The government shutdown has already caused significant hardship — and promises more. Many federal employees missed their first paychecks Friday, and negotiations to reopen the government are stalled. Meanwhile, President Trump has been musing about declaring a national emergency to push ahead with construction of a wall on the U.S.-Mexico border, even if Congress won’t agree to provide money for the project.
There’s a better way out of the standoff, one that would let both the president and Congress end the shutdown without betraying their political constituencies.
When it comes to legislation passed by Congress and sent to the president, the framers of the Constitution provided three options: The president can sign it, in which case it becomes law. The president can veto it, in which case it fails, unless Congress overrides the veto. Or a bill can become law through presidential inaction. Article I, Section 7 of the Constitution lays out the president’s role in legislation, including this provision: “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 signed it.” (Section 7 is associated with a better-known practice, the pocket veto. In that case, if the president receives a bill but Congress adjourns during the 10-day period while the legislation awaits a signature, the legislation fails.)
The new Democratic-led House of Representatives has already passed a series of bills that would end the shutdown and punt more contentious decisions about border security to future negotiations. The legislation is nearly identical to bills passed in the Senate before Christmas — “exactly, word for word ” the same, according to House Speaker Nancy Pelosi (D-Calif.). Senate Majority Leader Mitch McConnell (R-Ky.) hasn’t brought them up for a vote, saying there’s no point in passing bills Trump won’t sign.
But McConnell could bring the House spending legislation to the Senate, and if it passed there, the president could allow it to become law in 10 days without shouldering the potential political liability of appearing to endorse it.
It may sound far-fetched. But this is not some esoteric procedure never before employed. The government did not begin keeping count of the bills that become law without a president’s signature until 1945, according to a Ford administration memo, but the practice’s roots run deep. While James Buchanan was the first president to use it, in the 1850s, presidents considered employing the non-signature clause from the country’s infancy.
George Washington contemplated the option during negotiations over the Tonnage Act of 1789 . “The opposition of the Senate to the discrimination in the Tonnage Bill, was so adverse to my ideas of justice and policy,” Washington wrote, “that, I should have suffered it to have passed into a Law without my signature, had I not been assured by some members of that body, that they were preparing another Bill which would answer the purpose more effectually.”
Once Buchanan first used the practice, it became fairly common. Presidents allowed bills to become law without their signatures on 453 occasions between 1857 and 1889, according to a study conducted in 1890 by Harvard professor Edward Campbell Mason. The frequency varied wildly, from Abraham Lincoln, who did so once, to Grover Cleveland, who let a whopping 283 bills become law without his signature during his first term in office.
The Supreme Court has affirmed the practice. In Gardner v. The Collector (1867), the court wrote: “Here are two courses of action by the President in reference to a bill presented to him, each of which results in the bill becoming a law. One of them is by signing . . . and the other is by keeping it ten days, and refusing to sign it.”
Not all presidents have agreed with the approach. Lecturing in 1915, after his term as president and before his tenure on the Supreme Court, William Howard Taft voiced his disapproval of the practice. “My own judgment is that the wiser course in such a case is for the President to sign the bill, with a memorandum of his reasons for doing so, in spite of his objections,” Taft said.
Yet many of Taft’s successors disagreed, seeing the non-signature clause as a solution to predicaments precisely like the one facing Trump: a bill with many provisions that the president wanted to see enacted, mixed with some stipulations that he opposed.
Franklin D. Roosevelt, for example, agreed with most provisions of the Revenue Act of 1938 but was disappointed that the bill “abandon[ed] the accepted principle of progressive taxation.” If he signed the bill, many people would think he approved of the new tax structure, he explained in a 1938 speech. “If I veto the bill, it will prevent many of the desirable features of it from going into effect . . . I am going to take the third course which is open to me.”
Several bills also became law without Richard Nixon’s signature. When it came time to reauthorize a food assistance program in 1970, Nixon opposed the bill’s funding scheme but feared that a veto would make him look callous. “There should be no doubt about this administration’s commitment to the fight against hunger,” he said. That same year, Nixon disagreed with an infrastructure appropriations bill but argued that vetoing it would distract legislators from other “vital business.” In 1973, Nixon worried that vetoing a bill related to the Senate’s Watergate investigation would make him look bad. “I recognize that the Congress and the public would place an interpretation upon a veto which would be entirely contrary to my reasons for vetoing it,” he explained. All three bills became law without the president’s signature.
During another showdown between the president and Congress over the federal budget, the Department of Defense Appropriations Act of 1996 became law without President Bill Clinton’s signature. Clinton had argued that the bill overspent on special projects, but the White House claimed the non-signature was accidental: Clinton was in Northern Ireland when the bill’s signing window was set to expire. “Had he been here, he would have signed it,” the administration said.
Clinton said his willingness to allow the bill to become law was based on the promise that “good faith discussions” would continue with the House and the Senate to fund the federal government and avoid a government shutdown.
And in 2016, a president used the maneuver for the first time in 21 years, when President Barack Obama allowed the Iran Sanctions Act extension to become law without his signature.
This shutdown is precisely the kind of impasse where this provision is most needed. Both sides crave a way out. Trump could rely on historical precedent to argue that his action is not a capitulation: He would be joining many of his predecessors who, for more than 150 years, have relied on the Constitution to express their deep disagreements with elements of a law, even as they allowed the law and the country to move forward.
Of course, reopening the government through Article I, Section 7 isn’t a perfect solution. It would symbolize an unhealthy approach to policymaking. That Congress and the president are unable to come to terms on a package to fund the federal government is a troubling sign of dysfunction. And it’s certainly possible that some of Trump’s supporters would see the move as a tacit retreat. But that is not how the practice has been employed historically, and it offers a way out of a seemingly intractable shutdown that threatens the well-being of millions of Americans.
This article has been updated.