Fresh off the hullabaloo last month regarding whether President Obama could direct that the Patriot Act extension be signed by autopen comes another interesting development in the “technology meets the Constitution” saga, again having to do with the Presentment Clause of Article I, Section 7 of the Constitution. That provision says that every bill that passes both the House and the Senate must be “presented to the President of the United States,” who, if he does not wish to sign it, “shall return it, with his Objections . . .” Apparently the clerk’s office at the White House, in coordination with the relevant offices at the House and Senate, are considering setting up a secure system for Congress to send a bill to the President electronically if necessary and for the President to return the bill electronically if necessary. At some point, the White House Counsel asked the Justice Department whether such a system would be constitutional.
In a memorandum opinion signed by Jonathan Cedarbaum, a Deputy Assistant Attorney General at the Office of Legal Counsel in DoJ (and, in the interest of full disclosure, a friend and former co-worker) and dated May 3, 2011, OLC said yes, electronic to and fro between the Congress and the President is indeed consistent with Article I, Section 7. It’s a long and detailed opinion, marked by the care and rigor that distinguishes all of Cedarbaum’s work, and I won’t try and relate it all here. Instead, I’ll just reprint a key summary paragraph. If you want to read the opinion in full, it is here. There are some really interesting details in the opinion that I will talk about in posts later this week, so if you want to know more about what the White House has done in the past when it has lost enrolled bills sent over by Congress (it’s happened–more than once), come back later. For now, here’s the paragraph:
We believe that use of electronic means of presentment and return are permitted by the Constitution. As far as we are aware, the terms “presented” and “return” as used in Article I, Section 7 are not terms of art but rather take their meanings by reference to common usage. Nothing in their usual meanings excludes transmission by electronic means. Nor is electronic transmission inconsistent with the purposes of presentment and return. And historical practice confirms that Congress and the President have long adopted a pragmatic approach to such logistical matters, an approach that allows for some flexibility and revision in light of technological developments and special circumstances.