Constitution of the United States/Art. I/Sec. 7/Clause 2 Role of President

Constitutional Law Treatise Table of Contents

Constitutional Law Outline

Introduction

The Preamble

Article I Legislative Branch

Art. I, Section 1 Legislative Vesting Clause

Art. I, Section 2 House of Representatives

Art. I, Section 3 Senate

Art. I, Section 4 Congress

Art. I, Section 5 Proceedings

Art. I, Section 6 Rights and Disabilities

Art. I, Section 7 Legislation

Art. I, Section 8 Enumerated Powers

Art. I, Section 9 Powers Denied Congress

Art. I, Section 10 Powers Denied States

Article II Executive Branch

Art. II, Section 1 Function and Selection

Art. II, Section 2 Powers

Art. II, Section 3 Duties

Art. II, Section 4 Impeachment

Article III Judicial Branch

Art. III, Section 1 Vesting Clause

Art. III, Section 2 Justiciability

Art. III, Section 3 Treason

Article IV Relationships Between the States

Art. IV, Section 1 Full Faith and Credit Clause

Art. IV, Section 2 Interstate Comity

Art. IV, Section 3 New States and Federal Property

Art. IV, Section 4 Republican Form of Government

Article V Amending the Constitution

Article VI Supreme Law

Article VII Ratification

First Amendment: Fundamental Freedoms

Religion

Establishment Clause

Free Exercise Clause

Free Speech Clause

Freedom of Association

Second Amendment: Right to Bear Arms

Third Amendment: Quartering Soldiers

Fourth Amendment: Searches and Seizures

Fifth Amendment: Rights of Persons

Sixth Amendment: Rights in Criminal Prosecutions

Seventh Amendment: Civil Trial Rights

Eighth Amendment: Cruel and Unusual Punishment

Ninth Amendment: Unenumerated Rights

Tenth Amendment: Rights Reserved to the States and the People

Eleventh Amendment: Suits Against States

Twelfth Amendment: Election of President

Thirteenth Amendment: Abolition of Slavery

Thirteenth Amend., Section 1 Prohibition on Slavery and Involuntary Servitude

Thirteenth Amend., Section 2 Enforcement

Fourteenth Amendment: Equal Protection and Other Rights

Fourteenth Amend., Section 1 Rights

Fourteenth Amend., Section 2 Apportionment of Representation

Fourteenth Amend., Section 3 Disqualification from Holding Office

Fourteenth Amend., Section 4 Public Debt

Fourteenth Amend., Section 5 Enforcement

Fifteenth Amendment: Right of Citizens to Vote

Fifteenth Amend., Section 1 Right to Vote

Fifteenth Amend., Section 2 Enforcement

Sixteenth Amendment: Income Tax

Seventeenth Amendment: Popular Election of Senators

Eighteenth Amendment: Prohibition of Liquor

Eighteenth Amend., Section 1 Prohibition

Eighteenth Amend., Section 2 Enforcement of Prohibition

Eighteenth Amend., Section 3 Ratification Deadline

Nineteenth Amendment: Women's Suffrage

Twentieth Amendment: Presidential Term and Succession

Twentieth Amend., Section 1 Terms

Twentieth Amend., Section 2 Meetings of Congress

Twentieth Amend., Section 3 Succession

Twentieth Amend., Section 4 Congress and Presidential Succession

Twentieth Amend., Section 5 Effective Date

Twentieth Amend., Section 6 Ratification

Twenty-First Amendment: Repeal of Prohibition

Twenty-First Amend., Section 1 Repeal of Eighteenth Amendment

Twenty-First Amend., Section 2 Importation, Transportation, and Sale of Liquor

Twenty-First Amend., Section 3 Ratification Deadline

Twenty-Second Amendment: Presidential Term Limits

Twenty-Second Amend., Section 1 Limit

Twenty-Second Amend., Section 2 Ratification Deadline

Twenty-Third Amendment: District of Columbia Electors

Twenty-Third Amend., Section 1 Electors

Twenty-Third Amend., Section 2 Enforcement

Twenty-Fourth Amendment: Abolition of Poll Tax

Twenty-Fourth Amend., Section 1 Poll Tax

Twenty-Fourth Amend., Section 2 Enforcement

Twenty-Fifth Amendment: Presidential Vacancy

Twenty-Fifth Amend., Section 1 Presidential Vacancy

