This m em orandum supplements our mem orandum of February 10, 1982, to you, w hich discussed generally the President’s power to pocket veto legislation. That m em orandum also addressed the propriety of President Reagan’s pocket veto o f H .R . 4353 during the intersession recess of the 97th C ongress.' Since that m em orandum was prepared several matters have com e to our attention. While none of them casts doubt on the conclusions articulated in our earlier memoran­ dum , we believe that they should be brought to the attention of those who might rely on our February 10, 1982, memorandum in making decisions about the advisability o f future pocket v etoes.2

In our February 10 memorandum we discussed the 1974 D .C . Circuit decision Kennedy Sampson, 511 F.2d 430 (D .C . Cir. 1974). We did not discuss the subsequent district court decision in Jones, 412F. Supp. 353(D .D .C . 1976). In Jones, the government entered into a consent judgm ent with the plaintiff in a case challenging the validity of tw o pocket vetoes: one, an intersession pocket veto; the other an intrasession pocket veto during an election recess of 31 days. On the same day that judgm ent was entered, President Ford announced publicly that he w ould not invoke his pocket veto power during intrasession o r intersession recesses if the originating House of Congress had specifically authorized an officer or other agent to receive return vetoes during such periods. Department of Justice Press Release, Apr. 13, 1976.3 That an­ 1 T h e co n stitu tio n ality o f President R ea g an 's pocket veto o f H R 4 3 5 3 may be litigated in the Lifetim e C o m m u n ities, I n c ., New York bankruptcy p ro cee d in g now p en ding in the S econd C ircuit, Lifetime Communities, Inc. The Admin. Office o f the U S Courts {In re Fidelity M ortgage Investors), No. 8 2 -5 0 0 5 The A dm inistrative O ffice o f the U .S C o u rts, represented by th e D epartm ent o f Ju stice , filed a response on Septem ber 2 7 , 1982, to ap p e llan ts' m otion fo r leave to supplement its petition for rehearing to include a challenge to the pocket veto. In that resp o n se, ap pellee ag ree d that appellants’ n ew ly raised ch a llen g e to P resident R eagan's pocket veto o f H .R 4353 should be reh ea rd o n the m erits by the S eco n d C ircuit panel. T h e pocket veto of H R 4353 was, o f course, an in /ersessio n p o ck e t veto H owever, the ratio n ale supporting the availability o f intersession pocket vetoes w ould seem eq u ally ap p licab le to pocket vetoes d u rin g extended intrasession recesses. The Lifetime Communities case m ay affo rd a m ore favorable factual setting th a n the tw o cases, as w ell as a different forum , for litigating the po ck et veto issues it presents [The pocket v e to issue was not decided by the court of appeals, see 690 F 2d 35 (2d C ir 1982), and certiorari w as denied by th e Suprem e C ourt 462 U S 1106 (1983) ] 2 W ith resp ect to the discu ssio n in that m em o ran d u m regarding the im plications of the pocket veto ca ses for the P resid en t's recess ap p o in tm en t power, see o u r F eb 10, 1982, m em orandum to you at pp [134]. We refer you to our O c to b e r 2 5 , 1982, m em orandum to Counsel to the President F red F Fielding for a discussion of recent develop­ m en ts in th e rece ss a p p o in tm e n ts area 3 T h u s, the im m ediate occasion for the 1976 Ford announcem ent was the 1976 Jones consent ju d g m e n t. T h a t an n o u n c em en t w as not m ad e, as erroneously suggested in o u r previous m em orandum , in response o n ly to th e 1974 v case. nouncement addressed only President Ford’s intended use of the pocket veto power, and did not purport to bind, nor could it have bound, future Presidents. President Reagan has made no sim ilar statement, nor did President Carter during his Presidency.

