ROBAMA: Is It OK for a President to Autopen a Bill Into Law?

May 27, 2011 12:27pm

With the Patriot Act set to expire last night, President Obama signed legislation extending it – from France — as first reported by ABC News. How did he do that? Using an autopen, of course. Is that allowed? Article 1, section 7 of the United States Constitution states: “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…” It needs to be “presented” to him, and if he approves it “he shall sign it.” White House spokesman Nick Shapiro seemed to suggest this was a special circumstance. "Failure to sign this legislation posed a significant risk to U.S. national security,” Shapiro said. “The President directed the use of the autopen to sign it." Rep. Tom Graves, R-Ga., wrote to the president today questioning whether an autopen is good enough. “Mr. President, I write to request your confirmation that S. 990, as passed by Congress, was presented to you prior to the autopen signing, as well as a detailed, written explanation of your Constitutional authority to assign a surrogate the responsibility of signing bills passed by Congress into law,” Graves wrote. To reporters, Graves said the autopen move set a “dangerous precedent.” What if the president is hospitalized and not fully alert, he asked. “Can a group of aggressive Cabinet members interpret a wink or a squeeze of the hand as approval of an autopen signing?” The Senate’s top Republican Mitch McConnell of Kentucky was asked at a press conference just now if he thought that the use of the autopen would pass legal muster. “I think that’s a better question addressed to them,” McConnell said. “They did the research and their lawyers apparently advised them that this was permissible. I haven’t looked at the legality of it and therefore don’t have an opinion to express on it.” In 2005, President George W. Bush was told by his Office of Legal Counsel in the Department of Justice that he could use an autopen given “the legal understanding of the word ‘sign’ at the time the Constitution was drafted and ratified and during the early years of the Republic. We find that, pursuant to this understanding, a person may sign a document by directing that his signature be affixed to it by another.” This, the OLC found, was supported by opinions of the Attorney General and the Department of Justice “addressing statutory signing requirements in a variety of contexts. Reading the constitutional text in light of this established legal understanding, we conclude that the President need not personally perform the physical act of affixing his signature to a bill to sign it within the meaning of Article I, Section 7… “We emphasize that we are not suggesting that the President may delegate the decision to approve and sign a bill, only that, having made this decision, he may direct a subordinate to affix the President’s signature to the bill.” Bob Olding, president and CEO of Damilic Corp., which owns the autopen trademark, told ABC News that there is nothing super high-tech about the devices, which range in price from $2,000 to $10,000. “They’re not technical marvels,” Olding said. “There’s nothing particularly leading edge. They started going into production in the ’30s. It’s based on these simple, well-established mechanical concepts.” Olding said that “Thomas Jefferson is credited with being the inspiration. If you look at what he’s got and look at one of our machines, you might make the connection. But Jefferson’s device was more a duplicator – he would sign and then a set of levers would sign another at the same time.”   
Image from Monitcello “The classic autopen is a combination of levers and it has a wheel inside that is like a cam, has lobes on it, and it pushes these levers as it turns and they in turn direct the motion of the pen.”  
 Image from Damilic There are security concerns, Olding said.  “We won’t sell to just anybody,” he said. “We get customers who call us up and have a sense of urgency and a big sense of importance… and they scare us. We get people who we’re pretty sure are up to no good. … We’re just terrified that somebody might use our machines the wrong way so we try to be very careful…” The use of autopens has generated controversy in the past. In 2004, then-Secretary of Defense Donald Rumsfeld was criticized for using an autopen to sign condolence letters to the families of fallen troops. Then there’s this exchange from "This Week with David Brinkley" on September 13, 1992: SAM DONALDSON: The columnist Jack Anderson in many newspapers this morning says that a man named Stephen Goot – I don't know whether I'm pronouncing it correctly –
 
Vice Pres. QUAYLE: I don't know.
 
Mr. DONALDSON: – is someone who was a GOP contributor several years ago, went to prison and you intervened to get him sent to a minimum security prison. Is that the – is that correct?
 
Vice Pres. QUAYLE: I read the article this morning. Someone from my staff asked me about it during this week. I just do not know.
 
Mr. DONALDSON: What do you mean, sir, you don't know?
 
Vice Pres. QUAYLE: I don't know the man. According to the article, he – I think he suggested that he might have been at one of my fundraisers. I just don't know.
 
Mr. DONALDSON: Are you saying you did not do what Anderson claims you did?
 
Vice Pres. QUAYLE: No, I'm – I – no, he – there's evidently some letter that went out with my name attached to it asking for this gentleman, according to the article and what I've been told.
 
Mr. DONALDSON: Do you sign your mail?
 
Vice Pres. QUAYLE: When I was in the Senate, I tried to sign most of it, but some of it went out without my actual signature.
 
Mr. DONALDSON: So you mean a staff person –
 
Vice Pres. QUAYLE: They call it an "autopen." I just – Sam, I just don't know. UPDATE: Former Bush White House press secretary Ari Fleischer says President Bush’s White House did solicit the opinion of the Office of Legal Counsel in 2005 about the use of the autopen to sign legislation but he never used it. “When necessary, the actual bills were flown to him accompanied by someone from the staff secretary's office for his live signature,” Fleischer recalls. “Thought was given to using the autopen on a ‘minor’ piece of legislation to establish a precedent in case there was ever a legal challenge.  However, it was never done.” Fleischer says, “I think the Obama Administration is on solid ground, but they are taking somewhat of a risk that the autopen will be challenged in court. Using it for the first time on major legislation carries some risk.” He adds that he “love(s) the irony of the Obama White House now following Bush's OLC opinions, but that's a different matter.” — Jake Tapper and Devin Dwyer

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