Twenty-Fifth Amend., Section 2 Vice President Vacancy

Twenty-Fifth Amend., Section 3 Declaration by President

Twenty-Fifth Amend., Section 4 Declaration by Vice President and Others

Twenty-Sixth Amendment: Reduction of Voting Age

Twenty-Sixth Amend., Section 1 Eighteen Years of Age

Twenty-Sixth Amend., Section 2 Enforcement

Twenty-Seventh Amendment: Congressional Compensation

Article I Legislative Branch

Section 7 Legislation

Clause 2 Role of President

Overview of Presidential Approval or Veto of Bills[edit | edit source]

Article I, Section 7, Clause 2 provides that once a bill passes both houses of Congress it must be presented to the President for approval or veto.^[1] This provision, together with Article I, Section 7, Clause 3, is sometimes called the "Presentment Clause."^[2]

The Supreme Court has held that if the President wishes to approve a bill, the Presentment Clause only requires him to sign it. He need not write on the bill the word "approved" nor the date of approval.^[3] The text of Article I requires that the President sign a bill, if at all, "within ten Days (Sundays excepted)" after presentment. Failure to sign has different consequences depending on whether the legislature is in session, since the President cannot return a vetoed bill to Congress when the legislature is adjourned.^[4] If the President does not sign a bill within ten days of presentment while Congress is in session, the bill automatically becomes law. If Congress adjourns while the bill is awaiting signature and the President does not sign the bill within ten days of presentment, the bill does not become law. This is sometimes called a "pocket veto." However, a President wishing to approve a bill is not required to sign it on a day when Congress is in session.^[5] He may sign within ten days (other than Sundays) after the bill is presented to him, even if that period extends beyond the date of Congress's adjournment.^[6]

The Court has held that a bill becomes a law on the date of its approval by the President.^[7] When an act does not specify an effective date, it also takes effect on the date of its approval.^[8] The Court has further held that a new law generally takes effect from the first moment of the day, fractions of a day being disregarded.^[9] If no date appears on the face of the roll, the Court may ascertain the fact by resort to any source of information capable of furnishing a satisfactory answer.^[10]

Veto Power[edit | edit source]

The Presentment Clause allows the President to veto legislation, preventing it from taking effect unless two thirds of both the House and Senate vote to override the veto. The Supreme Court has held that the two-thirds vote of each Chamber required to pass a bill over a veto refers to two-thirds of a quorum.^[11] While the President may exercise the veto power to prevent a bill from becoming law, the Court has held that, once a bill becomes law, the President has no authority to repeal it.^[12] The Court has also issued decisions limiting vetoes in certain contexts, including the line item veto and the legislative veto.^[13]

When Congress is in session, a President who wishes to veto a bill must return the bill to the Chamber in which it originated within ten days (excepting Sundays) of when the bill is presented to him.^[14] If Congress approves a bill and sends it to the President, then adjourns before the ten days elapse, the President cannot return the bill to the originating Chamber after adjournment. In those circumstances, the President can prevent the bill from becoming law simply by declining to sign it, sometimes called a "pocket veto." If the President blocks legislation by pocket veto, Congress cannot later override the veto--instead, the legislature must reintroduce the bill and enact it again.