President Ford’s statement confines its application to those situations in which the House of origin has specifically authorized an agent to receive messages dur­ ing the adjournment in question, as had been done in the case of the intrasession pocket veto challenged in Jones. See S. Con. Res. 120, § 3, 120 Cong. Rec. 36038 (1974) (intrasession election adjournment of the 2d Session of the 93d Congress). Specific authorizations of an agent to receive messages from the President becam e customary for intrasession and intersession recesses in both the Senate and the H ouse,4 and apparently still are in the Senate.5 At the beginning of the 97th Congress, however, the House amended its Rules to add new Rule of the House III-5 , which authorizes the Clerk to receive messages “ at any time that the House is not in session.” 6 The House Parliamentarian’s com ­ ments on new Rule III—5 state that this language is an effort to prevent intrases­ sion pocket vetoes, citing Sampson. Those comments make no mention of /n/ersession pocket vetoes or of Jones. The legislative history of new Rule III—5 supports this interpretation. Congressman Michel entered an analysis of the January 1981 Rules changes into the Congressional Record prior to their adoption. 127 Cong. Rec. 100-03 (1981). His explanation of proposed new Rule III-5 states that it applies only to “ non sine die adjourn­ ments.” Id. at 100.

With respect to President R eagan’s pocket veto of H .R. 4353 during the intersession recess of the 97th Congress, to which our February 10, 1982, memorandum was addressed, several observations should be made. First, it was an intersession veto, and thus fell outside the scope of the D .C. Circuit’s decision Sampson. Second, there was no specific resolution adopted by the House authorizing its agent to receive presidential messages during the interses­ sion recess of the 97th Congress, nor was there unanimous consent to do so, as we noted in that memorandum. Third, although the broad language of new House Rule III-5, quoted above, arguably covers intersession pocket vetoes, its com ­ mentary and legislative history indicate that it was aimed specifically at intrases­ sion pocket vetoes. Thus, we believe that the pocket veto of H .R . 4353 would probably have been considered appropriate even under President Ford’s self- imposed limitations on the exercise of his pocket veto power.

M ore importantly, however, we do not believe that subsequent Presidents should consider themselves bound by President Ford’s self-imposed restrictions on his use of the pocket veto power. Our February 10, 1982, memorandum and the Supreme Court cases which it analyzes set forth the rationale supporting the 41973 (1975), H R C on Res 4 4 2 , § 2 , 123 C ong. Rec 39132 (1977). Senate M anual 1981 (S D oc. N o. I, 97th C o n g ., 1st Sess. (1981)). 6 5 e ^ H R Res 5 , 1 2 7 C ong Rec 9 8 -1 1 3 (1981) The Senate R ules have not been sim ilarly am ended See ^[5] C on. Res 120, § 3, 120 C ong Rec 36038 (1974), H .R . Con Res 518, § 3 , 121 C ong Rec. 4 S e e , e g . , S 127 C ong. R ec. S 1^5632 (daily ed. Dec 16, 1981); 128 C ong Rec S13262 (daily ed. O ct 1, 1982).

use of pocket vetoes during both intersession and extended intrasession recesses. While we strongly believe that the pocket veto power should be interpreted in accordance with the principles set forth in our February 10,1982, mem orandum , the cases discussed there, as well as the subsequent developments mentioned here, suggest caution in exercising that power during at least intrasession recesses until more favorable court decisions have been obtained. The consequence of an unfavorable court ruling on a pocket veto is that the legislation becomes law. If a return veto is utilized, of course, the veto must be overridden in order for the bill to becom e law. W ith respect to the present extended (October 2-N ovem ber 29) intrasession adjournment, the broad statement of the holding by the court in counsels against use of a pocket veto,7 at least with regard to im portant legislation. The adjournm ent sine die of the 2d Session of the 97th Congress will presumably terminate that Congress, and bills presented within ten days o f that final adjournment would be subject to pocket vetoes. As noted in our February 10 memorandum, the propriety of a pocket veto after a final adjourn­ *3 ment (as opposed to an intrasession o r intersession adjournment) remains un­ questioned, “ since such an adjournm ent terminates the legislative existence of the Congress and makes it im possible to return the bill to either House.” The Pocket Veto Case, 279 U.S. 655, 681 (1929). T h e o d o r e B . O l s o n

Assistant Attorney General Office of Legal Counsel 7 Even though the case itself involved an intrasession pocket veto during an adjournment of only six days’ duration.