In an earlier chapter it has been pointed out that the foregoing provisions have no application to amendments to the Constitution proposed by Congress to the States for their approval or disapproval.

§ 254. Resolutions.

In the Fifty-fourth Congress, 2d Session, the Senate Committee on the Judiciary was requested to report whether a certain resolution mentioned in a law should be in the form of a "joint resolution," and whether it was necessary that "concurrent resolutions" should be submitted to the President of the United States.

In its report the committee, while admitting that Clause 3, Section VII of Article I of the Constitution, literally applied, would make it necessary that every joint or concurrent resolution of Congress, whatever its substance or intent, would have to be submitted to the President for his approval, go on to say that the Constitution must look beyond the mere form of a resolution, to its subject-matter, and that the words "to which the concurrence of the Senate and House of Representatives may be necessary are to be construed to relate only to matters of legislation to which the concurrent action of both Houses is by the Constitution made absolutely necessary; in short, only to legislative measures. Thus, in general, joint resolutions need to be sent to the President; concurrent resolutions do not. Of these latter the committee say: "For over a hundred years they have never been so presented. They have uniformly becn regarded by all the Departments of the Government as matters peculiarly within the province of Congress alone. They have never embraced legislative decisions proper, and hence have never been deemed to require executive approval. This practical construction of the Constitution, thus acquiesced in for a century, must be deemed the true construction with which no court will interfere."

§ 255. Parts of Bills May not Be Vetoed.

In those States whose Constitutions have not expressly given the executive the power to approve parts, and disapprove the

remainder of bills, it has been uniformly held that he has not the power. When, however, he has attempted to do so, the decisions have been in conflict as to whether such partial approval is no approval at all and amounts to a veto, or whether the entire measure is to be treated as approved, the disapproval of the parts being considered a nullity.s

§ 256. Riders.

The federal Executive has never attempted the exercise of, or claimed, the right to veto parts of measures submitted to him by Congress, and to approve the remainder. Because thus bound to accept or reject a bill as a whole, Congress has at times attempted to force the hand of the President by incorporating into a measure which it is known he will feel almost obligated to sign, provisions which it is believed he would disapprove if submitted to him as independent propositions. At times, however, these socalled "riders" have led to the veto of the entire bill. President Hayes returned without his approval several appropriation bills which contained legislation which was not agreeable to him. President Johnson returned the act of March 2, 1867 (Army Appropriation Bill), with his signature, but in a message of protest said: "These provisions are contained in the second section, which in certain cases virtually deprives the President of his constitutional functions as commander-in-chief of the army, and in the sixth section which denies to ten States of the Union their constitutional right to protect themselves in any emergency, by means of their own militia. These provisions are out of place in an appropriation act. I am compelled to defeat these necessary appropriations if I withhold my signature from the act.".

§ 257. May Bills Be Signed by the President after the Adjournment of Congress?

As appears from the constitutional provision which has been quoted, a measure, if not returned to Congress within ten days,

8 See Art. by Jas. D. Barnett, "The Executive Control of the Legislature," Am. Law Rev., XLI, 384.

Sundays excepted, becomes a law without the President's signature. If, however, Congress adjourns before the expiration of the ten days, the measure does not become a law and this is known as a pocket veto. The question has, however, been several times raised whether the President may not, if he desires the bill to become a law, sign after the adjournment of Congress.

In 1824 President Monroe by inadvertence failed to sign a bill before the adjournment of Congress and the question was discussed by his Cabinet as to his right to sign, notwithstanding the adjournment. Some difference of opinion being manifested, the President decided not to sign.

In 1863 President Lincoln signed a bill eight days after Congress had adjourned. At the next session of Congress the Judiciary Committee of the House, having been instructed to consider the constitutionality of this, unanimously reported that the bill was not a law. No action was taken by the House upon this report, but later substantially the same measure was re-enacted by Congress and signed by the President. The committee, in its report referred to, said: "The ten days' limitation

re

fers to the time during which Congress remains in session, and has no application after adjournment. Hence if the Executive can hold a bill ten days after adjournment and then approve it, he can as well hold it ten months before approval. This would render the laws of the country uncertain and could not have been intended by the framers of the Constitution. The spirit of the Constitution evidently requires the performance of every act necessary to the enactment and approval of laws to be perfect before the adjournment of Congress."9

9 In United States v. Weil (29 Ct. of Cl. 523) the Court of Claims held that the Supreme Court had impliedly upheld the earlier act, signed after adjournment, by passing upon claims arising under it. However, it is to be observed that the act was valid upon its face, and the point as to the date of its signature was not raised, and the court was not obliged to take judicial cognizance of it.

