Fri May 27, 2011

Obama Wields His ... Autopen?

As the news broke on Friday that President Obama signed the Patriot Act extension from France via autopen, you could almost hear thousands of Americans asking in unison, "What's an autopen?"

Well, it's a device that's often used by rock stars or sports heroes and yes, the President of the United States, usually to sign letters. This is the first time we know of that an autopen has signed a bill into law, though its use was carefully considered by the Justice Department in the George W. Bush administration.

The first autopen was patented in 1803 by a man named John Isaac Hawkins. The Polygraph, as it was called, was immediately pounced on by America's original early adopter of cutting-edge technology, President Thomas Jefferson.

"He wrote with one pen and it was hooked to another pen and the other one made a copy on a second piece of paper," says Susan Stein, senior curator of Monticello, Jefferson's Virginia plantation.

The mansion is full of high-tech machines — automatic doors, a dumb-waiter in the dining room to pluck bottles of wine from the cellar. And then there's the double clock, which Stein says has a face in the hall and a gong on the roof to mark the hours.

Copying and archiving his work was immensely important to Jefferson, says Stein, and he called his autopen "the finest invention of the present age." It's on display at Monticello.

Friday was not the first time a President has considered using an autopen to sign a bill.

"This is an issue that in the past had come up a couple times, but it had always come up in kind of urgent circumstances," says former Deputy Attorney General Howard Nielson.

President Clinton was in Turkey when a bill funding the government had to be signed, and President Reagan was in a similar situation while in China. In both cases, the Justice Department decided it was safer to fly the bill halfway around the world, rather than sign it with an autopen. After all, the Constitution says of the president's role in making a law, "if he approve, he shall sign it."

That's why Rep. Tom Graves, R-GA, is questioning whether Obama's autopen signature on the Patriot Act extension is constitutionally sound.

But in 2005, President George W. Bush's Office of Legal Counsel considered the question and issued a decision, written by Nielson. It's 29 pages long, but it essentially says that what matters is the president's decision to approve a bill, not the mechanics of how its signed.

After all, says Nielson, the Constitution also says if the president's going to veto a bill, "he shall return it."

Nielson notes that to return the bill, "it's never been understood that he has to actually has to physically walk down Pennsylvania Avenue and hand it to Congress himself."

Jay Wexler, a law professor at Boston University, LOVES this stuff. He's writing a book about odd clauses in the Constitution. Only in Washington, he says, could such minutia cause such a kerfuffle.
