Use of the “Pocket Veto” During Intersession Adjournments of Congress

Headnotes: 

Under the Constitution, the President has the power to veto an enrolled bill by “retum[ing] it, with his objections to that House in which it shall have originated” within ten days of the bill’s being presented to the President. If, however, “the Congress by their Adjournment prevent [a bill’s] Return” from the President, he may veto the bill simply by failing to sign it (i.e., by “putting it in his pocket”). Congress may not override a pocket veto of a bill by a two-thirds vote of both Houses. Rather, the bill must be reintroduced and repassed by both Houses and resubmitted to the President for his approval or veto.

The Supreme Court has held that Congress’ appointment of an officer or agent to receive returned bills from the President during an intersession adjournment does not preclude the President from exercising a pocket veto. The Court has also held, however, that an ordinary “return veto” was valid when the President returned a bill to the Secretary of the Senate while that House was in an intrasession adjournment of three days or less.

Despite lower court decisions questioning the continued validity of the Supreme Court’s reasoning, use of the pocket veto during intersession adjournments remains valid, whatever steps Congress may take to receive returned bills during such and adjournment. The Supreme Court has not decided whether the pocket veto can be exercised when one House, but not the other, has adjourned sine die or for an intersession recess. Nor has that Court decided whether the pocket veto can be used during intrasession adjournments lasting longer than three days.

Updated July 9, 2014