The Pocket Veto: Its Current Status

Publication Date: March 2001

Publisher: Library of Congress. Congressional Research Service

Author(s):

Research Area: Government

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Abstract:

The Constitution provides that any bill not returned by the President "within ten Days (Sundays excepted)" shall become law, "unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law." This instrument of presidential power, known as the "pocket veto," was first used in 1812 by President James Madison. Unlike the regular veto, which is subject to a congressional override, a pocket veto is "absolute" because it is not returned to Congress.

Beginning in 1929, several judicial decisions attempted to clarify when an adjournment by Congress would "prevent" the President from returning a veto. Several cases during the Nixon administration appeared to restrict the pocket veto to a final adjournment of Congress at the end of the second session, and that understanding was accepted by the Ford and Carter administrations. Under this political accommodation, Presidents would not use the pocket veto in the middle of a session (intrasession vetoes) or between the first and the second sessions (intersession vetoes).

However, that agreement has not been followed by the Reagan, Bush, and Clinton administrations. President Ronald Reagan issued a pocket veto late in 1981 and 1983 (at the end of the first sessions), and President George Bush also used intersession pocket vetoes late in 1989 and 1991. President Bill Clinton, in 2000, used three intrasession pocket vetoes.

The pocket vetoes by Presidents Bush and Clinton were unusual in the sense that the vetoes were returned to Congress. Evidently the inter- and intrasession adjournments by Congress did not "prevent" the return of the vetoes. If the President returned these "pocket vetoes," could Congress attempt an override? The answer is that Congress several times has taken override votes on these types of pocket vetoes.

Efforts to legislate the meaning of "adjournment" have thus far been unsuccessful, nor has there been any definitive judicial ruling to clarify the constitutional issue, although court rulings have established important parameters for the pocket veto. As a result, the scope of the pocket veto power has been left largely to practice and to political understandings developed by the executive and legislative branches.