The Supreme Court has explained that the Constitution's veto provisions serve two functions. On the one hand, they ensure that "the President shall have suitable opportunity to consider the bills presented to him. . . . It is to safeguard the President's opportunity that Paragraph 2 of § 7 of Article I provides that bills which he does not approve shall not become law if the adjournment of the Congress prevents their return."^[15] At the same time, the sections ensure "that the Congress shall have suitable opportunity to consider his objections to bills and on such consideration to pass them over his veto provided there are the requisite votes."^[16] The Court asserted that it "should not adopt a construction which would frustrate either of these purposes."^[17]

The Supreme Court has considered two cases concerning the return of vetoed legislation to Congress. In 1929, in The Pocket Veto Case, the Court held that the President could not return a bill to the Senate, where it originated, when Congress adjourned its first session sine die fewer than ten days after presenting the bill to the President.^[18] The Court declined to limit the word "adjournment" to final adjournments, instead reading it as referring to any occasion on which a house of Congress is not in session. The Court held that "the determinative question in reference to an 'adjournment' is not whether it is a final adjournment of Congress or an interim adjournment, such as an adjournment of the first session, but whether it is one that 'prevents' the President from returning the bill to the House in which it originated within the time allowed."^[19] Because neither House was in session to receive the bill, the President was prevented from returning it. One of the parties had argued that the President could return the bill to a proper agent of the House of origin for consideration when that body convened. After noting that Congress had never authorized an agent to receive bills during adjournment, the Court further opined that "delivery of the bill to such officer or agent, even if authorized by Congress itself, would not comply with the constitutional mandate."^[20]

By contrast, in the 1938 case Wright v. United States, the Court held that the President's return of a bill to the Secretary of the Senate on the tenth day after presentment, during a three-day adjournment by the originating Chamber only, was an effective return.^[21] In the first place, the Court reasoned, the pocket veto clause referred to an adjournment of "the Congress," and here only the Senate, the originating body, had adjourned. The President could return the bill to the originating Chamber while it was in an intrasession adjournment because there was no "practical difficulty" in making the return. The Court observed: "The organization of the Senate continued and was intact. The Secretary of the Senate was functioning and was able to receive, and did receive the bill."^[22] The Court held that such a procedure complied with the constitutional provisions because "[t]he Constitution does not define what shall constitute a return of a bill or deny the use of appropriate agencies in effecting the return."^[23] The Court determined that the concerns that motivated the decision in The Pocket Veto Case were not present. There was no indefinite period in which a bill was in a state of suspended animation with public uncertainty over the outcome. Thus, the Court concluded, "When there is nothing but such a temporary recess the organization of the House and its appropriate officers continue to function without interruption, the bill is properly safeguarded for a very limited time and is promptly reported and may be reconsidered immediately after the short recess is over."^[24]

Line Item Veto[edit | edit source]

The veto power grants the President a significant role in the legislative process; but, as with many aspects of the Constitution's three-branch system of government, the Presentment Clause sometimes requires the President to compromise. At times, often in the appropriations context, Congress enacts far-reaching bills containing provisions the President believes to be beneficial or even necessary along with other provisions that he would not approve standing alone. Under the Presentment Clause, the President must sign or veto an entire bill. For more than a century, Presidents sought authority to veto certain line items in an appropriations bill while otherwise approving the legislation. Numerous Presidents from Ulysses Grant on unsuccessfully sought a constitutional amendment that would allow a line-item veto by which individual items in an appropriations bill or a substantive bill could be extracted and vetoed. Beginning in the Franklin Delano Roosevelt Administration, Congress debated whether it could enact a statute authorizing a line-item veto.^[25]

In 1996, Congress approved and the President Bill Clinton signed the Line Item Veto Act.^[26] The law empowered the President, within five days of signing a bill, to cancel certain spending items and targeted, defined tax benefits. In exercising this authority, the President was to determine that the cancellation of each item would (1) reduce the Federal budget deficit; (2) not impair any essential Government functions; and (3) not harm the national interest.^[27]

In Clinton v. City of New York, the Supreme Court held the Act unconstitutional because it did not comply with the Presentment Clause.^[28] Although Congress in passing the Act considered itself to have been delegating power to the President,^[29] the Court instead analyzed the statute under the Presentment Clause. In the Court's view, two bills from which the President subsequently struck items became law the moment the President signed them. His cancellations thus amended and, in part, repealed the two federal laws. The Court explained, however, that statutory repeals must conform to the Presentment Clause's "single, finely wrought and exhaustively considered, procedure" for enacting or repealing a law.^[30] The Court held that the procedures in the Act did not, and could not, comply with that clause. The Act purported to allow the President to act in a legislative capacity, altering a law. But nothing in the Constitution authorized the President to amend or repeal a statute unilaterally, and the Court construed both constitutional silence and the historical practice over 200 years as "an express prohibition" of the President's action.^[31]

