The news has circulated that President Obama has used an autopen to sign the recent extension of various provisions of the USA PATRIOT Act (yes, it’s an acronym). While presidents have used autopens for ages to have documents signed, this would be the first time it has happened for a U.S. bill. In previous situations where timing required a rapid signature and the President was far away, the bill was taken to the President. In this instance the President directed that the autopen be used to affix his signature. I’ll touch on the Constitutional issue in a moment, but some technical details seem relevant here.
An autopen – a machine (first called a polygraph) – predates electronic signatures by centuries, and is fundamentally different. Electronic signatures are still made by the individual signing (either on a signature pad or with a signature algorithm), while autopens replicate the signature of the person. Once they were automated (President Jefferson’s polygraph/autopen was essentially a copier), the signatures need not be (and typically aren’t) signed by that person.
So we have an issue – a signature made to a document when the signer was nowhere near the document. The White House has asserted that the President reviewed teh bill before using the autopen, but Representative Tom Graves has requested confirmation of that review and an explanation of the Constitutional authority to use the autopen.
The issue is the Presentment Clause, from Article I, Section 7. Specifically (boldface mine):
“Every bill which shall have passed the House of Representatives and the Senate, shall, before it become 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, with his objections to that House in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider it.”
A perfectly reasonable question is whether or not this bill was presented to President Obama, or put a slightly different way, was the bill the President had the autopen sign the one he claims to have reviewed. While the answer here may be yes, Representative Graves is concerned about other possible uses of the autopen that may not meet those criteria. A related question is whether or not the use of the autopen by someone other than the President can reasonably constitute approval by the President.
As this is the first time a U.S. President has used an autopen to sign legislation, there is no relevant case law or Supreme Court decision. There is a 2005 opinion from the Office of Legal Counsel in the Department of Justice that argues for the acceptability of using of an autopen in legislation. Based on review of the legal understanding of the word ‘sign’ over American history, the OLC opinion found that it would be consistent with legal history to properly sign a bill into law by directing someone else to affix a signature. That legal interpretation is technology-independent, as it relies on past legal acceptance of another person signing on behalf of someone. It also notes that since the early 20th century, the practice of presentment has really been an exchange between clerks done at the White House, and returning/vetoing a bill also involves messengers rather than the President directly. By extension, they see no reason why the direct personal involvement of the President is essential to the signature process. Even so, the George W. Bush Administration never used the autopen.
(I find it interesting, however, that several documents were cited that relate to the signature of President Wilson on commissions, without any discussion of his signature on bills. Wilson suffered a stroke in 1919, limiting his capacity with over a year left in his term. That personally signing was an issue in one case but not the other deserves some explanation in the opinion.)
However, legal precedent has run up against historical precedent. While Presidents have used autopens since at least the Truman Administration, this is the first time it has been used to sign a bill into law. And it would also seem to be the first time a President has used any proxy to sign a bill into law. Will this stand? The action was taken because of time – there was all of 15 minutes left between the time the bill was passed by Congress and the time the prior legislation was set to expire. And the opinion cited to justify this action does take pains to distinguish between the act of delegating the signing of a document from the delegating of the approval of a document. Will clarifying that distinction whenever an autopen is used be worth the effort? Perhaps the answer to that question comes from it’s lack of use.