and claimed to have pocket vetoed the bill. The Senate had voted 64 to 1 in favor of the bill. The House had voted 346 to 2 to pass the bill and the bill was presented to President Nixon on December 14, 1970. Senator Kennedy sought a declaratory judgment that the bill became law after ten days, on December 25, 1970. He argued that the Secretary of the Senate had been authorized to receive presidential messages during the five day adjournment within a session and such adjournment therefore did not prevent return of bills. The district court agreed.70 The U.S. Court of Appeals, District of Columbia Circuit, upheld the district court, saying: 71

We hold that the Christmas recess of 1970 did not prevent the return of S. 3418—a conclusion that can be reached by either of two routes. First the present case is governed by the logic, if not the precise holding, of the Wright decision. Second, the case is an appropriate one for disposition of the question of whether any intrasession adjournment, as that practice is presently understood, can prevent the return of a bill by a President where appropriate arrangements have been made for receipt of presidential messages during the adjournment—a question which must be answered in the negative.

The Family Practice of Medicine Act was printed as a public law in 1975, P.L. 91-696, and dated December 25, 1970. However, the Act had little significance for the programs with which it was concerned.72

The Family Practice of Medicine Act is remembered for its legal significance, not for its impact on programs. . . . Congress had appropriated the token sum of $100,000 for the program, but the money was impounded during the litigation. After the administration decided against an appeal, it released the money for obligation. But officials at the Department of Health, Education and Welfare estimated that it would cost $300,000 to set up the admininstrative machinery called for by the Act. With the concurrence of the Appropriations Committees, HEW reprogrammed the $100,000 to a similar activity under Title VII of the Public Health Services Act.

Kennedy v. Sampson has had a significant impact on the exercise of the pocket veto, though the case never reached the Supreme Court. The Ford administration, which entered office after the Appeals Court decision was handed down, sought a political accommodation on the issues. On April 26, 1976, Senator Kennedy announced to the Senate President Ford's resolution of the controversy:

73

Mr. KENNEDY. Mr. President, on April 13, 1976, the Department of Justice announced that it would no longer oppose the lawsuit I had brought to settle the scope of the President's pocket veto power under article I, section 7, clause 2 of the Constitution.

Henceforth, according to the decision made by President Ford, a pocket veto will be used only during the sine die adjournment of Congress at the end of its second session. During all other adjournments-including intrasession adjournments, such as the recent Easter recess and the summer adjournment, and the intersession adjournment between the first and second sessions of a Congress-the President will use a normal or return veto, not a pocket veto. That is, the President will return the bill to Congress, so that Congress will have the opportunity to override the veto. According to the Department of Justice announcement, the only requirement for the use of normal vetoes during an adjournment is that the Senate or House must designate officers to receive a vetoed bill during the adjournment. In recent years, the Senate and House have routinely made such designations during adjournments and the practice will certainly continue.

70 Kennedy v. Sampson, 364 F. Supp. 1095 (D.D.C. 1973).

71 Kennedy v. Sampson, 511 F.2d 430 (D.C. Cir., 1974).

72 Louis Fisher, Constitutional Conflicts between Congress and the President 153 (1985). 73 122 Cong. Rec. 11202 (1976).

President Ford's recent action is a generous and complete vindication of the rights of Congress and its role in the enactment of Federal legislation, and I welcome the President's decision.

President Carter also refrained from exercising the pocket veto during inter and intrasession adjournments. In his first term President Reagan abided by Kennedy v. Sampson to the extent that he did not use the pocket veto during intrassession adjournments.74 Twice, however, he attempted to pocket veto bills during intersession adjournments even though both House had authorized officers to receive Presidential messages. His use of the pocket veto is being challenged in court.

Barnes v. Kline, 75 concerns the President's assertion that he pocket vetoed a bill relating to El Salvador. On November 18, 1983 the House adjourned sine die at the end of the first session of the 98th Congress. The House returned on January 23, 1984, nine weeks later, to begin the second session. On November 30, 1983 the President withheld his approval of a bill requiring certification of human rights practices in El Salvador 76 and claimed to have pocket vetoed it.77 Thirty-three members of the House, led by Representative Barnes, Chairman of the Foreign Affairs Subcommittee on Western Hemisphere Affairs, filed suit asking that the bill be published as a public law. On March 9, 1984, the district court ruled against the Members of the House.78 But, on August 29, 1984, Judges Robinson and McGowan of the U.S. Court of Appeals, D.C. Circuit, overturned that decision, Judge Bork dissenting.79 The matter is pending before the U.S. Supreme Court in the case now styled Burke v. Barnes.

