USSC in 1938 (below) ruled Bush's type pocket veto ineffective - well Dems not challenge?

http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?friend=nytimes&court=us&vol=302&invol=583

U.S. Supreme Court
WRIGHT v. UNITED STATES, 302 U.S. 583 (1938)
302 U.S. 583

WRIGHT
v.
UNITED STATES.
No. 37.
DL Argued Nov. 16, 1937.
Decided Jan. 17, 1938.


<302 U.S. 583, 584> Mr. Ashby Williams, of Washington, D.C., for petitioner.

Mr. Sam E. Whitaker, Asst. Atty. Gen., for the United States.


<302 U.S. 583, 585>

Mr. Chief Justice HUGHES delivered the opinion of the Court.

The question is whether Senate Bill 713, 74th Congress, 1st session, which was passed by both Houses of Congress, became a law.

The bill was presented to the President of the United States on Friday, April 24, 1936. It had originated in the Senate. On Monday, May 4, 1936, the Senate took a recess until noon, Thursday, May 7, 1936. The House of Representatives remained in session. On May 5, 1936, the President returned the bill with a message addressed to the Senate setting forth his objections. The bill and message were delivered to the Secretary of the Senate. When the Senate reconvened on May 7, 1936, the Secretary advised the Senate of the return of the bill and the delivery of the President's message. 1 On the same day <302 U.S. 583, 586> the President of the Senate laid before it the Secretary's letter and the message of the President of the United States. The message was read and with the bill was referred to the Senate Committee on Claims. No further action was taken.

The bill granted jurisdiction to the Court of Claims to rehear and adjudicate petitioner's claim against the United States. Accordingly, on September 14, 1936, petitioner presented his petition to the Court of Claims. The Government opposed the petition upon the ground that the bill had never become a law and the Court of Claims denied the petition. In view of the importance of the question certiorari was granted. 301 U.S. 681 , 57 S.Ct. 939

The applicable provisions of the Constitution are found in article 1 , 7, par. 2, which provides: 'Every Bill which shall have passed the House of Representatives and the Senate, shall, before it becomes a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by Yeas and Nays, and the Names of the Persons voting for and against the <302 U.S. 583, 587> Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.'

1. The first question is whether 'the Congress by their adjournment' prevented the return of the bill by the President within the period of ten days allowed for that purpose.

'The Congress' did not adjourn. The Senate alone was in recess. The Constitution creates and defines 'the Congress.' It consists 'of a Senate and House of Representatives.' Article 1, 1. The Senate is not 'the Congress.'
The context of the clause itself points the distinction. It speaks of the 'House of Representatives' and of the 'Senate,' respectively. It speaks of the return of the bill, if the President does not approve it, 'to that House in which it shall have originated'; of reconsideration by 'that House,' and, in case two thirds of 'that House' agree to pass the bill, of sending it together with the President's objections to the 'other House' and, if approved by two thirds of 'that House,' the bill is to become a law. Provision is made for the taking of the votes of 'both Houses' and for the recording of the names of those voting for and against the bill on the Journal 'of each House respectively.'

Then, after this precise use of terms and careful differentiation, the concluding clause describes not an adjournment of either House as a separate body, or an adjournment of the House in which the bill shall have originated, but the adjournment of 'the Congress.' It cannot be supposed that the framers of the Constitution did not use this expression with deliberation or failed to appre- <302 U.S. 583, 588> ciate its plain significance. The reference to the Congress is manifestly to the entire legislative body consisting of both Houses. Nowhere in the Constitution are the words 'the Congress' used to describe a single House.

To disregard such a deliberate choice of words and their natural meaning would be a departure from the first principle of constitutional interpretation. 'In expounding the Constitution of the United States,' said Chief Justice Taney in Holmes v. Jennison, 14 Pet. 540, 570, 571, 614, 'every word must have its due force, and appropriate meaning; for it is evident from the whole instrument, that no word was unnecessarily used, or needlessly added. The many discussions which have taken place upon the construction of the constitution, have proved the correctness of this proposition; and shown the high talent, the caution, and the foresight of the illustrious men who framed it. Every word appears to have been weighed with the utmost deliberation, and its force and effect to have been fully understood.' See, also, Martin v. Hunter's Lessee, 1 Wheat. 304, 333, 334; Ogden v. Saunders, 12 Wheat. 213, 316; Myers v. United States, 272 U.S. 52, 151 , 47 S.Ct. 21, 37; Williams v. United States, 289 U.S. 553, 572 , 573 S., 53 S.Ct. 751, 757.

The argument addressed to the word 'their' in the phrase 'the Congress by their adjournment,' is futile. The argument is that the use of the plural would not be unusual or inappropriate if the reference were to a single House. There is no question that both singular and plural forms are used in the Constitution with reference to each House separately. See article 1, 3, pars. 2, 4, 5, 6; Article 1, 5, pars. 1, 2, 3. The plural is used in the phrase 'their Journal' in the paragraph under consideration. But the question is not whether the use of the plural is inappropriate in referring to a single House or its members. It is sufficient to say that there is certainly no inappropriateness in the use of the <302 U.S. 583, 589> plural in relation to 'the Congress' as composed of both Houses, and that use in no way changes the significance of that term.

The phrasing of the concluding clause is entirely free from ambiguity, and there is no occasion for construction.

2. The argument to the contrary rests upon the premise that a bill cannot be returned by the President to the House in which it originated when that House during the session of Congress is in recess, and hence that the concluding clause of paragraph 2 of section 7 of Article 1, referring to an adjournment by the Congress, should be rephrased by judicial construction in order to deal with that situation. We think that the premise is faulty and the rephrasing inadmissible.

Paragraph 4 of section 5 of article 1 provides: 'Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.'

It will be observed that this provision is for a short recess by one House without the consent of the other 'during the Session of Congress.' Plainly the taking of such a recess is not an adjournment by the Congress. The 'Session of Congress' continues.