Rep. Tom Graves (R-Ga.) has sent a letter challenging the constitutionality of President Barack Obama’s signing the Patriot Act with an autopen. I discussed this issue on CNN where I explained that, while this is not a good practice, it would likely be upheld under long-standing precedent going back to the 1600s. While obviously the autopen post-dated such precedent, the idea of signing by direction or surrogate is not new.

Rep. Graves sent the letter with a demand for confirmation:

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 into law.”

I share Rep. Graves’ concern of such a practice but it is more of a policy than a constitutional issue. One can easily see the potential for mischief as aides insist that they were given oral approval to effectively sign for a president. We have seen presidents like Reagan who were reportedly diminished toward the end of their final terms. In such a condition, aides could exercise considerable influence. We saw this with Strom Thurmond who could be seen voting as directed by his aides. Of course, Thurmond also shows that a leader can be simply directed to physically vote on the floor or sign a paper. However, the use of an autopen allows for a greater ease and detachment in a leader from such functions.

Article I, Section 7 provides in relevant part as follows:

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 approves 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.

The signing language is generally not viewed as literal — any more than the presentment or return language is read literally.

The common law has long recognized that surrogates could be used for an actual signature. One of the oldest precedent is that of Lord Lovelace’s Case, 82 Eng. Rep. 140, Sir Wm. Jones Rep. 268 (J. Seate 1632), where the Court ruled:

[I]f one of the officers of the forest put one seal to the Rolls by assent of all the Verderers, Regarders, and other Officers, it is as good as if every one had put his several seal, as in case divers men enter into an Obligation, and they all consent, and let but one seal to it, it is a good Obligation of them all.

It is routine for lawyers to sign for other lawyers on filings and for individuals to give power of attorney to third parties.

Of course, the appearance of a president signing the Patriot Act remotely fulfills every possible fear for civil libertarians. Here you have an act that is widely denounced by civil libertarians as unconstitutional. Then you have a president who gives oral approval to sign it into law. With a President who rarely strays from prepared comments read for a teleprompter, the addition of an autopen creates an obvious Max Headroom effect. However, it is something that the courts are unlikely to bar.

Source: The Hill

Jonathan Turley