(concurring) :
I am in thorough agreement with the conclusion reached by the majority in this case, and with most that is said in justification of this conclusion. However, since there are some expressions and some inferences and some reservations in it with which I am not wholly in accord, I file this concurring opinion. For instance, I think by long-continued usage, presentation to the White House constituted presentation to the President, and that this usage could not be set aside without prior notification to the Congress. Nor do I think it was necessary for Congress to acquiesce in setting it aside. The majority opinion does not so hold, as least not explicitly.
My discussion of the question follows:
We are presented with a novel situation in this case. There are no court decisions on the question presented. The question is, what constitutes presentation to the President of a Bill passed by Congress, within the meaning of Section 7 or Article I of the Constitution, which reads:
“Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become 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 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.”
Presentation starts the running of the 10-day period, so the question is, what constitutes presentation to the President?
The purpose of the constitutional provision is to give the President a period of 10 days (Sundays excepted) within which to consider the legislation and, within that time, to express his approval or disapproval, if he cares to do so. Since a full 10 days (Sundays excepted) are allotted to him for consideration, it would seem to follow, necessarily, that he might require that the Bill be presented to him in person, in order that he might have the full time.19 My conclusion in this case is based on that premise.
Having that prerogative, it would seem also to follow that, in case he did not desire personal presentation, he had the right to determine the way in which substitute presentation should be made, provided only that this was not more onerous than personal presentation. His determination of the manner of presentation, of course, had to be communicated to Congress, so that that body might comply with its duty to present Bills to the President for his consideration.
*635Having the right to prescribe the way in which presentation should be made in the first instance, he had the right to change the way from time to time, but, again, he was required to notify Congress of any change, in order that Congress might discharge its constitutional duty.
In the absence of formal notification to Congress of the substitute for personal service, established usage would seem to determine the method of presentation.20
Presentation by Congress in the way prescribed marks the beginning of the 10-day period.
These propositions would seem to be fundamental and should guide us to a proper solution of the question presented in this case.
For at least 40 years, no doubt for a much longer time, enrolled Bills have not been presented to the President in person, except in the case of the Bank Holiday Bill of 1933 and Bills passed ■on the eve of sine die adjournment of the Congress. The usage has been for the Committee on Administration of either the House or the Senate, after the Bill has been signed by the Speaker of the House and the Presiding Officer of the Senate, to send a clerk to the White House with the enrolled Bill and deliver it to a legislative clerk in the records office of the White House, who signs a receipt for it. The Committee on Administration then reports to the House or Senate “that this day they presented to the President of the United States, for his approval, the following Bills.”
For many years this has been understood to constitute presentation to the President. Usage requires us to hold that it complies with the constitutional requirement for presentation to the President, unless in the instance of any particular Bill, including the particular Bill here under consideration, action was taken by the President to notify Congress that some other mode of presentation would be required, either personal presentation or otherwise.
Before he left the country on August 26, 1959, the President gave adequate notice to Congress that delivery of enrolled Bills to the White House would not constitute presentation of such legislation to him. H.R. 2717, the Bill involved in this case, was one of the Bills delivered during that period.
This was the second occasion on which President Eisenhower had considered the problem of presentation to him of enrolled Bills during his absence from the United States. Before he departed for the Geneva Conference on July 15, 1955, he had asked the advice of Attorney General Brownell on the proper handling of Bills passed by both Houses of Congress while he was away. The Attorney General had suggested that arrangements be made with Congress so that enrolled Bills would be held until his return or delivered to the White House “for forwarding to the President.” The findings do not show whether the President, or his representative, discussed the matter with Congress, but they do show that all Bills delivered to the White House during this time were stamped “Received for forwarding to the President.”
Prior to his departure on August 25, 1959, President Eisenhower instructed his staff of stamp all Bills delivered to the White House during his absence: “Held for presentation to the President upon his return to the United States.” This decision was informally communicated to congressional leaders, at the President’s direction, by his Deputy Assistant for Congressional Affairs.
Since the President had the right to require personal presentation to him, he had the right to notify Congress that during his absence the accustomed substitute would not be acceptable.
