“The President and the Autopen: It is Unconstitutional for Someone or Something to Sign a Bill Outside of the President’s Presence”

Terry Turnipseed has posted this draft on SSRN.,  Here is the abstract:

On May 26, 2011, only hours before three provisions of the Foreign Intelligence Surveillance Act were scheduled to expire, Congress passed an extension. For days, the White House had someone ready to fly to Europe with the legislation in hand for the President to sign, but Congress had been tardy. It seemed quite important to the White House that none of these provisions lapse for any length of time, even the relatively short time it would take to fly from Washington to France. With this urgency as a backdrop, the President was awakened at 5:45 a.m. Central European Time so he could authorize a first: phone a White House staffer in Washington, D.C., and instruct him to use an auto-pen to sign the bill. No President had ever had anyone else sign on his behalf, and certainly no President had ever ordered the use of an auto-pen to inscribe his signature on a bill when away from the White House.

This Article explores multiple facets of the President’s use of a proxy signature to sign legislation.

The state of the law surrounding proxy signatures has remained amazingly constant through both English and American history. The proxy and the principal must be present together when a proxy signature is utilized for a high-value transaction. This was the rock-solid law when the constitution was written.

No one seems focused on the presence requirement: not the President, nor the Republican House members who complained to the President, nor the numerous legal commentators and scholars that we have heard from since the auto-pen signing occurred. The use of the auto-pen, itself unproblematic, seems to have eclipsed the more important issue of whether the president was present when it was used.

By definition, if a non-presence proxy signature is affixed to a bill, then time is of the essence. When time is of the essence, the consequences of a voided signature are never greater. Since the President has roughly twelve days to sign a bill, a non-presence proxy signature could produce one of two unintended consequences. At best, it would produce a twelve-day period during which the new legislation would not be in effect. At worst, if Congress is not in session at the end of the twelve-day period, it would amount to a pocket veto. Neither case is consistent with well-ordered government.

In sum, the President’s use of the auto-pen (or even a human being) to sign a bill outside of the President’s presence is unconstitutional. This establishes a dangerous precedent, one which every thinking lawyer in Washington politics seemed to have overlooked. Let the auto-pen episode not be a precedent for this or any other President to follow. The Constitution does not allow for shortcuts.


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