January 3rd, 2013
11:23 AM ET
Honolulu, Hawaii (CNN) - If you are a president who desperately wants to salvage your Hawaiian vacation, why stick around Washington to sign a bill when an automatic pen can do it for you?
That’s what happened Wednesday when the long-haggled over bill to avert the fiscal cliff was delivered to the White House for the president’s signature. With Obama 5,000 miles away in Hawaii, aides decided to prepare the president with an electronic version of the document for his review rather than commission a special flight to currier over the document.
Upon review of the electronic copy, the president directed his signature be affixed to the bill – via that auto pen back in Washingon. It’s a move that, while convenient, raised questions over just how a president can make a bill become a law.
After all, Article I, Section 7, of the Constitution provides that a bill must be presented to the president and “[i]f he approve he shall sign it, but if not he shall return it” (emphasis added).
So can an auto-pen, where the president himself is not technically signing, conform to what the Constitution demands?
It was a matter the Justice Department considered in 2005, determining then that the word “sign” does not necessarily mean an active signature by the president himself. Rather, the Justice Department stated, “a person may sign a document by directing that his signature be affixed to it by another.”
“So long as the president retains this decision-making function, his instruction to a subordinate to affix the President’s signature to a document does not amount to a delegation of presidential authority in any meaningful or legally significant sense,” the department concluded in a 29-page memo.
A White House official also noted the president has used the auto-pen twice before: once to extend provisions of the Patriot Act in May of 2011 and another time to enact a government spending bill in November of 2011. Both times, the president was traveling out of the country when the bills were ready for his signature.
While the handy tool exactly mimics the president’s signature, its use to affix legal authority to bills is not without controversy. When Obama first used the autopen in May of 2011 to extend the Patriot Act, one lawmaker sent a letter to the president arguing that the use of the device in this context sets a “dangerous precedent.”
“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,” Georgia Republican Rep. Tom Graves wrote then. “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?”
If nothing else, it appears safe to assume the auto-pen will become welcome practice to future presidents eager to begin a vacation thousands of miles away from the nation’s capital – even if a bill signing awaits him.