Last night, with President Obama faraway in France and provisions of the Patriot Act set to expire at midnight, the commander-in-chief awakened at 5:45 a.m. and called on his "autopen" to immediately sign the bill into law. The device replicated Obama's signature and, as a result, the government's post-9/11 roving wiretap privileges were secured. "It's an important tool for us to continue dealing with an ongoing terrorist threat," said Obama, after a meeting with French President Nicolas Sarkozy. So what is this device and how is it legal when constitutionally, the president presumably must sign a bill before it becomes law? Schoolhouse Rock did not cover this.
Jay Wexler, a Boston University law professor who literally wrote a book on the autopen, told ABC News the constitutionality of the autopen was settled in a 2005 Office of Legal Counsel opinion [PDF]. He points to this crucial passage written by then-deputy attorney general Howard Nielson:
We examine the legal understanding of the word 'sign' at the time the Constitution was drafted and ratified and during the early years of the Republic. We find that, pursuant to this understanding, a person may sign a document by directing that his signature be affixed to it by another. … Reading the constitutional text in light of this established legal understanding, we conclude that the President need not personally perform the physical act of affixing his signature to a bill to sign it within the meaning of Article I, Section 7 [of the Constitution.]
Over at Gawker, Seth Bramovitch chronicles the history of the autopen in American politics. "Harry Truman is thought to have been the first sitting president to use the autopen with any regularity," he writes. "You can find examples, like this autopen-signed thank-you note, for sale on eBay." President Kennedy reportedly used the autopen liberally, "for nearly any signature that wasn't of significance." More recently in 2004, then-secretary of defense Donald Rumsfeld spawned a mini-controversy when it was discovered he used an autpen for letters of condolences to families of soldiers killed in Iraq and Afghanistan. He provides a link to an autopen in action here.