Whether the President May Sign a Bill by Directing That His Signature Be Affixed to It ( 2005 )

Whether the President May Sign a Bill by Directing
That His Signature Be Affixed to It
The President need not personally perform the physical act of affixing his signature to a bill he
approves and decides to sign in order for the bill to become law. Rather, the President may sign a
bill within the meaning of Article I, Section 7 by directing a subordinate to affix the President’s
signature to such a bill, for example by autopen.
July 7, 2005
MEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT
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. 1
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.
1
Practical reasons why the President might wish to proceed in this manner are apparent. For
example, the President may be away from Washington, D.C., when Congress presents an enrolled bill
to the White House, and he may wish it to take effect immediately (for example to prevent a
government shutdown, to avoid lapses in authority, or to approve new authorities without delay).
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I.
Article I, Section 7 provides in relevant part as follows:
Every Bill which shall have passed the House of Representatives and
the Senate, shall, before it become a Law, be presented to the Presi-
dent of the United States; If he approves 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.
U.S. Const. art. I, § 7, cl. 2. Neither the constitutional text nor the drafting and
ratification debates provide further guidance regarding what it means for the
President to “sign” a bill he approves. See Memorandum for Gerald D. Morgan,
Special Counsel to the President, from Malcolm R. Wilkey, Assistant Attorney
General, Office of Legal Counsel, Re: Responsibility of the President to Sign Bills
Passed by the House and the Senate at 2 (Aug. 19, 1958) (“Wilkey Memoran-
dum”) (“Research has not disclosed any record of debate concerning the specific
responsibility which the Founding Fathers sought to place upon the President by
the word ‘sign.’ Nor does any evidence give reason to think that the word was
used other than in its commonly-understood meaning.”). However, the word
“sign” had a generally understood legal meaning that was well established at
common law when the Constitution was drafted and ratified and that continued
throughout the Republic’s early years (and beyond). Under this well-settled legal
understanding, an individual could sign a document by directing that his signature
be affixed to it by another. Opinions of the Attorney General and the Department
of Justice have repeatedly applied this understanding in various contexts to
conclude that Executive Branch officials, including the President, may satisfy
statutory signing requirements in this manner. This settled understanding of the
meaning of “sign” leads us to conclude that Article I, Section 7 permits the
President to sign a bill by directing a subordinate to affix the President’s signature
to it.
A.
We begin with the common law meaning of the word “sign” at the time the
Constitution was drafted and ratified and during the early years of the Republic. It
is well settled that “where Congress borrows terms of art in which are accumulated
the legal tradition and meaning of centuries of practice, it presumably knows and
adopts the cluster of ideas that were attached to each borrowed word in the body of
learning from which it was taken and the meaning its use will convey to the
judicial mind unless otherwise instructed.” Morissette v. United States, 342 U.S.
246, 263 (1952). A similar rule of construction applies in constitutional interpreta-
tion. See, e.g., Crawford v. Washington, 541 U.S. 36, 54 (2004) (holding that the
constitutional right of the accused “‘to be confronted with the witnesses against
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Whether President May Sign Bill by Directing That His Signature Be Affixed to It
him,’ Amdt. 6, is most naturally read as a reference to the right of confrontation at
common law, admitting only those exceptions established at the time of the
founding”); Payton v. New York, 445 U.S. 573, 591 (1980) (interpreting the Fourth
Amendment prohibition of “unreasonable searches and seizures” by looking to
“the common-law understanding of an officer’s authority to arrest” as “obviously
relevant, if not dispositive” evidence “of what the Framers of the Amendment
might have thought to be reasonable”). As Justice Story explained, “[t]he exis-
tence, therefore, of the common law is not only supposed by the constitution, but
is appealed to for the construction and interpretation of its powers.” United States
v. Coolidge, 25 F. Cas. 619, 619 (C.C.D. Mass. 1813) (No. 14,857) (Story, J.)
(listing, as examples, various provisions of the Constitution that must be interpret-
ed in light of the common law), rev’d on other grounds, 14 U.S. 415 (1816).
