Thursday, June 23, 2011

The Constitutional Ambiguity of the Presidential Autopen

A great article by Mark Knoller of CBS News about the controversy surrounding the presidential autopen. Knoller observes that:

"For the first time in U.S. history, Mr. Obama authorized the use of such a machine to sign a bill into law. On May 26th, he was 3700 miles away at the G8 Summit in France, up against a midnight deadline to prevent provisions of the Patriot Act from expiring, so he authorized the White House Staff Secretary the use the autopen to sign it. The problem is - and few proclaim they see a problem - is that the U.S. Constitution makes no provision for the use of a signature machine. Article 1, Section 7 clearly states that if a bill is passed by both the House and Senate, it shall be presented to the president. "If he approve(s) he shall sign it," states the Constitution. There's nothing in the document that suggests a reasonable facsimile affixed by an appliance will do just as well. The White House circumvented the constitutional requirement citing a 2005 opinion from the Justice Department's Office of Legal Counsel. It concluded that '...the President need not personally perform the physical act of affixing his signature to a bill he approves and decides to sign in order for the bill to become law.'"

There have been few objections to this, save for a small group of members of Congress. It does bring up serious questions, however: "Congressman Tom Graves, R-Ga., worries what might happen if the president is hospitalized or otherwise in a state of diminished capacity. '...Can a group of aggressive Cabinet members interpret a wink or a squeeze of the hand as approval of an autopen signing?' says Graves. 'I am very concerned about what this means for future presidential orders, whether they be signing bills into law, military orders, or executive orders.'

It will be interesting to see if the autopen controversy ends up in the courts or if presidents will go out of their way to avoid this controversy. Of course, with advances in technology, presidents will likely performing more official duties via remote like this, not less.

[Signature on left is autopen; signature on right is real Obama signature. Photo Credit: CBS]

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