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Posted at 10:47 AM ET, 06/17/2011

Lawmakers call on Obama to re-sign Patriot Act, question previous autopen signature

A group of 21 Republican House members, including 10 freshmen, is calling on President Obama to re-sign a measure extending key provisions of the Patriot Act, three weeks after he directed that it be signed into law through the use of an autopen.

Obama was traveling overseas at the time.

“Mr. President, it is clear that assigning a surrogate the responsibility of signing bills passed by Congress is a debatable issue, and could be challenged in court,” the lawmakers write in the letter.

“That being the case, our request is that, out of an abundance of caution, you affix your signature to S. 990 by personally re-signing the enrolled bill. We recall you retaking the Oath of Office on January 21, 2009, over similar concerns for adhering to the Constitution, and believe your signing legislation passed by the United States Congress is of equal importance.”

The lawmakers add that they believe Obama should “commit to ending the practice of using an autopen to sign bills passed by Congress.”

Rep. Tom Graves (R-Ga.), one of the House members signing the letter, wrote to Obama in May contending that the president may have violated the Constitution by authorizing the use of an autopen to sign the Patriot Act extension. At the time, the White House, which had only a few hours to sign the measure before the current Patriot Act extension was set to expire, argued that the use of the autopen was constitutional.

And in 2005, the Office of Legal Counsel under the Bush administration wrote an opinion stating that the use of an autopen would not violate the Constitution. Those assurances appear not to have satisfied the Republican House members.

“Despite the 2005 opinion of the OLC, neither President George W. Bush nor any of your predecessors assigned a surrogate, or autopen, to sign a bill into law,” the letter states. The lawmakers add that the White House has not yet responded to Graves’s initial letter.

While the lawmakers contend that their concerns could be resolved by Obama’s re-signing the law, if the use of the autopen were in fact found to be unconstitutional, matters could become more complicated, as that would imply that the measure Obama “signed” in late May actually never became law.

That would mean that for the past three weeks, the three key Patriot Act provisions that were extended by the measure have actually expired, and Congress might then have to begin the process of reauthorizing the Patriot Act provisions all over again.

So far, the concerns of the Republican House members do not appear to be shared by congressional GOP leaders.

“I think that’s a better question to address to [the White House],” Senate Minority Leader Mitch McConnell (R-Ky.) said at a news conference late last month when asked about the autopen controversy. “They did the research and their lawyers apparently advised them that this was permissible. I haven’t looked at the legality of it and, therefore, don’t have an opinion to express on it.”

The lawmakers’ full letter to Obama is below.

June 17, 2011

President Barack Obama

The White House

1600 Pennsylvania Avenue NW

Washington D.C. 20500

Mr. President:

On May 26, 2011, the United States Senate and House of Representatives passed S. 990, the “PATRIOT Sunsets Extensions Act of 2011.” Shortly before midnight, the White House press secretary released a statement that you signed the bill into law.

However, your Administration later confirmed that you authorized the use of an autopen to sign S. 990. Mr. President, your use of the autopen appears contrary to the Constitution.

Article I, section 7 of the United States Constitution states:

“Every bill which shall have passed the House of Representatives and the Senate, shall, before it becomes a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it…”

On May 27, 2011, Congressman Tom Graves wrote you to request an explanation for your Constitutional authority to assign a surrogate the responsibility of signing bills passed by Congress into law. As of today, Congressman Graves has yet to receive a response from the White House.

While the July 7, 2005, opinion of the Office of Legal Counsel (OLC) to President George W. Bush on using a surrogate to sign bills into law was apparently the basis for your decision, we are compelled to point out that the memorandum provides a long list of dissenting opinions. On pages 25-26, the OLC memorandum cites the following:

-- “See Rehnquist Letter at 2 (concluding that ‘with the exception of signing bills passed by Congress, there is no legal impediment to the delegation of the act of signing and that the question of which documents the President should personally sign is largely one of propriety rather than of law’) (emphasis added)”

-- “Scalia Memorandum at 1 (citing Rehnquist Memorandum and stating that ‘]t]he signing of bills passed by the Congress is one exception which may require the President’s personal signature’) (emphasis added)”

-- “Memorandum to Files from Ralph W. Tarr, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Presidential Signing of Bankruptcy Extension Act at 9-10 (June 13, 1984) (‘Tarr Memorandum’) (‘We therefore concluded that it was necessary for the President physically to sign the bill in order for it to become a law.’)”

--“Wilkey Memorandum at 10 (‘a bill would seem to present an a fortiori case in which under the Constitutional provision the signification of the President’s approval requires an exercise of personal discretion and therefore cannot be delegated’)”

--“Rehnquist Memorandum at 2 (‘the requirement for the President’s signature as well as his decision approving a bill would appear to be non-delegable’)”

-- “Indeed, on at least two occasions, a bill was flown halfway around the world, on the advice of this Office, so that the President could personally affix his signature to it. See Tarr Memorandum at 9 (China) see also Memorandum to File from Jeffrey P. Singdahlsen, Attorney-Adviser, Office of Legal Counsel, Re: Preliminary Advice and Consideration Regarding Proposal to Fax Continuing Resolution to the President While He Was Abroad at 1 (Dec. 22, 1999) (Turkey).”

Despite the 2005 opinion of the OLC, neither President George W. Bush nor any of your predecessors assigned a surrogate, or autopen, to sign a bill into law.

Mr. President, it is clear that assigning a surrogate the responsibility of signing bills passed by Congress is a debatable issue, and could be challenged in court. That being the case, our request is that, out of an abundance of caution, you affix your signature to S. 990 by personally re-signing the enrolled bill. We recall you retaking the Oath of Office on January 21, 2009, over similar concerns for adhering to the Constitution, and believe your signing legislation passed by the United States Congress is of equal importance. Furthermore, we ask that you commit to ending the practice of using an autopen to sign bills passed by Congress.

Thank you for your consideration of this matter. We look forward to your response.

Sincerely,

Tom Graves, GA-9

Justin Amash, MI-3

Jeff Duncan, SC-3

Allen West, FL-22

Tom Reed, NY-29

Jeff Landry, LA-3

Patrick McHenry, NC-10

Andy Harris, MD-1

Jason Chaffetz, UT-3

Jack Kingston, GA-1

Raul Labrador, ID-1

Steve Southerland, FL-2

Bill Posey, FL-15

Louie Gohmert, TX-1

Phil Gingrey, GA-11

Marlin Stutzman, IN-3

Roscoe Bartlett, MD-6

Tom Rooney, FL-16

Rob Bishop, UT-1

Steve Pearce, NM-2

Bill Flores, TX-17

By  |  10:47 AM ET, 06/17/2011

 
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