Common law decisions from the early years of the Republic can also illuminate
the original meaning of the constitutional text, absent evidence that they reflect a
break with common law principles that prevailed at the time the Constitution was
drafted and ratified. See, e.g., United States v. Watson, 423 U.S. 411, 418–20
(1976) (looking at early common law decisions in interpreting the Fourth Amend-
ment’s reasonableness requirement); In re Winship, 397 U.S. 358, 361–62 (1970)
(same for Due Process Clause of the Fifth Amendment).
At the time the Constitution was drafted and ratified, and continuing thereafter,
courts in England and the United States applied the rule that “when a document is
required by the common law or by statute to be ‘signed’ by a person, a signature of
his name in his own proper or personal handwriting is not required.” Finnegan v.
Lucy, 157 Mass. 439, 440 (1892) (noting that this rule “was and still is very
generally held”; collecting early English and American authorities); see also id. at
443 (“Signing does not necessarily mean a written signature, as distinguished from
a signature by mark, by print, by stamp, or by the hand of another.”). Rather, under
the “principle of signatures,” the common law recognized that one could sign a
document not only with one’s own hand, but also by the hand of another who was
properly authorized to affix one’s signature to the document on one’s behalf or
who did so in one’s presence. Furthermore, a document signed in one’s name by
the hand of another in either of these manners was equally effective as a document
signed with one’s own hand.
Although the precise origins of the principle of signatures are not clear, they
appear to trace back at least as far as Lord Lovelace’s Case, 82 Eng. Rep. 140, Sir
Wm. Jones Rep. 268 (J. Seate 1632), where it was said:
[I]f one of the officers of the forest put one seal to the Rolls by as-
sent of all the Verderers, Regarders, and other Officers, it is as good
as if every one had put his several seal, as in case divers men enter
into an Obligation, and they all consent, and let but one seal to it, it is
a good Obligation of them all.
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Id. at 141. This case thus appears to have recognized that a person required to seal
a document need not affix his seal to it personally if he agrees to be bound by the
seal of another and, more generally, that the identity of the person who affirms a
legal document need not correspond to the identity of the person who affixes a
mark upon that document to signify that affirmation. 2
English courts subsequently extended the principle recognized in Lord Love-
lace’s Case to situations where one person actually affixes another’s signature to a
document. In Nisi prius coram Holt, 12 Mod. Rep. 564, 564 (1701), Chief Justice
Holt held that “if a Man has a Bill of Exchange, he may authorize another to
indorse his Name upon it by Parol; and when that is done, it is the same as if he
had done it himself.” Importantly, this case held that the law will not distinguish a
document signed by one’s own hand from a document signed in one’s name by the
hand of another acting on one’s behalf. The signature is equally valid if it is
affixed in either manner. Thus, by 1701, Nisi prius coram Holt and Lord Love-
lace’s Case had established the fundamental basis for the principle of signatures.
Some have traced the principle of signatures even earlier, to Combe’s Case,
decided in 1614. As reported by Chief Justice Coke, this case held that when one
person has authority to act for another, he should do so in the name of the person
on whose behalf he acts. The court explained:
[W]hen any has authority as attorney, to do any act, he ought to do it
in his name who gives the authority, for he appoints the attorney to
be in his place, and to represent his person; and therefore the attor-
ney cannot do it in his own name, nor as his proper act, but in the
name and as the act of him who gives the authority. . . . [B]ut if at-
tornies have power by writing to make leases by indenture for years,
&c. they cannot make indentures in their own names, but in the name
of him who gives the warrant.
Combe’s Case, 77 Eng. Rep. 843, 847, 9 Co. Rep. 75, 76–77 (1614). 3 This
decision firmly established that an agent could, and often must, affix his
principal’s signature to legal documents to conduct business on the principal’s
behalf. As one court later observed, “[i]t does not appear that the authority of
2
The “Verderers, Regarders, and other Officers” referred to in Lord Lovelace’s Case comprised the
Court of Sweinmote, a forest court that, among other things, would certify convictions for violations of
the forest laws to the Court of Justice Seate for entry of judgment. 3 William Blackstone, Commen-
taries *72. Although the language quoted in the text appears to reflect the argument of the Attorney
General, nothing in the terse report of this decision suggests that the Court disagreed with this
language, and litigants and judges in subsequent cases have treated it as reflecting the holding of the
Court. See, e.g., Ball v. Dunsterville, 100 Eng. Rep. 1038, 1039, 4 Term Rep. 313, 314 (K.B. 1791);
Simonds v. Ludlow, 2 Cai. Cas. 1 (N.Y. Sup. Ct. 1805); Cady v. Sheperd, 28 Mass. 400, 404 (1831).
