UPDATED: Did Obama’s Unprecedented Autopen Signing of the Patriot Act Extension Comply With the Constitution?
By Ken Falkenstein | Saturday, May 28th, 2011 | Policy
I support the Patriot Act and believe that it provides reasonable and essential tools to fight terrorism. That said, I question whether the recent bill extending the three non-permanent provisions of the Patriot Act was signed into law in compliance with the Constitution.
Article 1 Section 7 of the Constitution states, “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.” (Emphasis added.)
The extension of the non-permanent provisions of the Patriot Act was signed by an autopen and not by President Obama’s hand. In other words, “he” did not sign it. This is the first time in American history that a bill has been signed by an autopen rather than by the president personally. In fact, it is unclear whether the bill was ever actually “presented” to the President. These facts raise a serious question as to whether the Patriot Act has actually been signed into law in a manner that complies with the Constitution.
Rep. Tom Graves (R-GA)
Rep. Tom Graves (R-GA) has sent a letter to President Obama raising these questions. It will be interesting to see whether President Obama or any of the establishment news media follow up on this issue, and if not, whether there will be a legal challenge questioning whether the extension of these provisions was legally signed into law.
UPDATE: CBS News’ Mark Knoller has indeed raised these very questions, asking whether Sasha could sign her father’s name to a bill. Will any of the other news media follow suit?
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About the author
Ken Falkenstein has been a staffer in the United States Senate and the Virginia House of Delegates. He has managed political campaigns. He was a military intelligence analyst in the U.S. Army in West Germany during the Cold War. He is currently a civil litigation attorney with Poole Mahoney, P.C. in Virginia Beach. But his concern for his kids' future is what most informs his writing.
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Comments
15 Responses to "UPDATED: Did Obama’s Unprecedented Autopen Signing of the Patriot Act Extension Comply With the Constitution?"
I can understand Tom Graves stance because he, along with only 30 other Republicans, voted against the Patriot Act. The Patriot Act seems to be a repeal of this Article and the Fourth Amendment. The autopen is just a formality and should be a battle left for another day.
I’m siding with the Democrats on this one as they voted 122-54 against and the Republicans voted 196-31 for. It seems strange to support a bill that mangles the Fourth Amendment and you’re conserned about the formality, could you explain that?
Normally, you’re spot on.
I think its ok because the order was given by the Teleprompter of the United States.
See here: http://volokh.com/2011/05/27/what-does-sign-mean and http://www.justice.gov/olc/2005/opinion_07072005.pdf
Bush’s Office of Legal Counsel said this was fine. Have we no issues on which to challenge this president, that we must resort to ticky-tack nonsense like this?
I understand that Bush’s legal counsel concluded that using an autopen would comply with the Constitution. That is just a legal opinion – not a ruling by a court or otherwise binding legal authority. That opinion might be correct, but it might not be. I think it is a valid question to ask whether using an autopen complies with the constitutional requirement that “he [the President] shall sign it.” This bill was signed by an autopen while the president was thousands of miles away, so clearly “he” didn’t sign it. Yes, this is a technicality, but I do not believe that the requirements of the Constitution legally can be disregarded simply because a president finds it inconvenient or believes it unimportant to comply.
@JJ – I believe the Patriot Act was generally well-crafted to provide the government with effective tools to prevent terrorist attacks without infringing on the rights of Americans. Note that there has not been another major terrorist attack in the United States in the ten years since the 9/11 attacks. That said, there are some provisions that I question, such as the provision that allows the government to demand that documents be turned over by businesses and keep that fact secret from the subject. In principle, I understand the purpose of this provision, but I’d like to see a step added that would require a showing to a court of at least reasonable suspicion that the subject is engaged in terrorist activities.
I agree with you: this is disturbing, and possibly unconstitutional.
I understand your stance but I always believe that we give up too much of our liberties in the name of safety. I would attribute fighting the wars in the Middle East more than wiretapping a homegrown, right-wing terrorist. Besides, we have seem to forgotten Fort Hood terrorist attack and checking business library books is not exactly attributed to the many captures of terrorist, or the funding.
With the TSA scanners, getting businesses records, there’s nothing like getting a judges signature to conduct these surveillances. This is what disturbs me the most.
There is no more Constitution. States rights…we’re needing to sue the Federal Government over borders, healthcare, etc., Fourth Amendment, Declaration of War, Elizabeth Warren has served in a Congressional approved seat. They haven’t approved a budget for two years. Congress is irrelevant anymore. Even the courts are a political mess to where it depends on what party your from as to what ruling comes.
I find it hard press to find verbiage in the Constitution that is being met, even the auto pen. That should be the question. Even the “promote the General Welfare” has been distorted to where the environment of general welfare has declined.
Although I agree…this is only one of many and its just not the Democrats. Right and wrong is not drawn down party lines.
It seems like such a small matter, but the words either mean something or they don’t. Too many people just don’t care what the Constitution says, to them it is just some kind of outdated guide and doesn’t matter. It is rather depressing.
I suppose a defense lawyer may be able to use this… although if he hasn’t signed it within 10 days or vetoed it then it would be law anyway.
Due to the debate, I just opened up my wallet and took a look at one of the few dollar bills I had in it. My gosh, I discovered that the dollar bill did not have a real signature on it. Which one of our forefathers gave approval that EVERY dollar bill does not need a real signature?
I am still rather on in the middle on this particular topic, but I am trying to add perspective.
Double post:
Before someone complains too much. I am in favor of the President being forced to put a real pen to real paper. But if that does not happen, I am not going to get my panties in a wad about it.
LD- I quoted the provision of the Constitution that requires the president to sign legislation. Please quote the provision of the Constitution that requires anyone to sign paper currency.
Ken,
Does the Constitution mandate a minimum distance the President must be from the document when he signs it?
No, the Constitution doesn’t state the distance from the paper he must be standing or sitting when he signs it. It just says that “he” must sign it. Even a messiah can’t sign a document from 3,500 miles away – and he doesn’t claim to have done so. He admits that a machine signed the bill. This does not appear to comply with the plain language of the Constitution that “he” shall sign it.
Why would Obama miss an opportunity to sneer at the Constitution? He flips off the Congress, the judicial system, the laws, the statutes, and even his own words when inconvenient. To be fair he said what he was about. He called himself a transformer, not a reformer. Lets just say he “deems” it signed.
Ken,
So then what happens if we elect someone like Stephen Hawking as President?
Probably a restoration of funding for the space program.
Seriously though, “he” would sign legislation in whatever manner is recognized by law for a person with his disability to legally sign documents.
In the present situation, Obama did not fail to personally sign the document do to a physical disability. He is perfectly capable of signing bills and has done so on hundreds of occasions. He simply declined to do so, electing to have a machine do it instead. I don’t know if the Constitution allows a bill to be signed by a machine where the president is capable of signing it himself but has the machine do it for purposes of politics and convenience.
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