Copyright © by Len Holman, 1/11/13
The headlines were everywhere. In one form or another, they said this particular thing: “Obama Signs Fiscal Cliff Bill.” Except he didn’t sign it—an auto-pen did. The President was in Hawaii and was not available to fulfill the requirement in Article I, Section 7, of the U.S. Constitution, which provides that a bill must be presented to the President and if “he approve he shall sign it, but if not he shall return it.” And you thought that signing something meant being there in person and putting a hand to a writing implement and, using your cursive (do they still teach cursive in school?), writing out your name.
In 2005, the Justice Department opined that the word “sign” doesn’t have to mean an active signature by the President himself, stating that “a person may sign a document by directing that his signature be affixed to it by another.” I guess this also means HER signature, in the event we elect a woman to direct the drones over Pakistan and other parts domestic and abroad. The Justice Department concluded that as long as the President retains the decision-making function, his instruction to a subordinate to affix his signature to a document doesn’t amount to a delegation of Presidential authority “in any meaningful or legally significant sense.” This opinion is brought to you by the same minds which said that “enhanced interrogation” is not torture.
The auto-pen is not new, dating back to the 1800s, said to have been invented by Thomas Jefferson, who apparently never signed a bill with it. It’s used by Congresspeople to have tons of documents signed, and I know you’ve gotten “personal” mail from some candidate or celebrity asking for money, signed in color. The technology isn’t that fancy, either. The signature is engraved, and then a motor-driven pen follows the engraving to make the signature “authentic.” Of course, there are objections to this use of a mechanical device for a Presidential signature. Georgia Republican Tom Graves worries that if a President is incapacitated—though not enough to trigger the constitutional provision of a change of authority, say a very bad cold or something which requires hospitalization, that a wink or a squeeze of the hand (his words) could be used as a signal of authorization for some aggressive cabinet member to use the auto-pen to append the President’s signature. Graves is also requesting a “detailed explanation of his authority to delegate this responsibility to a surrogate, whether it is human, machine, or otherwise.”
Otherwise? Does Graves anticipate a situation where Bo would be given authority to sign a bill? There are some questions about all this, including the whereabouts of all the “original intent” people. Does Section 7 say anything about a mechanical device? Did the Framers even conceive of such a device? If their intent was for a hand to be on a quill to be called a “signature”, then, according to original intent doctrine, auto-pens are NOT constitutional. Now, it has often been said that the Constitution is just a set of guidelines, not holy writ brought down from the Mount, but several Supreme Court Justices have considered it—and still do—as being just one Kinko’s printing run away from those stone tablets, so if this issue ever comes before that high bench, one can’t imagine that several of the justices won’t raise this idea of intent.
What proponents of this practice seem to be saying is that an engraving equals a hand-signed document IF the owner of the signature says it’s ok. Somewhere, at some time, under some circumstance, President Obama told someone, “Go ahead and run the machine. I’ll be several thousand miles away, but if I WERE here, I’d sign it.” At least we still have the idea of a signature. At least the cursive swirls we call “signature” is still used as a baseline, a template. There will come a time when this is not so, and when that time comes, it will arrive without much consideration of the consequences, as with automobiles, TVs, cell phones, driverless cars, in vitro babies, and mobile apps which translate signs in foreign countries with Google Map glasses. Who has thought out any of the consequences of these tech innovations? If a President doesn’t need to physically sign a bill into law, then does he or she need to physically be around to perform any of the president’s duties? Could the American President send a Data-like android to do diplomacy work, or even do everything with a hologram? If a signature made with a machine can stand in for the actual handwritten cursive of the president, what else can stand in for what the president does? It sounds like carping or maybe Luddism for someone like Graves to be bringing up some little quibble like this.
After all, everyone knows that Obama would have personally signed the bill anyway, but still, isn’t it one of the Conservative yelling points that principles matter? That the Constitution is inviolate and sacred, and that socialists like Obama and his ilk are out to destroy this holy document? Graves is only following these precepts, and objectively, it seems that—in the long term—this all might matter a great deal after all. So where is Justice Scalia when we really need him?
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