QUESTIONS ABOUT PROCEDURES GOVERNING RECONSIDERATION OF

VETOED ITEMS

Existing rules and precedents do not specify the procedures by which Congress would reconsider an item returned with the President's objections. Proposed legislation to grant the President authority to veto items typically does not explain in detail how vetoed items would be reconsidered. Most proposed constitutional amendments on this subject require the President to return disapproved appropriations or provisions to Congress with his objections. The following language is then added: "The Congress may, in the manner prescribed under section 7 of Article I for Acts disapproved by the President, reconsider any item of appropriation disapproved under this Article." 80 Many issues need to be explored, however, because procedures for the reconsideration of vetoed bills do not seem applicable in all respects to the reconsideration of vetoed items. Even where applicable, procedures for the reconsideration of vetoed bills may not be best suited to special problems created by the reconsideration of vetoed items.

74 Wkly Comp. Pres. Doc., XX, 1196-97 (August 29, 1984).

75 Barnes v. Kline, 759 F.2d 21 (D.C. Cir. 1985) petition for cert. filed, 54 U.S.L.W. 3346 (U.S. Nov. 5, 1985).

76 H.R. 4043, 98th Congress.

77 129 Cong. Rec. H10663 (daily ed. December 14, 1983). Wkly Comp. Pres. Doc., XIX, 1627-28 (November 30, 1983).

78 582 F. Supp. 163 (D.C. Cir. 1984).

79 759 F.2d. 21 (D.C. Cir. 1985).

80 H.J. Res. 57, 99th Congress and S.J. Res. 11, 99th Congress.

There are no precedents directly on the reconsideration of vetoed items so this section is largely speculative and exploratory. There is no attempt made "to prejudge a ruling of the Chair or a parliamentary opinion" 81 but precedents that seem applicable to a hypothetical situation are cited. Unless otherwise specified, the discussion assumes an item veto by which the President can strike provisions or amounts in appropriation bills but which does not permit him to reduce amounts.

RETURN OF DISAPPROVED ITEMS

Suppose the President approves some items but disapproves several other items in the same appropriation bill. How are the vetoed items to be packaged? Must the President include all disapproved items from the same bill in a single veto message? Must he provide a separate message for each vetoed item? Does he have the discretion to package items in as many or as few messages as he wishes? In the states where the executive has item-veto authority, the bill is returned to the legislature with all the vetoed items included in one message. It would seem that the President would also be required to return all the vetoed items in a single message. One message per bill is, pragmatically speaking, the best approach. How would Congress determine that it has received the last vetoed item if the President sends a separate message for each item or if the President packages the vetoed items as he pleases? The practical difficulties abound.

The power to package, however, would be a tremendous advantage for the President. When he submits all the items he disapproves in one message, he has a powerful motive to limit the items he vetoes. The more items the President includes in one veto message, the more he invites an override. The more items vetoed, the wider the range of interests affected and the more likely that a sufficient number of disgruntled legislators will coalesce on the vote to override the veto.

If the President could package his vetoes as he chooses, he would have a better chance to be sustained. Giving the President that discretion, however, would be granting extraordinary creative legislative power far removed from the "qualified negative" the Constitution envisages.

It will be assumed for the rest of this section that the President would continue to send one veto message for each bill he vetoes.

RECONSIDERATION OF VETOED ITEMS IN THE HOUSE

Are the rules and precedents governing reconsideration of vetoed bills appropriate to govern reconsideration of vetoed items? In debate on a single message containing objections to several items,

81 Representative Foley, arguing that Members should not vote to defeat the previous question, said:

While obviously none of us has the ability to prejudge a ruling of the Chair until it is made or a parliamentary opinion until it is given, I think it is clear that any presiding officer of either party-and any Member of this House, irrespective of his or her opinion on this issue, would be required under the precedents, traditions, and rules of the House to decide that an attempt to amend the bill with a resolution providing for a constitutional amendment is not germane and not within the rules of this body. 130 Cong. Rec. H10938 (daily ed. March 20, 1984).

is the question divisible? Are the motions in order when the question on reconsideration of vetoed bills is debated appropriate to the reconsideration of vetoed items?

Form of the question

When a veto message is laid before the House the question on passage is pending and a motion from the floor is not required. The form of the question for a vetoed bill is: Will the House, on reconsideration, pass the bill, the objections of the President to the contrary notwithstanding? Presumably, the form of the question would change if an item veto is employed because parts of the bill (namely, those items already approved by the President) are not before the House. The form of the question affects the divisibility of the question.

Divisibility

Assuming that the President returns several disapproved items in a single message, may the House vote and debate separately on each item or any item? As noted above, the legislative prerogative to package items is at the heart of the item-veto issue.

