As published at: http://blogs.forbes.com/booked/2011/06/24/all-the-presidents-pens/
Last month, for the first time, many Americans met the autopen, the device used by Presidents since Ike to mechanically sign their names. It entered the popular vernacular when Barack Obama reportedly became the first ever President to sign an act of congress into law by proxy, meaning he did not sign the document himself, but instead used a machine. He did so for the Patriot Act extension, S. 990. He has sent the Act to the National Archives, as is common practice for bills signed into law.
President Obama’s action presumably used as its basis a Bush Administration opinion written in 2005, by Howard C. Neilson, Deputy Assistant Attorney General, which explores American legal precedent and common law to justify great flexibility in Article I Section 7 of the Constitution, which reads, “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 approves he shall sign it.” The opinion concludes, “the President may sign a bill within the meaning of Article I, Section 7 by directing a subordinate to affix the President’s signature to such a bill, for example by autopen.”
For generations, secretaries, stamps, and machines have signed for presidents, including on military appointments, civil service designations, and other documents relating to the administration of the Executive Branch. Correspondence, even letters of great import, has been signed by secretaries and by machine. Just last week, The Raab Collection examined a collection of a Senator who wielded great influence, and who corresponded with four Presidents over the course of decades. No more than half these letters he received were authentic. The precedent is not modern. Abraham Lincoln signed military commissions (appointments of officers during the Civil War) but he left it to a printed signature to release all soldiers who had fulfilled their service, a so-called discharge document.
The practice of presidential proxy signing, which applies to both secretary and machine, dates back two centuries. Starting in Washington’s presidency, every ship coming into an American port had to have a passport and these were signed by the President. In time, the practice changed and presidential authorization was no longer required. Andrew Jackson, in his second term, became so overwhelmed with signing grants of land in the growing West that he ceased signing them himself. Land grants dated after November 1833 bear the President’s name but in another hand. The opinion does not mention these, perhaps because they have little constitutional import. But one cannot understand the development of the practice without them.
Jackson’s action highlights the need for proxy signatures. The growing demands on the President of an expanding country left no time for daily administrative tasks that could be easily assigned to an aide. It seemed unreasonable when governing a country to personally sign every grant of land, for instance.
How does one authenticate an autopen? It’s not the same as a forgery, which is more readily identifiable. Since the machine uses an actual pen, and is an exact copy of the President’s signature, authentication is a different process. Try this: sign your name twice. There are differences. Try to sign your name exactly the same way twice. It is not possible. The autopen is exactly the same each time. Exactly. There are known autopen patterns and these can reveal autopen copies. Likewise, the autopen creates small tell-tales in some (not all) cases.
In 200 years, simply by looking at the document, will our descendants have proof that the President reviewed the act or signed himself? The opinion notes that the President cannot designate the decision to sign a law but he can designate the signing itself. These are two defined points. What separates them?
When Lincoln blockaded the Confederacy at the start of the Civil War, the act required the great seal of the United States to become law. This seal had to be administered by the Secretary of State. How do we know Lincoln gave that authorization? Another document, bearing his signature, ordered the Secretary of State to affix that seal. There was a clear paper trail and readily recognizable process.
The President needs leverage to respond to a rapidly moving world, one our forefathers could not have anticipated. This includes being able to sign an act in absentia. But applying a justification used in appointing John Doe postmaster in Munsey, Indiana or employed to sign annual Christmas cards leaves many questions. Who is watching the machine? Who is verifying that the copy seen by the President matches the final signed? Are these people similarly vested with authority by the President? Does the President sign another authentic copy when he returns? Does he review the final copy? As CBSnews.com reports, “Neither the White House press release on the signing of the Patriot Act measure, nor the Federal Register, disclose that an autopen was used to sign the bill into law.
In areas of Constitutional authority affecting not just the performance of duties prescribed by law but the creation of those laws, a longer-term solution ought to be found, one that has not 20th but 21st century solutions.