3
Chief Justice Coke’s reporter does not clearly indicate whether Combe’s Case was decided by the
Court of Common Pleas or the Court of King’s Bench.
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Whether President May Sign Bill by Directing That His Signature Be Affixed to It
Combe’s case is at all shaken by more modern decisions. All concur in laying it
down as an indispensable requisite, to give validity to a deed executed by an
attorney, that it should be made in the name of the principal.” Elwell v. Shaw,
16 Mass. 42, 46 (1819); see also Stone v. Wood, 7 Cow. 453, 454 (N.Y. Sup. Ct.
1827) (“When an agent or attorney contracts on behalf of his principal, he must
do so in the name of the principal, or the latter is not bound. When any one has
authority to do an act, it should be done in the name of him who gives the
authority; not in the name of the attorney. All the subsequent cases agree in the
law as thus laid down by Coke. There is no contradiction on the subject.”).
Significantly for our purposes, it appears to have been generally understood, as a
corollary to the rule set down in Combe’s Case, that “[w]hen the name of the
principal is subscribed by his agent, the former is liable in his own name on the
contract, because, in law, the signature is his.” Patterson v. Henry, 27 Ky. 126,
127 (1830) (emphasis added); see also Locke v. Alexander, 8 N.C. 412, 415
(1821) (“Attorneys are the mere instruments of their principals: the principals
act by them, and the act, to be the act of the principal, must be done in his
name.”).
The principle of signatures was thus established by Lord Lovelace’s Case, Nisi
prius coram Holt, and Combe’s Case long before the Constitution was drafted and
ratified, and, with increasing frequency, courts in England and the United States
continued to apply the principles set forth in these cases during the drafting and
ratification period and the early years of the Republic. They did so most frequently
in the context of agency law. Because the law of agency permitted a principal to
conduct virtually any business through an agent, agents often would be called
upon to sign documents in the course of exercising their delegated authority, and
courts generally upheld agreements signed by an agent in his principal’s name.
See, e.g., Wilks v. Back, 102 Eng. Rep. 323, 324, 2 East 142, 144 (K.B. 1802)
(Grose, J.) (“I accede to the doctrine in all the cases cited, that an attorney must
execute his power in the name of his principal and not in his own name; but here it
was so done”); Campbell v. Baker, 2 Watts 83, 84 (Pa. 1833) (“The general rule is,
that a person signing a contract as an agent merely, must sign the name of his
principal, as was done here.”). 4
4
Conversely, most courts held that a document signed by an agent in his own name rather than his
principal’s was void. See, e.g., Frontin v. Small, 92 Eng. Rep. 423, 424, 2 Ld. Ray. 1418, 1419 (Ex.
1726) (“lease was void, because it was not made in the name of James Frontin, whose house it
appeared to be”); Bogart v. De Bussy, 6 Johns. 94, 96 (N.Y. Sup. Ct. 1810) (citing Frontin v. Small);
Fowler v. Shearer, 7 Mass. 14, 19 (1810) (“it must be the act and deed of the principal, done and
executed by the [agent] in his name”). The general rule, explained by Chancellor Kent, was that
“[w]hen a man acts in contemplation of law, by the authority, and in the name of another, if he does an
act in his own name, although alleged to be done by him as attorney, it is void.” Simonds v. Catlin,
2 Cai. R. 61, 65 (N.Y. Sup. Ct. 1804). Courts even applied this rule in cases where it was clear that the
principal intended to bind himself by a document signed by his agent, on the ground that “the law looks
not to the intent alone, but to the fact whether that intent has been executed in such a manner as to
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Thus, for example, consistent with Nisi prius coram Holt, an agent could en-
dorse a commercial bill in his principal’s name. See, e.g., Daniels v. Burnham,
2 La. 243, 245 (1831) (“It is a general rule, to which there are few exceptions, that
no person is responsible on a bill of exchange, but those who are parties to it, and
whose names are on it. This rule extends, as well to bills drawn by agents as by
others, and unless (with the exception of very particular cases) they sign in the
name of the principal, he is not bound. So rigid is the commercial law.”). As the
New York Supreme Court of Judicature observed, “[t]here is no doubt that a
person may draw, accept or endorse a bill by his agent or attorney, and that it will
be as obligatory upon him as though it were done by his own hand.” Pentz v.