The rules and precedents concerning division of the question suggest that changes in the Rules of the House would be required to demand a separate vote on individual items. The Rules of the House 82 provide that the question, if it is divisible, will be divided on the demand of any Member. A question is divisible if and only if there is more than one substantive proposition contained.83 A question is not divisible when any of the separate parts would not stand as a substantive proposition if enacted alone. 84 The rules and practices of the House in respect to division of questions, however, do not apply to the question on engrossment and third reading and on passage of a bill.85 In voting on passage of a bill, a separate vote on the several propositions in the bill may not be demanded.86 Unless division of the question on reconsideration of vetoed items is provided for by amendment to the Rules of the House, it would appear that the question may not be divided.

There are no precedents for division of a question on passage on reconsideration. The House, however, did adopt a rule to provide for separate votes on items in an appropriation bill by calling for a division on the question of engrossment and third reading. On February 25, 1846, the House adopted a rule permitting any Member to demand a division on the question of engrossment of certain appropriation bills so as to provide a separate vote on each or any item of appropriation: 87

Mr. I.E. HOLMES, from the Select Committee on Rules, to which was referred, on the 27th December last, the following proposed amendment to the rules and orders of the House-viz:

"That upon the engrossment of any bill making appropriations of money for works of internal improvement of any kind or description, it shall be in the power

82 Clause 6, Rule XVI, Rules of the House of Representatives, 99th Congress.

83 5 Hinds' Precedents §§ 6114-6118 (1907) and 8 Cannon's Precedents §§ 3163-64 (1936). See also, House Rules and Manual § 792 (1983).

84 5 Hinds' Precedents §§ 6108-6113 (1907) and 8 Cannon's Precedents § 3165 (1936).

85 5 Hinds' Precedents $6144 (1907) and 8 Cannon's Precedents §3172 (1936).

86 5 Hinds' Precedents §§ 6145-49 (1907) and 8 Cannon's Precedents §3172 (1936).

87 Cong. Globe, 29th Cong., 1st Sess. (1846).

of any member to call for a division of the question, so as to take a separate vote of the House upon each item of improvement or appropriation contained in said bill, or upon such items separately, and others collectively, as the member making the call may specify; and if one-fifth of the members present second said call, it shall be the duty of the Speaker to make such divisions of the question, and put them to vote accordingly”—

Reported the same without amendment, and recommended its adoption as one of the standing rules of this House.

*

Mr. BOYD put an inquiry to the Chair, which, so far as it could be heard by the reporter, was, whether, under the rule recently adopted, it would be in order, after the amendments had been agreed to separately, to take up the bill regularly, and call for a vote on these items.

There was great noise in the Hall.

The SPEAKER said, if gentlemen would pay a little more attention, and would keep better order, the matters before the House could be much more satisfactorily understood by them.

The SPEAKER continued: The Chair will take this opportunity to make an explanation in regard to the operation of the new rule. But first, with the indulgence of the House, the Chair will have the rule read.

And it was read, as follows:

"That upon the engrossment of any bill making appropriations of money for works of internal improvement of any kind or description, it shall be in the power of any member to call for a division of the question, so as to take a separate vote of the House upon each item of improvement or appropriation contained in said bill, or upon such items separately, and others collectively, as the member making the call may specify; and if one-fifth of the members present second said call, it shall be the duty of the Speaker to make such divisions of the question, and put them to vote accordingly."

The SPEAKER continued: The Chair considers the bill under consideration a bill for internal improvements of some kind or character. It comes, therefore, within the rule.

In the next place, the Chair rules, that when the bill comes to be engrossed, any gentleman may call for a division of any one item. If one-fifth of the members shall second the motion, the division will be ordered, and then, as usual, the yeas and nays may, on the demand of one-fifth, be also ordered.

As regarded the point raised by Mr. Boyd

The SPEAKER (yielding his first impression as to the effect of the rule) said, after reflection and after consultation with experienced members, (for there are no precedents to refer to,) the Speaker is of opinion that when the bill comes up on the question of engrossment, it will be competent to call for a division, and to take a vote upon amendments now being acted upon.

Some further conversation on the construction of the rule followed, in which Messrs. Hamlin, P. King, G.W. Jones, and the Speaker, participated.

The House then proceeded with the main question.

The rule was invoked on March 19, 1846 when the river and harbor bill was passed to be engrossed: 88

The SPEAKER said the question would be on the engrossment of the bill. It would be read by items, and gentlemen would name such of them as they wished to take separate questions upon.

The Clerk proceeded to read the bill.

LITTLE SODUS BAY

Mr. BOYD demanded a separate question on the following item:

"For the improvement of Little Sodus bay, on Lake Ontario, five thousand dollars."

And one-fifth of the members present having seconded the demand, the division was ordered.

Mr. BOYD asked the yeas and nays; which (after a brief conversation) were also ordered.

88 Cong. Globe, 29th Cong., 1st Sess. (1846), pp. 527-28.