Burke v. Barnes

LOCATION: Oglala Sioux Tribe

DOCKET NO.: 85-781
DECIDED BY: Rehnquist Court (1986-1987)
LOWER COURT: United States Court of Appeals for the District of Columbia Circuit

CITATION: 479 US 361 (1987)
ARGUED: Nov 04, 1986
DECIDED: Jan 14, 1987

Morgan J. Frankel - on behalf of Respondents
Richard K. Willard - on behalf of the Petitioners

Facts of the case


Media for Burke v. Barnes

Audio Transcription for Oral Argument - November 04, 1986 in Burke v. Barnes

William H. Rehnquist:

We will hear arguments next in Burke against Barnes.

Mr. Willard, you may proceed whenever you're ready.

Richard K. Willard:

Thank you, Mr. Chief Justice, and may it please the Court:

As this Court recognized in its unanimous opinion The Pocket Veto Case, the term "pocket veto" is something is a misnomer because it implies an affirmative act on the part of the President.

In fact, the pocket veto arises from Presidential inaction.

If the President neither signs a bill nor returns it to Congress with his objections within 10 days, Sundays excepted, followed presentment, the last sentence of Article I, Section 7, Clause 2, spells out what happens.

It says,

"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. "

On November 18, 1983, Congress did two things.

It presented H. R. 4042, an enrolled bill, to the President.

And it adjourned its first session sine die.

H.R. 4042 was met with Presidential inaction.

The President neither signed it nor returned it to Congress with his objections.

This suit was brought by the Congressional respondents to obtain a declaratory judgment that by operation of Article I, Section 7, Clause 2, H.R. 4042 became a law just as if the President had signed it.

Now, it's important to recognize at the very outset that H.R. 4042 would have expired by its own terms on September 30th, 1984, one month after the judgment of the Court of Appeals was entered in this case, and more than six months before their opinions were filed.

The question of mootness ties in to the question of whether the Congressional respondents have standing on any theory to maintain this suit for declaratory relief.

I should point out, however, that we have no doubt of the power of the courts to decide the meaning of the Pocket Veto Clause in a real case or controversy.

A person with legal rights under H.R. 4042 could sue to enforce those rights, and in the process, obtain a judicial determination as to whether or not 4042 is or is not a law.

Such were the claims of the plaintiff Indian tribes in The Pocket Veto Case, or the individual claimant in Wright v. United States.

Here, however, we have a completely different basis for standing asserted by the Congressional respondents.

They claim no substantive rights under H.R. 4042.

Instead, their claim is that the failure of the executive branch to regard H.R. 4042 as a law has nullified their votes, thus creating judicially cognizable injury.

Now there are two different ways that this injury of nullification has been explained.

The original theory of the case was that the President nullified the votes of the Congressional respondents when he failed to carry out the substantive revisions of H.R. 4042, when he provided military aid to El Salvador without filing the requisite certifications about progress on human rights.

Now it's certainly clear that that theory of standing is completely moot, because H.R. 4042 has expired, and the law governing military aid to El Salvador is completely different, and is not affected by whether or not H.R. 4042 did or did not become a law.

John Paul Stevens:

May I just ask you on that, what about the argument they make about some auditing consequences about whether compliance with the bill would have had fiscal consequences?

Richard K. Willard:

Justice Stevens, it's our view that these collateral consequences, or asserted collateral consequences, do not involve the parties before the Court in this case, and thus, do not provide a basis for avoiding mootness; that the dispute would involve the Secretary of State, allegedly, or the Controller General, neither of whom are parties here.

And there's no indication that the Congressional respondents would be proper parties in that kind of a case.

In any event, that kind of a collateral lawsuit, which we don't think is a basis for the... for a case here, would be one in which Congress would not have standing as well, because it would be a dispute over execution of the law.

That's the problem, of course, with their broad theory as well.