Lost in all the tributes to the late Sen. Edward M. Kennedy is the role he played asserting congressional prerogatives and curbing presidential power in the early 1970s, by limiting chief executives' ability to employ what has come to be known as the pocket veto.
Recall from civics class that the Constitution gives the president 10 legislative days (excluding Sundays) to sign a bill into law or return it to Congress. Bills that are neither approved or vetoed after 10 days automatically become law. But if Congress adjourns before the 10 days pass and the president has not yet signed the bill, the bill dies, forcing Congress to start over in its next legislative session, if it wants to try again. Taken literally, the president "pocketed" the bill rather than acted on it.
Since the pocket veto is a classic passive-aggressive behavior and doesn't require direct action, it has become a periodic source of friction between the branches, usually because the president and Congress can't agree over what precisely constitutes "adjourment." Such was the case during President Richard M. Nixon's first term, when he pocket vetoed a bill that would have provided funds for medical training during the six-day Christmas recess in 1970, arguing that the short recess was akin to an adjournment sine die, marking the end of a two-year session.
Congress had passed the bill unanimously and arguably would have overriden a regular veto had it been give a chance. However, Nixon, then in the midst of an effort to cut federal health programs, didn't offer such an option, announcing Dec. 26 that he had killed the bill.
Kennedy and other congressional Democrats quickly claimed Nixon had misused his powers. In a letter to the Justice Department, Kennedy asserted the pocket veto was not intended to apply to brief adjournments. But his argument was rejected by then-Assistant Attorney General and future Chief Justice William H. Rehnquist, who said Nixon's actions conformed to judicial precedents.
Kennedy filed suit, contending there had been no adjournment, and that the bill could have been return-vetoed. Both the federal district court and federal court of appeals for the District of Columbia agreed and ruled the veto unconstitutional, on the grounds that Congress had named appropriate agents to be on hand to receive possible veto messages. The Nixon administration declined to appeal to the Supreme Court.
Kennedy also figured in a similar lawsuit after President Gerald R. Ford declared a pocket veto against a bill passed just before the intersession break of the 93rd Congress. In that case, the appellate court overturned a lower court decision and ruled that the pocket veto cannot be used except after adjournment sine die, as long as both chambers appoint agents to receive veto messages. The Ford administration abided by the ruling.
Of course, Kennedy less than a decade later would attempt to get on the other side of this power struggle, by unsuccessfully running for president in 1980.
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