Legislative Veto[edit | edit source]

Beginning in the 1930s, Congress embraced a new use for concurrent resolutions (resolutions by both Houses of Congress) and simple resolutions (resolutions by a single Chamber), invoking them to terminate powers delegated to the President or to disapprove particular exercises of power by the President or the President's agents. The "legislative veto" or "congressional veto" first developed in the context of the delegation to the Executive of power to reorganize governmental agencies,^[32] and expanded in response to national security and foreign affairs considerations immediately prior to and during World War II.^[33] At first, Congress applied veto provisions to certain actions taken by the President or another Executive officer--such as the reorganization of an agency, changes to tariff rates, or the disposal of federal property. However, Congress later expanded the device to give itself power to negate regulations issued by Executive Branch agencies, and proposals were made to allow Congress to negate all regulations of Executive Branch independent agencies.^[34] The proliferation of congressional veto provisions raised a series of interrelated constitutional questions.^[35]

In the 1983 case INS v. Chadha, the Court held a one-House congressional veto to be unconstitutional as violating both the bicameralism principles reflected in Article I, Sections 1 and 7, and the presentment provisions of Section 7, Clauses 2 and 3.^[36] The veto provision in question, Section 244(c)(2) of the Immigration and Nationality Act, authorized either house of Congress by resolution to veto the decision of the Attorney General to allow a particular deportable alien to remain in the country.

In determining that veto of the Attorney General's decision on suspension of deportation was a legislative action requiring presentment to the President for approval or veto, the Court set forth the general standard. The Court explained that whether actions taken by either House are "an exercise of legislative power depends not on their form but upon 'whether they contain matter which is properly to be regarded as legislative in its character and effect.'"^[37] The Court concluded that the action before it "was essentially legislative" because "it had the purpose and effect of altering the legal rights, duties and relations of persons, including the Attorney General, Executive Branch officials and Chadha, all outside the Legislative Branch."^[38]

The other major component of the Court's reasoning in Chadha stemmed from its reading of the Constitution as making only "explicit and unambiguous" exceptions to the bicameralism and presentment requirements. Thus the House alone was given power of impeachment, and the Senate alone was given power to convict upon impeachment and to provide advice and consent to Executive appointments and treaties; similarly, the Congress may propose a constitutional amendment without the President's approval, and each House is given autonomy over certain "internal matters" such as judging the qualifications of its members. By implication then, exercises of legislative power not falling within any of these "narrow, explicit, and separately justified" exceptions must conform to the prescribed procedures: "passage by a majority of both Houses and presentment to the President."^[39]

While Chadha involved a single-House veto, the Court's analysis of the presentment issue made clear that two-House veto provisions and committee veto provisions suffer the same constitutional infirmity as the law at issue in that case.^[40] Justice Byron White, dissenting in Chadha, asserted that the Court had "sound[ed] the death knell for nearly 200 other statutory provisions in which Congress has reserved a 'legislative veto.'"^[41] The breadth of the Court's ruling in Chadha was evidenced in its 1986 decision in Bowsher v. Synar.^[42] Among that case's rationales for holding the Deficit Control Act unconstitutional was that Congress had, in effect, retained control over Executive action in a manner resembling a congressional veto. The Court explained that "Chadha makes clear" that "once Congress makes its choice in enacting legislation, its participation ends. Congress can thereafter control the execution of its enactment only indirectly--by passing new legislation."^[43]

Since 1983, Congress has employed various devices other than the legislative veto, such as "report and wait" provisions and requirements for certain consultative steps before action may be undertaken.^[44] Chada has, however, restricted efforts in Congress to confine the discretion it delegates to the Executive Branch.