President Obama’s Signature Legislation

A Check Signing Machine, An Early Version of the Auto Pen

A handful of House Republicans recently challenged the constitutionality of President Obama’s extension of the Patriot Act, signed into law on May 26, 2011.  Interestingly, this challenge had nothing to do with the provisions of the far-reaching law.  Rather, their objection stemmed from the fact that the bill was signed by the robotic arm of an autopen rather than the President’s own hand.

In response to Obama’s presidential sleight of hand, a group of 21 Republicans have penned a letter to the President requesting that he re-sign the bill without the assistance of his right-hand robot.  In doing so, the Republicans pointed to 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 becomes Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it…”

Unfortunately, the Constitution is unlikely to offer much in the way of specifics about the autopen, which, even in its earliest incarnation, was not invented until 1803—14 years following the ratification of the U.S. Constitution.

Created by John Isaac Hawkins, the autopen—then called a polygraph—was little more than a poor-man’s copy machine.  The earliest version consisted of two pens connected through a fixed arm.  As the operator wrote with one pen, the second pen replicated the motions of the first, producing nearly-perfect copies.

It didn’t take long for President Jefferson to see the value in the machine.  He began using the autopen at Monticello in 1804 and called it “one of the finest inventions ever.”  Today, many of his extant papers are the products of the early autopen.

By the end of the century, this concept was improved by Thomas Edison, who combined a reciprocating needle, an electronic motor, and a duplicating press to develop the electric pen and copier.  One of the first electronic consumer devices produced in the United States, the machine allowed a single user to create a hand-written master that could be replicated up to 5,000 times on Edison’s duplicating press.

But the product was awkward to use.  According to Randall Stross, author of The Wizard of Menlo Park, one customer compared it to holding “a wasp on a sheet of paper and letting the insect sting holes into the sheet while you move him back and forth.”

The product never really caught on, at least not in its original guise.  It’s worth noting, however, that Albert Blake Dick licensed Edison’s patents and created the mimeograph, while Samuel O’Reilly adapted the electric pen to create the first tattooing device.

Such machines were helpful to archivists and tattoo artists, but they did little for the busy executive who, by the dawn of the 20^th century, was required to sign thousands of documents, many addressing superficial or idiosyncratic concerns.

President Andrew Johnson tried to get around the workload problem by “signing” his correspondence with a rubber stamp, but such “signatures” were blatantly phony.  Other presidents used surrogate signers, many of which could replicate their boss’s signature with great skill.

Not, however, with the same skill level as the modern autopen, which was first marketed nationally in the early 1940s.  This device improved upon its mechanical predecessors by memorizing the movements used to create a person’s signature and then replicating the signature as needed with a robotic arm.  In this manner, a signature could be programmed once and replicated on thousands of subsequent original documents.  The stroke of an autopen freed the President from the drudgery of penned persiflage while maintaining the illusion of a personal touch.

According to Lindsay De Shazo, Vice-President of Automated Signature Technology and the son of one of the early developers of the modern autopen, the first President to use the device in the White House was Dwight Eisenhower.  Its use expanded under Kennedy, who stored and used four different versions of his signature to give his correspondence the appearance of day-to-day variation.

By the mid 1970s, the President was sending out almost 200,000 simulated signatures a year.  With that volume of correspondence, problems were inevitable.  In the 1990s, for example, President Clinton apparently signed a document authorizing some questionable fundraising practices, but he argued that his staff had mistakenly used the autopen without his explicit approval. And there was the embarrassing time in the early 1970s when a grieving Vietnam-War widow wrote President Nixon in protest of the war, only to receive a response reading, “Thank you for your support of the honorable Spiro Agnew.”  But these were user errors, not the fault of the First Robot.

Despite the machine’s extensive use in the White House, Presidents have reserved their manual signatures for important pieces of official business.  We can hope, for example, that President Ford did not use an autopen to spare Nixon the federal pen with his 1974 pardon.  Moreover, no president has used the autopen to sign a piece of legislation—until, that is, May 26, 2011, when Obama found himself in France hours before the Patriot Act was set to expire, faced with the option of letting the bill lapse or signing the bill by proxy.

Which brings us back to the letter signed—hand signed, one assumes—by 21 Republican House members.  Despite the Republicans’ objections, the Constitution appears to be on the President’s side.  At least this was the view of the Bush White House, whose Office of Legal Counsel provided a 29-page brief advising that an autopen signature on legislation was constitutionally valid.

Jay Wexler, Professor of Law at Boston University, also believes the autopen signature to be constitutionally valid, noting that while the Republican challenge isn’t “frivolous,” the “better argument is on the other side, even from a strict textual conservative” point of view.

Lacking constitutional support for their position, it appears that about the worst the House Republicans can say about the President, at least on this issue, is that he’s no John Hancock.

Note: Professor Jay Wexler’s upcoming book, Odd Clauses, will be out in the fall.  The book is an insightful and light-hearted look at the lesser-known clauses of the U.S. Constitution.

Odd Clauses, by Boston University Professor of Law, Jay Wexler

This column was published in the Huntsville Item on Thursday, June 23, 2011.