Stanton, 10 Wend. 271, 275 (N.Y. Sup. Ct. 1833). “But,” the court also noted, “the
agent in such case must either sign the name of the principal to the bill, or it must
possess a legal validity.” Clarke’s Lessee v. Courtney, 30 U.S. 319, 349 (1831) (Story, J.); see also
Elwell v. Shaw, 16 Mass. 42 (1819).
Other courts, however, required the principal’s rather than the agent’s signature only for deeds and
other documents under seal. See, e.g., Copeland v. Mercantile Ins. Co., 23 Mass. 198, 203 n.2 (1828)
(“The rule that an attorney or agent, to bind his principal, must sign the name of the principal, applies
only to deeds and not to simple contracts.”); New England Marine Ins. Co. v. De Wolf, 25 Mass. 56,
61–62 (1829) (“The authorities cited to maintain the position, that the name of the principal must be
signed by the agent, are of deeds only; instruments under seal; and it is not desirable that the rigid
doctrine of the common law should be extended to mercantile transactions of this nature, which are
usually managed with more attention to the substance than to the form of contracts.”); cf. M’Donough
v. Templeman, 1 H. & J. 156, 161 (Md. 1801) (“If an agent contracts by parol for his principal he may
do so in his own name; but a deed by an attorney to bind his principal, must be in the name of the
principal, and signed in his name.”). And some courts held that a document signed in the agent’s name
would (or at least in some circumstances could) bind the agent. See Taft v. Brewster, 9 Johns. 334, 334
n.a (N.Y. Sup. Ct. 1812) (“Where one enters into a covenant, though he describes himself as the agent
of another, and covenant as such, but sign and seal in his own name, he is liable personally.”); Duvall v.
Craig, 15 U.S. 45, 56 n.a (1817) (“Where a person acts as agent for another, if he executes a deed for
his principal, and does not mean to bind himself personally, he should take care to execute the deed in
the name of his principal, and state the name of his principal only, in the body of the deed.”); Patterson
v. Henry, 27 Ky. 126, 127 (1830) (“[A]s a general rule, the agent makes himself individually liable, by
substituting his own name as agent for that of his principal.”); Godley v. Taylor, 14 N.C. 178, 179
(1831) (“Where an agent wishes to be excused from obligations or covenants into which he enters, he
should affix the name of his principal to the deed. When he does not do so, but only signs his own
name as agent, he is personally answerable. For in such case he undertakes for his principal. He
undertakes as agent, or as surety for his principal, that if the latter will not perform the contract, he will
answer for him, in the manner stipulated.”) (internal citations omitted); cf. 2 James Kent, Commen-
taries on American Law *631 (“The attorney who executes a power as by giving a deed, must do it in
the name of his principal; for if he executes it in his own name, though he describes himself to be agent
or attorney of his principal, the deed is held to be void; and the attorney is not bound, even though he
had no authority to execute the deed, when it appears on the face of it to be the deed of the principal.
But if the agent binds himself personally, and engages expressly in his own name, he will be held
responsible, though he should, in the contract or covenant, give himself the description or character of
agent.”). Although, as these authorities illustrate, the consequences of an agent affixing his own name
to a document instead of his principal’s were not always clear, none of the authorities questioned the
rule that if a properly authorized agent affixed his principal’s name to a document, the signature would
be as valid as if the principal had affixed it himself.
