President Obama signed the “fiscal cliff” bill into law early Thursday via autopen while vacationing in Hawaii, the third time in his presidency that he has used the controversial method to approve legislation.
The White House sent out an email notice to reporters at 12:12 a.m. Thursday Washington time (7:12 p.m. Wednesday in Hawaii) saying simply that Mr. Obama had “signed into law” the bill that raises taxes on households earning more than $450,000 per year. The measure, which consumed Capitol Hill in the waning days of 2012, also preserves tax cuts for most families, extends expiring jobless benefits and delays for two months across-the-board spending cuts in most defense and domestic programs.
Eight minutes after the White House announced the president had “signed” the bill, a pool reporter traveling with the president in Hawaii issued this follow-up statement from an anonymous administration official: “We received the bill late this afternoon, and it was immediately processed. A copy was delivered to the president for review. He then directed the bill be signed by autopen.”
Mr. Obama is the only president ever to use the mechanical device to sign legislation. The Justice Department’s Office of Legal Counsel in the administration of President George W. Bush decided that the use of the autopen was constitutional, although Mr. Bush never used it to mimic his signature on a bill.
The OLC said in 2005 that Article 1, Section 7 of the Constitution allows the president to use the autopen to sign legislation, stating “the president need not personally perform the physical act of affixing his signature to a bill to sign it.”
The validity of the autopen has never been tested in court, although Mr. Obama has used the autopen twice previously to sign legislation. The first was in May 2011, when he signed an extension of the Patriot Act while in Europe at a G-8 summit. White House officials believed it was important at the time to sign the extension before the old law expired.
The second occasion was in November 2011, when Mr. Obama signed an emergency spending bill to keep the government running. The president was traveling in Indonesia at the time.
A group of House Republican lawmakers wrote to Mr. Obama to express their concern about his use of the autopen after the Patriot Act signing. They said the practice “appears contrary to the Constitution” and could be challenged in court, although they didn’t pursue their own legal challenge.
Terry Turnipseed, a law professor at Syracuse University who has written about the legality of the autopen, said it sets a bad precedent.
“I’m very, very surprised that this is now the third time that President Obama has done this, especially given that it was the Bush OLC that produced the memo and Bush himself refused to take advantage of the autopen,” he said. “Even Bush did not think that this was something that should have been utilized on a constitutional basis.”
Mr. Turnipseed said it’s not the use of the autopen that’s unconstitutional per se, but the fact that the president is not in the presence of the device when it’s being used. He said it should only be used in the rare case of a president being incapacitated, similar to the signing of a will by a person who is physically unable to do so.
On the same evening that his signature was being attached mechanically to the legislation to raise taxes, Mr. Obama was dining with first lady Michelle Obama and family friends at Alan Wong’s, one of the president’s favorite restaurants in Honolulu. Because of the use of the autopen, there was no ceremony or photo op of the signing.
One option to avoid the autopen would be to have the bill flown from Washington to wherever the president is traveling, although Bush advisers researched the use of the autopen partly because of the expense of flying a bill to a president when he’s overseas.