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Journal of Technology Law & Policy

Document Type

Article

Abstract

This Article explores multiple facets of the President’s use of a proxy signature to sign legislation. In particular, the house-of-cards 2005 Office of Legal Counsel’s memorandum to President George W. Bush making the legal case for the use of a non-presence proxy to sign bills (the “Nielson Memorandum”) will be critiqued.

In Part I, this Article details the constitutional underpinnings of the Presidential signature requirement. Part II of this Article discusses the origins of proxy signatures, specifically the associated presence requirement for proxy signatures. The origins date back to the Statute of Frauds and then the Statute of Wills. As the starting point for analysis of proxy signatures generally, the longstanding and extensive body of law associated with proxy signatures for wills is the most important lens to view the requirements for Presidential proxy signatures. Part II continues with a detailed exploration of the law of will proxy signatures. This law forms the bedrock of interpreting Article I, § 7 Presidential signature requirement. Part III critiques the Nielson Memorandum’s treatment of the presence requirement for proxy signatures. This critique includes a look at the Nielson Memorandum’s cites to the lessons of will executions that require the proxy to be present, though the memorandum ignores these same lessons in a shoddy attempt to explain away the presence requirement in a footnote. Part IV examines potential negative consequences that could flow from a void Presidential signature on a bill. Finally, Part V concludes.

In sum, the President’s use of the autopen (or even a human being) to sign a bill outside of the President’s presence is unconstitutional. This establishes a dangerous precedent, one which every thinking lawyer in Washington politics seems to have overlooked.

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