Promiscuous Power

It could have been called Kennedy v. Nixon, which would look catchy in the case books, but when the senior Senator from Massachusetts went to court against the President last week, he had to sue two relatively obscure bureaucrats. At issue: what Ted Kennedy called the President's "promiscuous use of the pocket-veto power."

The Constitution says that if the President takes no action on a bill for ten days after it has been presented to him by Congress, it becomes law without his signature--unless Congress is in adjournment when the ten-day period ends. In that case, if the President has done nothing, his "pocket veto" kills the bill. After a normal veto, Congress can try to organize the two-thirds majorities necessary to override the President. But pocket-vetoed legislation must start all over again as a new bill, crawling through the tortuous process of committee hearings and debate.

President Nixon used the pocket veto during a six-day Christmas break in 1970 to kill a Kennedy-backed medical-aid bill that authorized $225 million to train general practitioners. Nixon said the program was too expensive. Kennedy got Congress to appropriate money anyway, but HEW refused to spend it. Charging the Administration with derogation of the powers of Congress, Kennedy went to court to compel the two defendants to have the act officially published as law.

The pocket veto has been challenged before, but the Supreme Court in 1929 upheld its having been used during a four-month adjournment. Kennedy's suit will argue, however, that the pocket veto was designed for the long adjournments that were common in the 18th century and that it can hardly apply during a six-day break. It is rare though not unprecedented for a member of Congress to sue the Administration. But the Supreme Court, which Kennedy hopes will rule on the case by next spring, has suggested that legislators have a special status to bring suit when executive action undermines "the effectiveness of their votes."

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