Copyright © by Len Holman, 6/3/11
At midnight, Friday, the 27th of May, the extension of provisions in the Patriot Act were set to expire and the bill needed the President’s signature, but Mr. Obama was in Europe and couldn’t get to the special set of pens he keeps in the Oval Office, so he authorized the use of an autopen. This device exactly duplicates a signature and has been used by just about everyone except you and me and Lady Gaga.
Politicians have long used the thing to send you “information” letters which turn out to be poorly disguised and unsubtle appeals for money, “signed” by your concerned congressperson or senator. Corporations and homeless shelters and missions, and companies in the employ of various political or other special interest groups all carry the signature of their CEOs or CFOs, who do not sit down and sign a million letters. So this business of not using an actual, hand-on-the-pen (or quill) is not rare or new. Thomas Jefferson is reported to have used such a device, though apparently not to sign a bill into law. The use of an autopen to actually sign a bill into law is a constitutionally unsettled question. Article I, Section 7 reads, in part:
“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…” (emphasis added)
Now, originally, signing something meant to affix one’s signature to a document by one’s own hand, not with a machine, so the “original intent” people have a clear avenue of complaint here, but intent is key, for if the president intended to sign and couldn’t for physical reasons (he’s away the place of the document), then what’s wrong with some small technological assistance? In 2005, the Justice Department spoke to this issue of intent: “A person may sign a document by directing that his signature be affixed to it by another.” Seems clear enough, though a directive from George W. Bush’s Justice folks isn’t exactly the last constitutionally correct word on the matter—on ANY matter, as witness all the rhetorical, contextual and legal contortions in the memos related to “enhanced interrogation” and “extraordinary rendition.”
But still, there’s some twisted justification for it. That memo goes on to argue that a surrogate’s signing of a bill is not a delegation of Presidential authority IF the president retains his decision-making function. If he does, then “it does not amount to a delegation of presidential authority in any meaningful or legally significant sense.” OK, well that’s clear, except it isn’t, really. If the president retains this decision-making process and can still delegate it, isn’t this a “having your cake and eating it, too” kind of arrangement? If that’s the case, the voters should know who the president-elect’s “delegates” will be (should the need arise). Are they trustworthy, brave patriots, or are they Donald Trump and Don Imus? And HOW does the President delegate this authority? HOW does he signal his intent to a designee? If he winks his eye or wiggles his ears, or is in the hospital and is asked, “Mr. President, should we use the autopen on that bill to cut all funding for K-12?” and he squeezes the questioner’s hand, is THAT designating?
Philosophers have spent many merry hours, weeks, years, and centuries arguing about what makes a person a person, about what identity is and the role that memory plays in it. If the President is playing with Bo, falls, hits his head and goes unconscious for a moment, then is checked by doctors and pronounced physically able to function (thus short-circuiting the constitutional amendment to replace him), but is later found to have no memory of who he is, then is he still the President? His body is the same. He LOOKS like the man who was elected; he talks like that man, but he wonders who the foxy Black lady in his bedroom is. Isn’t his signature a part of that identity? What if, after he recovers physically, he begins signing things with his right hand? Is an autopen which reproduces exactly his former left-handed signature MORE authentic than the new signature he is now using? If the Declaration of Independence had been signed by someone in a basement in Philadelphia using Jefferson’s autoquill or if the Constitution was signed by the same device while the Founders were throwing darts in a tavern, would these seminal documents have the same symbolic power and glory they do now? Shouldn’t the anti-Obamacare people be all over this? After all, if Obama used an autopen to sign the legislation, then it’s an eventual matter for the Supreme Court to decide whether a president’s actual hand needs to do the signing. Of course, there was a LOT of video showing the President signing the bill into law, but we all know the moon landing was faked, so this signing thing would have been a piece of cake for the photo-shop people.
It seems that our President just can’t catch a break. Critics are saying he plays too much golf, that he shouldn’t be spending those precious 10 minutes picking the Final Four when he could be supplying everyone in America with a job, that he is a Muslim socialist, that he is too well-liked overseas (the term “rock star” is often used pejoratively by those who are envious of that very status—but not recently by Sarah Palin, who has been using a rock-star style of transport on her non-political tour), and that he is…well, Obama. The autopen saga will run its course, no doubt, but if I were the President, I’d be grateful for all the little tips he’s been getting for the last two years, because it’s a preview of all the possible hatchet-swings which will be coming his way for 2012, so he has his list and no question his advisors have prepared responses, with big smiles on their faces, because it’s like the Jets getting the Patriot game plan a week before hand. If Jefferson DID use an autoquill to sign legislation, we have no record of it, but even if we did, would Tom be scratched off the “Great Presidents” list by historians? Would we take him off our money? It appears that this autopen blip is another reason dredged up by the Forces of Reaction to “refudiate” Obama and elect Palin, or mini-Palin (Michele Bachmann). If this ends up in front of Scalia, Alito, and Roberts, then the Obama administration might just as well pack in the whole health care issue and the President can wait out the remaining part of his only term visiting Monticello and cursing Jefferson’s inventive mind.
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