May 27th, 2011
12:16 PM ET
Despite what we learned in school, the president doesn’t actually have to sign a bill before it becomes a law. An automatic pen perhaps can do it for him.
That’s what happened Thursday evening when it came time to put President Obama’s John Hancock on the extension of the Patriot Act, a controversial set of anti-terrorism and law enforcement measures passed in the wake of 9/11 that was set to expire Friday.
With Obama an ocean away in Europe and time marching toward the stroke of midnight, the White House determined it was easiest to have his autopen get the job done - a tool that exactly mimics the president’s signature and is more commonly used to sign Christmas cards and letters to schoolchildren. Indeed, this is the first time the Obama administration has ever used the unique device for such weighty purposes as putting laws on the books.
But what about the Constitution’s pesky clause in Article I, Section 7, providing that a bill must be presented to the president and “[i]f he approve he shall sign it, but if not he shall return it”? (emphasis added)
“So long as the president retains this decision-making function, his instruction to a subordinate to affix the President’s signature to a document does not amount to a delegation of presidential authority in any meaningful or legally significant sense,” the department concluded in a 29-page memo.
But at least one congressman disagrees. Georgia Republican Tom Graves sent a letter to Obama Friday, stating he believes the use of an autopen in this context sets a “dangerous precedent.”
“Any number of circumstances could arise in the future where the public could question whether or not the president authorized the use of an autopen,” Graves said. “For example, if the president is hospitalized and not fully alert, can a group of aggressive Cabinet members interpret a wink or a squeeze of the hand as approval of an autopen signing?”
Graves is also requesting the president provide “a detailed explanation of his authority to delegate this responsibility to a surrogate, whether it is human, machine, or otherwise.”
Perhaps the issue does require more legal interpretation. After all, could the framers of the constitution have possibly anticipated such newfangled technology as a pen that automatically signs a name?
Actually, the device traces back to the early 1800’s and was reportedly used by Thomas Jefferson, though not necessarily to sign bills. It’s also been widely employed by senators and congressmen for decades on the Hill so staffers can easily lend their bosses name to several documents daily.
And, the fundamental technology isn't that advanced: the person's signature is merely engraved, allowing a machine-powered pen to follow the lines of the engraving to replicate the signature.
Still, Thursday may just mark a new frontier in the two-century life of the autopen.