The constitutional quibble with the autopen. (It's not what you think it is.)

The law, lawyers, and the court.
Aug. 24 2011 12:40 PM

All the President's Signatures

The constitutional quibble with the autopen. (It's not what you think it is.)

(Continued from Page 1)

Huh? Authorization cannot substitute for presence. Fraud in the execution of documents can too easily occur without the presence of the principal. This requirement must be maintained for high-value transactions both as a matter of policy and as a matter of constitutional interpretation. As to the latter, the presence requirement was firmly in place both at common law and in statutes at the time when the Article I presidential-signature requirement was drafted and ratified. The OLC memo also cites as justification several prior executive-branch legal memorandums dealing with proxy signatures on other types of documents. But none of the signatures discussed in these memorandums requires a presidential signature that is constitutionally mandated. The memorandums dealing with them are self-serving executive-branch opinions citing no case law and positing no constitutional interpretations that would be relevant to a constitutionally mandated presidential signature.

In this instance, it actually matters very little that the president's signature was unconstitutional. That's because in the case of the FISA reauthorization, the bill would still become law under the Constitution. It requires a bit of math, but, in this instance, Congress approved the bill on May 26. Under the Constitution, the president has 10 days (excluding Sundays) to sign a bill into law. As applied here, excluding Sundays, 10 days later would be June 7 (or 12 days total). Assuming that the use of the autopen was unconstitutional and thus a void act, then it is as if the president had taken no action in the 12-day period, neither signing nor vetoing the renewal bill. (Still with me?) Under such circumstances, the Constitution allows a bill to become law automatically unless Congress is not in session. It was. So the new FISA bill is good law, even though there were 12 days when neither the old provisions nor their replacements were valid.

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Now, there are plenty of liberals and libertarians who would love to see these controversial Patriot Act FISA provisions—including roving wiretaps, business records searches and "lone wolf" surveillance—go down. But, for better or worse, these provisions had grandfather clauses permitting them "to remain effective with respect to investigations that began, or potential offenses that took place, before the sunset date." Therefore, the gap in the provisions' effectiveness does not seem to be problematic except for investigations and roving wiretaps beginning in the 12-day period, which would be illegal even now, because they were never properly authorized. (Heads up: Check for any roving wiretaps that were started during this 12-day period and get them reauthorized.)

The real problem here isn't that FISA isn't the law. It's that the use of the autopen by proxy (or any nonpresence proxy signature) to sign bills in the future could yield terrible (like, really terrible) results, since most laws do not contain grandfather clauses like those included in the old Patriot Act. One can easily imagine that Congress might not be in session when the 10-day period (not counting Sundays) expires. Very often, there is a hurried push at the end of congressional sessions to get legislation passed. Many acts, then, are sent to the president for signature just as Congress is adjourning. This would mean that using an autopen or a human proxy (neither in the presence of the president) would be tantamount to a veto! All this is not exactly consistent with well-ordered government.

Absolutely no one seems focused on the presence requirement: not the president, nor the Republican House members (21 of whom complained to the president about this in a strongly-worded June 17 letter), nor the numerous legal commentators and scholars we have heard from since the autopen signing occurred (although Huffington Post recently announced that Republican operatives are trying to draft the President's autopen to run in the Republican presidential-primary battle). The use of the autopen, which is itself constitutionally unproblematic, seems to have eclipsed the far more important issue of whether the president was present when it was used.

The bottom line is that autopengate establishes a dangerous precedent, one that every thinking lawyer in Washington politics seemed to have overlooked. Nobody should be signing bills for the president, not even when the president orders them to do so.

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