The Pocket Veto That Wasn't
Congress passes a spending bill on November 20 and presents it to the President on November 22. Congress adjourns sine die on December 18 for the year; the new Congress convenes January 3. The President neither signs nor returns the bill. On December 20, the President's counsel announces the bill is dead by pocket veto. A federal agency, relying on funds in the bill, begins obligations on December 21. A taxpayer sues to block the spending, arguing the bill never became law. Separately, the President issues a signing statement declaring that a provision requiring the executive to report to Congress on drone strikes is 'advisory' and will not be followed. A House committee subpoenas the report anyway; the agency refuses to produce it, citing executive privilege and the signing statement.
1. Did the bill become law? Analyze the presentment and pocket-veto rules and the effect of the adjournment.
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Under Art. I, §7, a bill becomes law if the President signs it, or if he returns it with objections and Congress overrides by two-thirds, or if he does neither and Congress remains in session for ten days (excluding Sundays). The pocket veto applies only when Congress adjourns in a way that prevents return of the bill. The controlling case is The Pocket Veto Case (1929), which upheld a pocket veto where Congress adjourned sine die before the ten-day period ran. But Wright v. United States (1938) held that an intra-session adjournment does not create a pocket-veto opportunity, and modern practice treats only adjournments that prevent return as triggering it.
Here, the President received the bill November 22. Counting ten days excluding Sundays: Nov 22 is day 0; excluding Sundays Nov 23, 30, Dec 7, 14, the tenth day falls around December 3. Congress was still in session on December 3. Therefore the ten-day period expired while Congress could receive a return, and the bill became law without signature. The December 18 adjournment is irrelevant because it came after the period ran. The agency's obligations on December 21 are valid. The taxpayer's suit likely fails for lack of standing or because the bill is law.
2. Evaluate the legal force of the signing statement and the agency's refusal to produce the report to the House committee.
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A signing statement is not law and cannot amend or nullify a statute. The President must 'take Care that the Laws be faithfully executed' (Art. II, §3); a statement declaring a reporting requirement 'advisory' does not repeal it. Courts generally treat such statements as non-binding interpretive commentary, and the provision remains enforceable. The agency's refusal must instead rest on a recognized privilege.
Executive privilege is a qualified, presumptive privilege (United States v. Nixon), strongest for confidential deliberations and weakest for information Congress needs to perform its legislative functions. Here the report concerns drone strikes and oversight of a program Congress funds, which strengthens the committee's need. Congress's subpoena power is broad (McGrain v. Daugherty) but must serve a legitimate legislative purpose. The agency should assert a specific privilege (deliberative process or national security) over particular redactions rather than a blanket refusal based on the signing statement. A blanket refusal invites a contempt citation and a civil suit; courts would likely order production of the report with narrowly tailored redactions, because the signing statement provides no independent legal basis to withhold it.