Call him the maestro of the autopen. On May 26 of this year, only hours before three provisions of the Foreign Intelligence Surveillance Act ("FISA") were scheduled to expire, Congress passed an extension. For days, the White House had some poor sap on standby to fly to Europe with the legislation in hand for President Obama to sign, but Congress had been a tad tardy. It seemed important to the White House (though not to me, as I'll discuss later) that none of these provisions lapse for any length of time—even the relatively short time it would take a White House staffer to fly from Washington to France. With this urgency as a backdrop, President Obama was awakened from his pleasant slumber at 5:45 a.m. Central European Time to authorize a first: He bat-phoned a White House staffer in D.C., instructing him or her to use an autopen to sign the bill.
This left a whole lot of people, including me, saying "wait, he did what?" No president had ever had someone else sign a bill into law on his behalf, and certainly no president had ever ordered the use of an autopen to inscribe his signature on a bill while he himself was away from the White House. Can this possibly be constitutional?
In case you are new to the ways of Washington, the autopen is a mechanical device that signs someone's name at the touch of a button. Presidents, members of congress and countless others have utilized autopens for decades to reply to constituent mail and perform similarly mundane matters. But signing a bill into law is no mundane matter: It's constitutionally required by the express language of Article I. It's not the use of the autopen itself that's the real issue. Believe it or not, it's the fact that the autopen and the president were not present together at the signing that makes this an unconstitutional act.
The origins of the presence requirement for proxy signatures are old-school (like Will Ferrell but slightly different) dating back to the English 1677 Statute of Frauds and then later the 1837 Statute of Wills. The law surrounding proxy signatures has remained amazingly constant through both English and American legal history: The proxy (like the autopen, for instance) and the principal (like the president) must be together when the proxy (the autopen) signs on behalf of the principal (the president). Avoidance of fraud is consistently fixed as the purpose of the presence requirement—something that should be of more than a little importance in presidential proxy signatures of bills into laws. (Can you imagine what mischief one could get into with the president's autopen at one's beck and call?)
Now, surely the White House had a stack of legal memos saying that the autopen could sign a bill while President Obama was away from the White House, right? As it turns out, no. The White House relied exclusively on a 2005 Office of Legal Counsel's memorandum to President George W. Bush for its legal authority.
You may remember the Bush OLC. These cool cats brought us all sorts of good stuff, like the torture memos. Oh, and it's worth noting that, despite his top-shelf OLC telling him to embrace the autopen, even President Bush never utilized an autopen (or any proxy) to sign a bill. In 2005, in fact, President Bush flew through the night to get to the White House in time to sign the Terri Schiavo bill. This practice of jetting around the country to put pen to parchment continued into President Obama's tenure as well, including a December 2010 flight by a White House staffer to Hawaii, where the president was vacationing, to obtain his in-person signature on the Sept. 11-responders bill.
Incredibly, this Bush-era OLC memo essentially concedes the presence issue, citing 22 sources confirming that the president's physical presence is required of a proxy signature or seal! It also lists multiple prior executive-branch legal opinions indicating that the president could not use a nonpresence proxy to sign legislation, including opinions from a pair of little-known then-White House lawyers, William H. Rehnquist and Antonin Scalia. All of this notwithstanding, the memo asserts without serious justification that presence is not required of a proxy signature as long as the president "specifically authorizes" its use.