Exercising the Pocket Veto

Exercising the Pocket Veto
When the President wishes to disapprove a bill, and Congress’s adjournment has prevented the
President’s return of the bill, the safer course for the President to exercise his power of disapproval
is through a pocket veto, instead of endorsing the bill with the word “disapproved” and the Presi-
dent’s signature.

June 26, 1934

MEMORANDUM OPINION FOR THE EXECUTIVE CLERK
WHITE HOUSE*

The view appears to be correct that the President’s powers and duties in respect
of the approval or disapproval of bills presented to him by the Congress are to be
exercised strictly, since he is acting in this behalf as a part of the law making
power, and the method of exercise is fixed by the Constitution itself, the immedi-
ately pertinent provision being: “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 . . . . 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.” U.S. Const. art. I, § 7.
“The only duty required of the President by the Constitution in regard to a bill
which he approves is, that he shall sign it. Nothing more. The simple signing his
name at the appropriate place is the one act which the Constitution requires of him
as the evidence of his approval, and upon his performance of this act the bill
becomes a law. . . . Even in the event of his approving the bill, it is not required
that he shall write on the bill the word approved, nor that he shall date it.” Gardner
v. The Collector, 73 U.S. (6 Wall.) 499, 506 (1867). Compare also 59 C.J. Statutes
§§ 112–113 (1932).
“When exercising these powers [of governor] he is a special agent with limited
powers, and, as in the case of other special agents, he can act only in the specified
mode, and can exercise only the granted powers. If he attempts to exercise them in
a different mode, or to exercise powers not given, his act will be wholly ineffectu-
al and void for any and every purpose. When he goes beyond the limits of these
powers in the attempt to exercise them, his acts, so far as they transcend the
powers, are of no force.” Lukens v. Nye, 105 P. 593, 594 (Cal. 1909).

*
Editor’s Note: The Unpublished Opinions of the Assistant Solicitor General contain a footnote
here cross-referencing the letter on the previous page (Whether a Three-Day Recess by One Chamber
of Congress Constitutes an Adjournment for Purposes of the Pocket Veto Clause, 1 Op. O.L.C. Supp.
25 (Mar. 16, 1934)). That letter expresses doubt about whether a three-day recess by the Senate, while
the House remains in session, can be considered an “Adjournment” that “prevent[s] [the] Return” of a
bill under Article I, Section 7 of the Constitution.

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 Exercising the Pocket Veto

The foregoing, it may be observed, relates to the method of approval of a bill,
while your question relates to disapproval and arises upon endorsement on the bill
of the word “disapproved,” followed by the President’s signature. I agree with you
that such endorsement and signature are unnecessary, when disapproval is to be
given, but I also think they may be regarded as surplusage, provided the President
shall pocket veto the bill in the usual manner, and this is the safer course to pursue.
It may be said that since the method of approval is strictly prescribed, the method
of disapproval is equally so and should be observed.

ANGUS D. MACLEAN
Assistant Solicitor General

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