On Thursday night, the Congress gave final approval to a bill that extends three provisions of the anti-terror Patriot Act for another four years. But there were questions about how it would be signed into law before a midnight deadline, especially with President Obama out of the country.
At first, there was talk the bill would be flown to Europe so Mr. Obama could sign it. Ultimately, the White House indicated that a machine known as an "autopen" was used by the President to sign the bill.
The notification from the White House was in the standard form of an e-mail by the Press Secretary:
S. 990, the “PATRIOT Sunsets Extension Act of 2011,” which extends certain surveillance authorities included in the USA PATRIOT Act and the Intelligence Reform and Terrorism Prevention Act of 2004."
Today, a Republican Congressman sent the President a letter, demanding more information about how that could be legitimate. Here is the letter from Rep. Tom Graves (R-GA).
May 27, 2011
President Barack Obama
The White House
1600 Pennsylvania Avenue, NW
Washington, DC 20500
Dear Mr. President:
Yesterday, May 26, 2011, the United States Senate and House of Representatives passed S. 990, the “PATRIOT Sunsets Extension Act of 2011.”
Shortly before midnight, the White House press secretary released a statement that you signed the bill into law.
However, ABC News reported a statement from White House spokesman Nick Shapiro that, at your order, an autopen signed the bill.
Article 1, section 7 of the United States Constitution states:
“Every Bill which shall have passed the House of Representatives and the Senate, shall, before it becomes 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...”
Mr. President, I write to request your confirmation that S. 990, as passed by Congress, was presented to you prior to the autopen signing, as well as a detailed, written explanation of your Constitutional authority to assign a surrogate the responsibility of signing bills passed by Congress into law.
Thank you for your consideration of this matter. I look forward to your response.
Sincerely,
Tom Graves
Member of Congress
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Graves also added this statement in an email to reporters:
“I thought it was a joke at first, but the President did, in fact, authorize an autopen to sign the Patriot Act extension into law. Consider the dangerous precedent this sets. Any number of circumstances could arise in the future where the public could question whether or not the president authorized the use of an autopen. For example, if the president is hospitalized and not fully alert, can a group of aggressive Cabinet members interpret a wink or a squeeze of the hand as approval of an autopen signing? I am very concerned about what this means for future presidential orders, whether they be signing bills into law, military orders, or executive orders.
“I am aware of a 2005 Office of Legal Counsel opinion that using an autopen is Constitutional, but I believe this is debatable, and have requested that President Obama provide a detailed explanation of his authority to delegate this responsibility to a surrogate, whether it is human, machine, or otherwise.”
As Graves noted in that press release, in 2005, the Office of Legal Counsel (in the Department of Justice) issued a ruling which found that the use of the autopen to sign a bill was considered Constitutional.
That might seem to suggest that maybe some bills were signed by autopen - or that the option was considered for use - during the last Bush Administration, which is when that guidance was issued.
