(WASHINGTON) — With the Patriot Act set to expire Thursday night, President Obama signed legislation extending it — from France. How did he do that? Using an autopen, of course.
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.”
"Failure to sign this legislation posed a significant risk to U.S. national security," White House spokesman Nick Shapiro said. "The president directed the use of the autopen to sign it."
Rep. Tom Graves, R-Ga., wrote to the president Friday questioning whether an autopen is good enough. 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 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.”
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.”
In 2004, then-Secretary of Defense Donald Rumsfeld was criticized for using an autopen to sign condolence letters to the families of fallen troops.
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