All bills for raising revenue shall originate in the House of Representatives; but the Senate may propose or concur with amendments as on other Bills.
Every bill which shall have passed the House of Representatives and the Senate, shall, before it become a law, be presented to the President of the United States; if he approve he shall sign it... (emphasis added)
So how did our President of the United States sign the momentous piece of legislation averting the so-called Fiscal Cliff? By autopen! It seems that President Obama was already annoyed that he was missing time on the golf course and the beach in Hawaii because of the Fiscal Cliff negotiations and he could not hang around for another day to perform the constitutional duties of his office after it was settled. Of course, it was Joe Biden who had to be called in to actually get the deal done the President found elusive for the last two months. The story on the autopen signing from ABC News.com.
President Obama has signed the “fiscal cliff” legislation into law via autopen from Hawaii, where he is vacationing with his family.
The bill to avert the “fiscal cliff” arrived at the White House late this afternoon and it was immediately processed, according to a senior White House official. A copy was delivered to the president in Hawaii for review. He then directed the bill to be signed by autopen back in Washington, D.C.
The Bush administration deemed in 2005 that the use of the autopen is constitutional, although President George W. Bush never used the mechanical device to replicate his signature on a bill.
The office of legal counsel found at the time 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.”
Our New President of the United States
However, bear in mind that this is just a legal opinion on how the attorneys in the Bush Administration thought the issue would be decided in a court of law. It is just an opinion. Nothing more. In fact, consider the portion of the legal opinion cited below where the attorneys cite legal memorandums of the Supreme Court that suggest that a personal signature is required. In addition, as recently as 1999, when fax technology and emails were also available, a contrary opinion came out of the Office of Legal Counsel of the Clinton Administration. As a result, bills were flown halfway around the world so that the President could personally sign necessary legislation. The Clinton Administration did not want to attempt trifling with the plain words of the U.S Constitution.
In reaching our conclusion, we recognize that from the Founding to the present day, the President has always signed bills by personally affixing his signature to them. Moreover, in recent years some unpublished opinions of this Office (though not our most recent opinion, see Whelan Memorandum) have suggested a constitutional basis for this practice. 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."); cf. 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).
Why is all of this important? Consider the facts and tell me what you would have done if you were President.
HR 8, the American Taxpayer Relief Act of 2012 is undoubtedly one of the most consequential pieces of tax legislation in our country's history. It permanently establishes tax rates and credits for over 98% of America's taxpayers. It amounts to $4 trillion in total tax savings for those taxpayers compared to what would have resulted with the expiration of the Bush tax cuts on December 31, 2012.
The bill, which was passed at around 11pm on January 1, had to be signed into law by the President before the recess of the old Congress by 11:59 am on January 3 or the legislation would have been null and void with the swearing in of the new Congress.
The bill made its way to The White House by the afternoon of January 2. However, Obama left Washington to return to Hawaii around midnight that day-or about 15 or 16 hours before the bill was ready for signature. Therefore, in order to get a few hours more vacation time this President resorted to "signing" one of the most significant pieces of legislation of his Administration by autopen? It truly is unbelievable. In fact, it seems to be a clear dereliction of his duties as President.
Let's consider the downside risk here.
Assume that someone challenges the constitutionality of the law on the basis that it was not signed by the President. The lawsuit goes through the courts and ends up in the Supreme Court in a couple years. The Supreme Court rules that, in fact, the law is invalid because it was not personally signed by the President. As a result, all of the tax cuts are to be ignored and back taxes are owed by everyone in the country for the last three years. Everyone in the country (except for the evil rich people who make more than $400,000) have underpaid their taxes for the last few years. The Internal Revenue Service is soon instructed to collect delinquent taxes (and interest) from all the taxpayers who did not pay their lawful amounts due. Showing great sensitivities to the awkward circumstances, the IRS graciously waives penalties on the underpayments.
The total bill for three years would be well in excess of $1 trillion.
Now, the fact that the law might be invalidated by the Court may only be a 1%, 2% or a .1% chance. However, if I am the President of the United States why do I ignore that risk merely to get an additional 15 hours of vacation time? Is his Wednesday golf game that important? In addition, if I am a Judge or Justice looking at the facts of this case where do I find the exigent circumstances to permit something that no other President found necessary to do over the course of 200 years?
Does anyone think that Mitt Romney or George W. Bush would have done this? Does anyone think that if they did the mainstream media would have let them get away with this without lambasting them?
Do we need to know any more about this President of the United States?
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| The Phone It In President Photo Credit: Steve Senne, AP |
Phone It In (third-person singular simple present phones it in, present participle phoning it in, simple past and past participle phoned it in)
- to choose to deliver a message by telephone when etiquette demands the effort and respect conveyed by in person communication
- (idiomatic) To fulfill a responsibility with a minimum effort rather than the appropriate level of effort.
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