High Court to Rule on Use of Pocket Veto : 27 Presidents Have Employed Historic Method to Kill Legislation

The Supreme Court, moving to resolve a constitutional impasse between the Reagan Administration and members of Congress, said Monday that it will decide when the President may exercise a “pocket veto” to kill legislation he opposes.

The justices will hear a Justice Department appeal of a lower court ruling that found that President Reagan had illegally used the historic device to invalidate a bill Congress passed in 1983 conditioning aid to El Salvador on progress in human rights.

The U.S. Circuit Court of Appeals here ruled that the President could use the pocket veto only when Congress adjourns every two years for elections and not during other recesses. Beginning with President Thomas Jefferson, 27 presidents have exercised the pocket veto more than 200 times during vacations or recesses between sessions of the same Congress, according to the Justice Department.

Point of Legal Standing

In another important aspect of the case, the justices will review the Administration’s contention that members of Congress lack the legal standing to bring suit in federal court to challenge actions by the President.

Such challenges by legislators asserting a variety of grounds have been increasingly common in recent years. Congressional standing to bring suit is among the issues before the court in a pending case testing the constitutionality of the Gramm-Rudman budget-balancing law.

A ruling in the pocket veto case (Burke vs. Barnes, 85-781) is expected in early 1987.

In another case with potentially wide impact, the court said it would settle a question resulting from its 1983 ruling invalidating the “legislative veto,” a device included by Congress in scores of laws to enable it to overturn actions by executive and regulatory agencies.

Many Remain on Books

In the new case (Alaska Airlines vs. Brock, 85-920), the justices will decide when the balance of a law can be saved by simply excising any invalid veto provision. Since the 1983 ruling, many laws have been re-enacted without veto provisions, but countless others still remain on the books.

The pocket-veto case emerged from a legal challenge to President Reagan by Rep. Michael D. Barnes (D-Md.) and 32 other Democratic members of the House.

The Constitution provides that a bill passed by Congress becomes law unless the President vetoes it by returning it to Congress unsigned within 10 days--”unless the Congress by their adjournment prevent its return, in which case it shall not be a law.” Thus a President effectively kills a bill by “pocketing” it when Congress’ adjournment keeps him from formally returning it and giving the legislators a chance to override the veto.

Human Rights Record

The legislation that Reagan blocked through the pocket veto would have required him to certify that the Salvadoran government had improved its human rights record before it could receive more U.S. aid in the fiscal year ending Sept. 30, 1984.

Congress sent the measure to Reagan in November, 1983, shortly before adjourning at the end of the first session of the 98th Congress. The President neither signed it nor returned it with a veto message.

The 33 Democrats filed suit in January, 1984, contending that the President’s pocket veto was invalid. The appellate ruling in August, 1984, came too late to block the aid and the legislation expired.

In other actions, the high court:

--Over a dissent from Justice Sandra Day O’Connor, refused to hear an appeal from television newscaster Christine Craft seeking reinstatement of a $325,000 jury verdict in her sex discrimination and fraud suit against a Kansas City television station. Four votes are required for formal review (Craft vs. Metromedia, 85-1053).

--Left intact the conviction of former Rep. George V. Hansen (R-Ida.), who faces a prison term of 5 to 15 months and fine of $40,000 for filing false documents with Congress (Hansen vs. U.S., 85-973).

--Ending an 18-year legal battle, refused to review a multimillion-dollar legal malpractice judgment against a former lawyer for actress Doris Day and her late husband Marty Melcher (Rosenthal vs. Day, 85-1205). The justices declined to hear contentions by attorney Jerome Rosenthal that he was denied due process when a trial judge found that he had acted improperly in handling investments by the couple. Day settled for $6 million with Rosenthal’s insurance companies.

--Agreed to decide whether national banks may establish discount securities brokerage outlets wherever they want. The court said it will hear appeals by the Reagan Administration and banks pressing for unrestricted expansion into the business of selling stocks and bonds. No decision is expected before next year.