Georgetown Center for the Constitution

Arguing that “[f]irst, the president was given the pocket veto to defend against any congressional effort to duck, and therefore thwart, the regular veto . . . . Second, the Constitution establishes a clear preference for regular veto over pocket veto use . . . . Third, the founders were concerned about the uncertainty that might arise from legislation passed by both houses at the end of a session that was followed by a lengthy break and about which presidents had reservations . . . . Fourth, the pocket veto wording that defines the power as available when adjournment prevents bill return also means that there are adjournments when bill return is possible; that is, not all adjournments invite or allow a pocket veto.”

Arguing that “[s]hould the question of the President’s pocket-veto power ever be presented squarely to the Supreme Court, I believe that the Court would hold the pocket veto unavailable during interim adjournments where an agent who may accept returned bills is available. As Attorney General Levi advised President Ford in 1976, no other construction of the veto clause is consistent with the Constitution. If return is possible, then it is by definition not prevented. And in all cases where the Congress that passed a bill will meet again—and therefore will be able to consider a veto message—the Framers clearly intended that it have the opportunity to do so.”

Setting forth history of executive veto power in England, in early State constitutions, in the constitutional convention, and in early American practice.