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Whether President May Sign Bill by Directing That His Signature Be Affixed to It
appear on the face of the bill itself, in some way or another, that it was in fact
drawn for him, or the principal will not be bound. The particular form of the
execution is not material, if it be substantially done in the name of the principal.”
Id.Similarly, an agent could execute and sign a deed in his principal’s name. 5 See,
e.g., White v. Cuyler, 101 Eng. Rep. 497, 497, 6 Term. Rep. 176, 177 (K.B. 1795)
(Kenyon, C.J.) (“in executing a deed for the principal under a power of attorney,
the proper way is to sign in the name of the principal”) (citing Combe’s Case);
M’Donough v. Templeman, 1 H. & J. 156, 161 (Md. 1801) (“a deed by an attorney
to bind his principal, must be in the name of the principal, and signed in his
name”); Stinchfield v. Little, 1 Me. 231, 234 (1821) (“It seems to have been settled
or recognized as law in Courts of justice by judges, distinguished for their wisdom
and learning, in successive generations, and under different governments, that in
order to bind the principal or constituent, and make the instrument his deed, the
agent or attorney must set to it the name and seal of the principal or constituent,
and not merely his own.”); Mears v. Morrison, 1 Ill. 223, 223 (1827) (“The usual
and appropriate mode of signing a deed by an agent or attorney, is for him to sign
his principal’s name, and then to sign his own name, as agent.”); Patterson v.
Henry, 27 Ky. 126, 128 (1830) (“A deed signed and sealed by the attorney in fact,
and in his own name for his constituent, is not the deed of the latter; and therefore
will not pass his title. The authority in such case, is simply to sign the name and
affix the seal of the principal.”) (internal citation omitted); cf. Fowler v. Shearer,
7 Mass. 14, 19 (1810) (“At common law, the deed of a married woman is not
merely voidable but is absolutely void; and she may plead generally non est
factum. But the husband may make his wife his attorney; and as his attorney she
may execute a deed in his name, and may put his seal to it; and may, before a
magistrate, acknowledge it to be her husband’s deed. And he shall be bound by it
as effectually as by a deed executed personally by himself.”).
Enacted in 1677, the original Statute of Frauds incorporated the principle of
signatures by providing that certain contracts, such as contracts for the sale of
land, had to be in writing and signed by the persons to be bound or by “their
Agents thereunto lawfully authorized.” An Act for Prevention of Frauds &
Perjuryes, 29 Car. II c. 3 (Eng.). 6 Accordingly, courts routinely applied the princi-
5
Although not strictly required by the common law, most deeds were signed. As Blackstone
explained, “it is requisite that the party, whose deed it is, should seal, and in most cases I apprehend
should sign it also.” 2 William Blackstone, Commentaries *305; see also 3 William Holdsworth, A
History of English Law 231 (1923) (“The other ceremonies attending the execution of a deed in modern
times are sealing, the delivery, and the attestation of witnesses. Signature, though usual, is not
necessary for validity, unless required by statute.”).
6
At the time of the Constitution’s ratification, several states had adopted statutes of frauds that
included this provision essentially verbatim. See, e.g., An Act for Prevention of Frauds and Perjuries,
1771 Conn. Pub. Acts LXXV; An Act to Prevent Fraud and Perjury, Mass. Gen. Laws ch. 16, § 1(1788); An Act to Prevent Frauds and Perjuries, Va., ch. 101 (1785).
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ple of signatures in matters governed by the Statute. For instance, in Merritt v.
