What Does “Sign” Mean?

The Constitution provides that, “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, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it.” President Obama, who is out of the country, plans to have his signature affixed to it, but not to sign it personally by hand. Will that invalidate the bill?

A 2005 Office of Legal Counsel opinion says that such a procedure is fine:

You have asked whether, having decided to approve a bill, the President may sign it, within the meaning of Article I, Section 7 of the Constitution, by directing a subordinate to affix the President’s signature to it, for example by autopen. This memorandum confirms and elaborates upon our earlier advice that the President may sign a bill in this manner. See Memorandum for Alberto R. Gonzales, Counsel to the President, from M. Edward Whelan III, Principal Deputy Assistant Attorney General, Office of Legal Counsel, Re: Signing of H.J. Res. 124 (Nov. 22, 2002) (“Whelan Memorandum”). We emphasize that we are not suggesting that the President may delegate the decision to approve and sign a bill, only that, having made this decision, he may direct a subordinate to affix the President’s signature to the bill.

Our analysis proceeds as follows: In Part I, 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. We then review opinions of the Attorney General and the Department of Justice and find the same understanding reflected in opinions addressing statutory signing requirements in a variety of contexts. 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. In Part II, we consider the settled interpretation of the related provisions of the same section of the Constitution that require that bills be presented to the President and that the President return to Congress bills he disapproves, and find that this interpretation confirms our view of Article I, Section 7’s signing requirement. In Part III, we consider practice and precedent relating to the constitutional signing requirement and show that they do not foreclose our conclusion.

The memo strikes me as persuasive — but even if it’s mistaken, and the signature-by-autopen is invalid, this won’t keep this particular bill from becoming law, though it will briefly delay it. The Constitution provides that “If any Bill shall not be returned [i.e., vetoed -EV] by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.” It takes an affirmative veto, or the adjournment of the session before ten days elapse (a so-called “pocket veto”), to stop the bill from becoming law. So a bill that is not validly signed, like a bill that is not signed at all, will still become law within ten days, unless it’s submitted shortly before adjournment (and there’s no adjournment of Congress looming in this particular case).

Finally, it’s possible that even an invalidly signed bill might still be treated as valid under an analogy to the enrolled bill rule; but that’s not clear, and I don’t think we need to get to that question in this case, for the reasons given above. Thanks to Ronny Risinger for raising the question.

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