When he advised Congress that delivery of Bills to the White House would not be deemed presentation to the President, President Eisenhower followed the *636example of his predecessors. For example, when President Franklin D. Roosevelt was preparing to leave the country for an extended stay in 1943, he requested advice from his Attorney General as to the proper handling of Bills passed by Congress. The Attorney General advised him in part:
“The practice of receiving bills at the White House and forwarding them for presentation may also require a measure of cooperation. Probably the custom of treating delivery to the White House as presentation to the President should be negatived by informal Presidential advice to the Vice-President and the Speaker that persons at the White House will, during a given period, be authorized only to forward, and not to receive on behalf of the President, enrolled bills. Such directions should be reflected in the reports of the Committee on Enrollment to their respective Houses announcing the date of presentation of bills to the President.”
In rendering this advice, Attorney General Biddle adverted to a practice during President Wilson’s administration of varying the form of the report of presentation in the Congressional Record, when the President was outside of the country, notifying the originating House that the Bill had been delivered to the White House, instead of to the President.
Upon receipt of this advice, President Roosevelt sent a memorandum to the Vice President and the Speaker of the House of Representatives, reading as follows:
“As I expect to be away from Washington for some time in the near future, I hope that insofar as possible the transmission of completed legislation be delayed until my return. The White House Office, however, in other cases of emergency has been authorized to forward to me any and all enrolled bills or joint resolutions. They will be forwarded at once by the quickest means. The White House Office will not receive bills or resolutions on behalf of the President but only for the purpose of forwarding them. As soon as received by the President their presentation to the President will have been completed in accordance with the terms of the Constitution. I suggest, therefore, that if any bill is forwarded to the White House, the entries on the House and Senate Journals show ‘delivery to the White House for forwarding to the President’.
“For security reasons I hope that this can be kept confidential for as long as is necessary.” [Emphasis in original.]
Since the President had the right to require personal presentation, President Roosevelt was fully justified in notifying Congress that the customary usage of treating delivery to the White House as presentation to the President would not be followed, and in prescribing a different procedure during his absence from the country. The essential element of notification to Congress of the change was fully complied with. Had this been omitted, I think the change in procedure would have been ineffectual.
President Truman, who succeeded to-the Presidency upon Mr. Roosevelt’s death, did not, prior to his departure for the Potsdam Conference in 1945,. take action similar to that of his predecessor in his memorandum to leaders of Congress. Nonetheless, President. Truman acted on a number of Bills more than 10 days (Sundays excepted) after delivery to the White House but within 10 days (Sundays excepted) after his return. He may have done so with the understanding that the procedure to-be followed during the President’s absence, as set out in President Roosevelt’s 1943 Memorandum, would continue in force during his administration. The Roosevelt memorandum, however, seems to relate only to the particular absence then in contemplation and does not ap*637pear to have been intended to apply to any others. But the reasons for the procedure there prescribed would seem to be equally applicable to an absence of any future President, quite as much as to Mr. Roosevelt. In any event, it is clear that President Truman did not regard presentation to a clerk at the White House while he was absent from the country as presentation to him. The Congress appears to have been of the same opinion, for it gave the same treatment to Bills that Mr. Truman purported to veto as it did to all other vetoed legislation. They were referred back to Committee; Congress took no further action upon them, and they were not published as laws.
The record does not show that the procedure during the Truman administration was based on formal notification to Congress that the custom of treating presentation to the White House as presentation to the President would not be followed during his absence; however, we need not concern ourselves with this for it is indisputable that, with regard to the Bill presently before us, President Eisenhower advised Congress that, during his absence from the country, delivery to the White House would not be considered presentation to the President, and that, if Bills were delivered to the White House, they would be stamped, “Held for presentation to the President upon his return to the United States.”
After that notification was given, H.R. 2717, the Bill here in question, was delivered to the White House on August 31, 1959. The President returned it to the House in which it originated on September 14, 1959, with his objections to it. He had returned to the United States on September 7, 1959.
No action was taken by Congress to present the Bill to the President other than delivery of it to the White House. But the President had notified Congress that he would not accept this as the equivalent of personal delivery to him. Since he had the right to insist on presentation to him in person, it must be held that it was not “presented to the President” prior to his return to this country on September 7,1959. He vetoed it within 10 days thereafter. In my opinion it never became law.
. Edwards v. United States, 286 U.S. 482, 152 S.Ct. 627, 76 L.Ed. 1239 (1932).
. The Pocket Veto Case, 279 U.S. 655, 689, 49 S.Ct. 463, 73 L.Ed. 894 (1929).