Clason, 12 Johns. 102 (N.Y. Sup. Ct. 1815), the New York Supreme Court of
Judicature held that a contract satisfied the Statute of Frauds where a broker,
acting as agent for both plaintiff and defendant, wrote in the plaintiff’s memoran-
dum-book, “‘February 18th, bought of Daniel & Isaac Merritt, (the plaintiffs), by
Isaac Wright & Son, 10,000 bushels of good merchantable rye, at one dollar per
bushel, deliverable in the last ten or twelve days of April next, along side any
vessel or wharf the purchaser may direct, for Isaac Clason of New-York, payable
on delivery.’” Id. at 102. The broker informed the defendant of what was written
and the defendant repeatedly accepted delivery of the goods. The court held that
the memorandum “was signed according to the statute.” Id. at 106. The court
continued:
It is not disputed, that the authorization of the agent, for such pur-
pose, need not be in writing. In the body of this memorandum the
name of Isaac Clason, the defendant, is written by his agent, whom
he had expressly authorized to make this contract. The memoran-
dum, therefore, is equally binding on the defendant as if he had writ-
ten it with his own hand and if he had used his own hand, instead of
the hand of his agent, the law is well settled that it is immaterial, in
such a case, whether the name is written at the top, or in the body, or
at the bottom of the memorandum. It is equally a signing within the
statute.
Id. at 106–07. Other cases reached similar results. See, e.g., Irvin v. Thompson,
7 Ky. 295, 296 (1816) (holding that an agent validly signed a contract for the sale
of real estate in his principal’s name pursuant to an oral grant of authority and that
the mode of appointing agents was “left . . . as it was at common law,” which did
not require such authority to be in writing, or it would “prevent every person who
is unable to write from making a binding contract”); cf. Shaw v. Nudd, 25 Mass. 9,
12 (1829) (similar).
As these cases illustrate, “[t]he common law . . . [did] not require that an au-
thority to an agent to sign an unsealed paper, or a written contract, should also be
by a writing. Thus, for example, an agent may, by a verbal authority, or by a mere
implied authority, sign or indorse promissory notes for another.” Joseph Story,
Commentaries on the Law of Agency § 50 (1839) (“Story on Agency”); see also
Miller v. Moore, 17 F. Cas. 341, 341 (C.C.D.C. 1807) (No. 9,584) (“But THE
COURT permitted parol (viva voce) testimony to be offered, to show that
Wellford was an agent for Alexander, and that he had been accustomed to indorse
the name of Alexander on notes, and that Alexander had sanctioned such indorse-
ments.”); Weightman v. Caldwell, 17 U.S. 85, 96 n. (1819) (“The agent who is
authorized to sign, need not be constituted by writing.”); Bank of Washington v.
Peirson, 2 F. Cas. 749, 749 (C.C.D.C. 1826) (No. 953) (holding that it is “not
necessary that the power to indorse should be under seal”). “[E]ven where a
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statute, such as the statute of frauds, require[d] an instrument to be in writing, in
order to bind the party,” this rule allowed a party “without writing, [to] authorize
an agent to sign it in his behalf, unless the statute positively require[d] that the
authority also should be in writing.” Story on Agency § 50; see also 2 James Kent,
Commentaries on American Law *511 n.a (“The agent under the statute must be a
third person, and not one of the principals, and his authority may be by parol.”).
Courts applied a different rule, however, with respect to deeds and other docu-
ments under seal. As Justice Story explained, “whenever any act of agency is
required to be done in the name of the principal under seal, the authority to do the
act must generally be conferred by an instrument under seal. Thus, for example, if
the principal should authorize an agent to make a deed in his name, he must confer
the authority on the agent by a deed.” Story on Agency § 49; see also Delius v.
Cawthorn, 13 N.C. 90, 97 (1829) (“But Johnson, the principal, was not bound by
the specialty, because the authority of the agent was not created by deed, and
power to bind the principal by an instrument under deed, can only be delegated by
deed.”); Blood v. Goodrich, 9 Wend. 68, 75 (N.Y. Sup. Ct. 1832) (“The first
question is whether the agreement of December 11, 1828, is binding upon all the
defendants? This contract is the basis of any liability which may rest upon any or
all of the defendants. It was signed by Kingsbury, ‘for self, Goodrich and Champi-
on.’ The proof of the execution by Kingsbury proves nothing against the other
defendants. It shows the instrument to be the deed of Kingsbury; but to make it the
deed of Goodrich and Champion, something else must be proved; it must be
shown that Kingsbury had authority to act for them; and as he professes to act by
deed, an authority from them under their seals is indispensable.”); M’Murtry v.