Professor Barnett in an article in the Am. Law Rev., XLI, 230, entitled "The Executive Control of the Legislature," and Mr. Renick in an article in the same journal, XXXII, 208, entitled “ The Power of the President to Sign Bills after the Adjournment of Congress," give a full discussion of this

258. Signing of Bills During Recess of Congress.

In the Weil case the court argued that the President might sign during a recess of Congress even if he might not sign after its adjournment, and this proposition was upheld by the Supreme Court in La Abra Silver Mining Co. v. United States.10

subject. They show that the decisions of the state courts with reference to the signing of state bills by the governor after legislative adjournment are in conflict, with the balance of authority, however, in support of the practice. 10 175 U. S. 423; 20 Sup. Ct. Rep. 168; 44 L. ed. 223. “The ground of this contention is that having met in regular session at the time appointed by law, the first Monday of December, 1892, and having on the 22d of that month (two days after the presentation of the bill to the President) by the joint action of the two Houses taken a recess to a named day, January 4, 1893, Congress was not actually sitting when the President, on the 28th day of December, 1892, by signing it, formally approved the act in question. The proposition, plainly stated, is that a bill passed by Congress and duly presented to the President does not become a law if his approval be given on a day when Congress is in recess. This implies that the constitutional power of the President to approve a bill so as to make it a law is absolutely suspended while Congress is in recess for a fixed time. It would follow from this that if both Houses of Congress by their joint or separate action were in recess from some Friday until the succeeding Monday, the President could not exercise that power on the intervening Saturday. Indeed, according to the argument of counsel the President could not effectively approve a bill on any day when one of the Houses, by its own separate action, was legally in recess for that day in order that necessary repairs be made in the room in which its sessions were being held. Yet many public acts and joint resolutions of great importance, together with many private acts, have been treated as valid and enforceable, which were approved by the President during the recesses of Congress covering the Christmas holidays. In the margin will be found a reference to some of the more recent of those statutes. Do the words of the Constitution, reasonably interpreted, sustain the views advanced for appellant? . . . It is said that the approval by the President of a bill passed by Congress is not strictly an executive function, but is legislative in its nature; and this view, it is argued, conclusively shows that his approval can legally occur only on a day when both Houses are actually sitting in the performance of legislative functions. Undoubtedly the President when approving bills passed by Congress may be said to participate in the enactment of laws which the Constitution requires him to execute. But that consideration does not determine the question before us. As the Constitution, while authorizing the President to perform certain functions of a limited number that are legislative in their general nature, does not restrict the exercise of those functions to the particular days on which the two Houses of Congress are actually sitting in the transaction of public business, the court cannot impose such a restriction upon the Executive.

It is made his duty by the Constitution to examine and act upon every bill passed by Congress. The time within which he must approve or disapprove a bill is prescribed. If he approve a bill, it is made his duty to sign it. The Constitution is silent as to the time of his signing, except that his approval of a bill duly presented to him-if the bill is to become a law merely by virtue of such approval — must be manifested by his signature within ten days, Sundays excepted, after the bill has been presented to him. It necessarily results that a bill when so signed becomes from that moment a law. But in order that his refusal or failure to act may not defeat the will of the people, as expressed by Congress, if a bill be not approved and be not returned to the House in which it originated within that time, it becomes a law in like manner as if it had been signed by him. We perceive nothing in these constitutional provisions making the approval of a bill by the President a nullity if such approval occurs while the two Houses of Congress are in recess for a named time. After the bill has been presented to the President, no further action is required by Congress in respect of that bill, unless it be disapproved by him and within the time prescribed by the Constitution be returned for reconsideration. It has properly been the practice of the President to inform Congress by message of his approval of bills, so that the fact may be recorded. But the essential thing to be done in order that a bill may become a law by the approval of the President is that it be signed within the prescribed time after being presented to him. That being done, and as soon as done, whether Congress is informed or not by the message from the President of the fact of his approval of it, the bill becomes a law, and is delivered to the Secretary of State as required by law. Much of the argument of counsel seems to rest upon the provision in relation to the final adjournment of Congress for the session whereby the President is prevented from returning, within the period prescribed by the Constitution, a bill that he disapproves and is unwilling to sign. But the Constitution places the approval and disapproval of bills, as to their becoming laws, upon a different basis. If the President does not approve a bill, he is required within a named time to send it back for consideration. But if by its action, after the presentation of a bill to the President during the time given him by the Constitution for an examination of its provisions and for approving it by his signature, Congress puts it out of his power to return it, not approved, within that time to the House in which it originated, then the bill falls, and does not become a law. Whether the President can sign a bill after the final adjourn ment of Congress for the session is a question not arising in this case, and has not been considered or decided by us. We adjudge-and touching this branch of the case adjudge nothing more - that the act of 1892 having been presented to the President while Congress was sitting, and having been signed by him when Congress was in recess for a specified time, but within ten days, Sundays excepted, after it was so presented to him, was effectively approved, and immediately became a law, unless its provisions are repugnant to the Constitution."