resolve the issue as an original matter, for there are three past decisions -- two by the Supreme Court over a generation ago, and a more recent one by the Court of Appeals for the District of Columbia Circuit -- which have considered the proper construction to be given the Presentment Clause. *fn9" Plaintiffs rely on the reasoning of the second of the Supreme Court decisions and that of the court of appeals, while defendants contend that the first ...


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