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.
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.
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.