Is The Autopen Mightier Than The Sword? Rep. Graves Challenges Use of Autopen Presidential Signatures

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

24 thoughts on “Is The Autopen Mightier Than The Sword? Rep. Graves Challenges Use of Autopen Presidential Signatures”

  1. Should Obama sign this 15th Century bill with his real signature or with the Autopen?

    Sometimes our laws are just about as useful, because the next thing that happens is an argument over what it means.

  2. This is what happens when you back yourself into the corner by disagreeing with everything somebody does, even when it’s something you agree with.

  3. These days, the ink forming the text above the signature does more robotic damage than a replica of an original signature does.

    Whether an original signature or a replica, the Patriot Act was wrong.

  4. Bette Noir, I welcome our robot overlords, they at least have to make decisions using a logic-tree of if/then conditionals. Our heads-up-their-butts Executive branch overlords can’t seem to get within a passing nod to logic, common sense or enlightened self-interest; I’m not at all concerned that the robots will do a worse job.

    (Not quite serious but not quite joking either)

  5. I’m the only one concerned that our future Robot Overlords have put their noses under the tent?

  6. SwM,

    Sadly, I am not in New Orleans so you must, as my blog-buddy, live for two … have two of everything … one for you and one for me. 8)

  7. 122 out of 193 democrats voted with minority leader Pelosi against the bill. Only 31 of the 242 republicans voted against the bill.

  8. Buddha Is Laughing
    1, May 30, 2011 at 9:43 am
    I’m not as concerned how he signed as I am that he signed it at all.

    ======================================

    clear and succinct and correct

  9. Buddha

    You and I might like to agree with Rep. Graves on this one and have that nullify the Act, but it looks like Nal’s got that exit covered. To Swathmore Mom’s point, the date of the OLC’s opinion is notable.

  10. “I’m not as concerned how he signed as I am that he signed it at all.” -Buddha

    …and, yes,…that’s the salient point…

    http://www.nytimes.com/2011/05/27/us/27patriot.html

    from the article:

    …Senator Ron Wyden, an Oregon Democrat and a member of the Intelligence Committee, said that the executive branch had come up with a secret legal theory about what it could collect under a provision of the Patriot Act that did not seem to dovetail with a plain reading of the text.

    “I want to deliver a warning this afternoon: When the American people find out how their government has secretly interpreted the Patriot Act, they will be stunned and they will be angry,” Mr. Wyden said.

    He invoked the public’s reaction to the illegal domestic spying that came to light in the mid-1970s, the Iran-contra affair, and the Bush administration’s program of surveillance without warrants.

    Another member of the Intelligence Committee, Senator Mark Udall, Democrat of Colorado, backed Mr. Wyden’s account, saying, “Americans would be alarmed if they knew how this law is being carried out.” (end excerpt)

    That “Americans would be alarmed” is an understatement.

  11. I’m not as concerned how he signed as I am that he signed it at all.

  12. These reps did not complain when Clinton or Bush used the autopen. What is different now? Hmmm……

  13. Hmmmm…..and the lobbyist on the floor are much more dangerous….usually former representatives…

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