[Twenty-one Representatives], many freshmen who ran on platforms of strict constitutional adherence, are unhappy that the president used a so-called autopen to sign legislation extending the U.S.A. Patriot Act, and have written him a letter demanding that he re-sign the bill.
The letter is reproduced at the end of this Washington Post article, and I have some legal thoughts about it — I think their claim of a constitutional violation is not backed by an adequate argument, and I think their proposed remedy is clearly a mix of the unnecessary and ineffectual (because of some constitutional text that their letter did not include). But first, I feel as though we should move right into the religious material, and start by repeating a question: Who cut Samson’s hair?
Bear with me now, it’s relevant. I’ll bet you you’re thinking “Delilah” — and so did I when I was first asked this (by Betchen and Paul Barber). But Judges 16:19 says, “Then she [Delilah] lulled him [Samson] to sleep on her knees, and called for a man and had him shave off the seven locks of his head.” It wasn’t Delilah after all — it was her servant (or slave or other agent). But we remember the story as Delilah cutting Samson’s hair.
Naturally, this is not itself a legal argument; I give this just as an illustration of how commonly we ascribe the actions of an agent to the person who ordered those actions, to the point of remembering them as actually being the actions of the person who gave the command. The law routinely takes this view: A mafioso is guilty of murder for ordering a murder, even if he didn’t pull the trigger. A businessman is liable for contracts signed on his behalf with his permission (and sometimes even without his permission, but that’s a separate matter). And the list can go on.
Given this, it’s unsurprising that — according to a 2005 Office of Legal Counsel opinion — concluded as follows:
[We find that, pursuant to] the legal understanding of the word “sign” at the time the Constitution was drafted and ratified and during the early years of the Republic ..., a person may sign a document by directing that his signature be affixed to it by another. We then review opinions of the Attorney General and the Department of Justice and find the same understanding reflected in opinions addressing statutory signing requirements in a variety of contexts. Reading the constitutional text in light of this established legal understanding, we conclude that the President need not personally perform the physical act of affixing his signature to a bill to sign it within the meaning of Article I, Section 7.
The Constitution provides that, “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 approve 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.” And, as the OLC opinion points out, a President may “sign” a bill by ordering an agent to affix his signature — just as he may “return” a bill (which is what we call a “veto”) by ordering an agent to return it to Congress rather than physically returning it himself.
What then of the letter? A few thoughts:
1. Near the beginning, the letter says “Mr. President, your use of the autopen appears contrary to the Constitution.” But it doesn’t actually show that the OLC’s analysis is wrong, and that “sign” requires a signature in person. It does “point out that the memorandum provides a long list of dissenting opinion,” and quotes them. But it doesn’t explain why those dissenting views — some of which are ambiguous, for reasons described in the OLC opinion, some of which are tentative, and all of which were based on much less analysis than in the 2005 OLC opinion — are more sound than the view expressed by the OLC. And perhaps because of this it concludes, only that “it is clear that assigning a surrogate the responsibility of signing bills passed by Congress is a debatable issue, and could be challenged in court.”
So the letter doesn’t really offer much by way of substantive argument; it simply reflects what the 21 Representatives think is the meaning of the text. But as the OLC letter points out, it’s not the only plausible meaning of the text, and there is good reason to think that the historical meaning of “sign,” like the historical meaning of “return,” has been “to cause a signature to be affixed,” and has included having an agent sign it. The OLC offered a solid argument for its position. The Representatives have not, it seems to me, offered a solid counterargument.
2. But beyond this (to repeat this post), the Representatives’ proposed remedy — “out of an abundance of caution, you affix your signature to S. 990 by personally re-signing the enrolled bill” — is indeed made both unnecessary and ineffectual by the very same constitutional clause which they quoted earlier in their letter. That clause goes on to say,
If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.
Even if the Representatives are correct that the President didn’t properly “sign” the bill, he certainly did not return it (i.e., veto it). It therefore became law either the day the President ordered his autopen signature to be affixed to it, or twelve days (ten days plus two Sundays) after the bill was presented to him. (There was no adjournment of Congress at the time.) One way or the other, the bill has now become law.
Of course, if there was a twelve-day delay between the day the bill was presented to the President and the day it was signed, then the bill was not the law during that time. That may be important because apparently the bill was signed by autopen because the old Patriot Act was expiring. The question whether the autopen signature was valid thus remains potentially significant for things that happened during those days. But the Representatives’ proposed remedy would be ineffectual to cure that problem. The bill goes into effect either when the president signs it, or when the ten days (plus Sundays) lapse. A belated signature won’t retroactively enact the law as of the time that the initial autopen signature was affixed. So there’s no good “abundance of caution” “[avoid] challenge in court” reason for the President’s “personally re-signing the enrolled bill”; that signature wouldn’t avoid any such challenges.
Of course, that still leaves the possible symbolic effect of re-signing the enrolled bill, and of “commit[ting] to ending the practice of using an autopen to sign bills passed by Congress,” which is what the 21 Representatives are asking the President to do. But for reasons I gave above, I don’t think the Representatives have articulated a sufficiently persuasive constitutional argument for the President to take such an action.