The modern use of the autopen by presidents has been around for a few decades now, probably since Harry Truman.  It’s a useful mechanism.  The President’s signature is affixed to loads of documents, most having little public significance.

My father was a WWII veteran.  When he passed away, the family received a letter of condolence signed by the President.  Because my father’s name had an unusual spelling, they got it wrong — four times!  By the time we received a letter with his name properly spelled, nearly everyone in the family had their own copy.  It was nice to get an acknowledgement of his life and service, even if signed by the autopen.

In 2005, President George W. Bush was out of Washington D.C. when legislation related to medically-dependent Terri Schiavo was being rushed through Congress.  Knowing the likelihood of its passing while he was away, he sought clarification from the Department of Justice on whether the autopen could be used for signing legislation.

The DOJ responded with a 30-page memo titled, “Whether the President May Sign a Bill by Directing That His Signature Be Affixed to It”.  Their answer was yes, he could “direct a subordinate to affix the President’s signature to the bill.”  The memo answered a number of questions about how this process might take place.

Does it have to take place in the presence of the President?  No.  The opinion recognized this:

[A]n officer [in this case the President] need not be present to satisfy a statutory signing requirement by directing that his signature be affixed by another so long as the officer ensures—by specific authorization, instruction, or otherwise—that the signature reflects his own conscious and deliberate act.

What constitutes specific authorization or instruction?  The memo notes that,

[I]n 1969 we advised that the Secretary of State could sign extradition warrants for the President pursuant to ‘a letter from the President to the Secretary requesting him to affix a facsimile of the President’s signature, or to sign in his behalf, or both.’

Is there a limit on which sorts of documents may be signed in this way?  No.

The question of whether the President should manually sign his name to a document is primarily one of propriety rather than of law, and it is within the President’s discretion to determine which documents he wishes to personally sign and those with respect to which he wishes to delegate the signing to someone else in his behalf or have his own signature written or affixed by means other than his own hand.

Who decides to sign a bill, or other documents requiring the President’s signature?

The method of signing a bill that we approve here, however, does not entail any delegation of this decision—rather it simply involves a ministerial act performed by a subordinate at the President’s specific direction. As discussed above, the Department of Justice has repeatedly ‘distinguishe[d] between the physical signing of a document and the decision[1]making function involved with respect to the document.’

Finally, the memo notes,

Thus, 3 U.S.C. § 301, which generally authorizes the President to delegate ‘any function which is vested in [him] by law’ to the head of any department or agency, or any other officer required to be appointed by the President by and with the advice and consent of the Senate, also requires that such delegations be ‘in writing; and ‘published in the Federal Register.’

However, it goes on to state,

Nevertheless, we have concluded that ‘[w]here the only act delegated is the act of signing, it is not necessary to formally delegate the signing function by issuance of an Executive order and publication in the Federal Register pursuant to 3 U.S.C. § 301.’

Thus, the free-for-all we are witnessing today as the related actions of members of the Biden Administration are being thoroughly examined.

In the end, President Bush returned to Washington overnight to sign the bill in person.  Although it was Bush II who asked for the clarification of authority, it was Obama that put it into practice.  Right-thinking people are properly appalled at what has come out about the use of the autopen during the past four years.  It has to be said out loud — no one on the right trusts that the Democrats will not repeat putting a “waxen effigy” into the presidency in the future.

It’s time for Congress to step up to the plate.  Should this densely packed but never-the-less ambiguous memo continue to control presidential signings?  A simple bill, costing the federal government nothing to implement, would fix this nicely.

Are there documents that the president must sign in person?  Appointments to the judiciary?  Ambassadorships?  Legislation?  Executive Orders?  Commissions?  Pardons and commutations?  Extradition warrants?  How should subordinates be “directed” to sign either on behalf of the president, or using his signature via autopen?

We are living in the 21st century.  We’ve used electronic transmission of documents for a while now.  Would it be too much to have the president just sign (in person) a memorandum detailing who is directed to use the presidential autopen and for what purpose?  Then a copy of that memo could be appended to every document thus signed.  Would that be so hard?

Author’s credit: Anony Mee is the nom de blog of a retired public servant who X-tweets at oh_yeahMee.

Image: American Thinker.