Frank, 20 Ky. 39 (1826) (explaining that authority under seal is required to
authorize an agent to sign a sealed document). This rule was apparently based on
the principle that “the power to execute an instrument under seal should be
evidenced by an instrument of equal solemnity.” Story on Agency § 49. Although
these cases required additional formality in this context, they recognized that so
long as he did so pursuant to a sealed instrument, a principal could sign and
execute a document under seal by authorizing or directing an agent to affix the
principal’s signature and seal to it, and that the principal would be bound by a
document signed and executed in this manner.
Even where the law required authorization under seal, however, the principle of
signatures permitted one validly to sign or seal a document, in the absence of such
formal authorization, by directing another to affix one’s name or seal to the
document in one’s presence. See Ball v. Dunsterville, 100 Eng. Rep. 1038, 1039,
4 Term Rep. 313, 314 (K.B. 1791) (“The Court were clearly of opinion that there
was no ground for the objection; that no particular mode of delivery was neces-
sary, for that it was sufficient if the party, executing a deed, treated it as his own.
And they relied principally on this deed having been executed by one defendant
for himself and the other in the presence of that other.”); Simonds v. Ludlow,
2 Cai. Cas. 1 (N.Y. Sup. Ct. 1805) (similar, citing Lord Lovelace’s Case and Ball);
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Opinions of the Office of Legal Counsel in Volume 29
Hanford v. McNair, 9 Wend. 54, 56 (N.Y. Sup. Ct. 1832) (“An agent cannot bind
his principal by deed, unless he has authority by deed so to do. The only exception
to the rule that the authority to execute a deed must be by deed, is where the agent
or attorney affixes the seal of the principal in his presence and by his direction.”);
Rex v. Longnor, 110 Eng. Rep. 599, 600, 4 B. & A. 647, 649 (K.B. 1833) (Little-
dale, J.) (upholding the validity of a deed where two principals “met for the
purpose of executing it, [and] their names, by their authority, were written
opposite to two of the seals”); cf. Mackay v. Bloodgood, 9 Johns. 285 (N.Y. Sup.
Ct. 1812) (“In the present case, one of the defendants sealed the bond, with one
seal, for himself and his partner, with the consent of his partner, and after the
partner had seen and approved of the bond, and while he was about the store, at
the time of the execution. This evidence was sufficient to carry the cause to the
jury, and to justify them in finding it the deed of both.”).
Courts based this rule on the general principle that “what a person does in the
presence of another, in his name and by his direction, is the act of the latter, as if
done exclusively in his own person.” Kime v. Brooks, 31 N.C. 218, 220 (1848);
see also Kidder v. Prescott, 24 N.H. 263 (1851) (“an act done by one in the
presence and under the control of another, for that other, is regarded not as the
exercise of a delegated authority, but as the personal act of the party in whose
behalf it was performed”); Gardner v. Gardner, 59 Mass. 483, 484 (1850) (“The
execution of the deed is objected to, on the ground, that when a deed is executed
by an agent or attorney, the authority to do so must be an authority of as high a
nature, derived from an instrument under the seal of the grantor. This is a good
rule of law, but it does not apply to the present case. The name being written by
another hand, in the presence of the grantor, and at her request, is her act.”). As
Justice Story explained,
[A]lthough a person cannot ordinarily sign a deed for and as the
agent of another, without an authority given to him under seal; yet
this is true only in the absence of the principal; for if the principal is
present, and verbally or impliedly authorizes the agent to fix his
name to the deed, it becomes the deed of the principal; and it is
deemed, to all intents and purposes, as binding upon him, as if he
had personally sealed and executed it. The distinction may seem nice
and refined; but it proceeds upon the ground, that where the principal
is present, the act of signing and sealing is to be deemed his personal
act, as much as if he held the pen, and another person guided his
hand and pressed it on the seal.
Story on Agency § 51.
A similar principle was expressly incorporated in the provision of the Statute of
Frauds governing wills, which required that “all Devises and Bequests of any
Lands . . . shall be in Writeing and signed by the partie soe deviseing the same or
by some other person in his presence and by his expresse directions and shall be
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Whether President May Sign Bill by Directing That His Signature Be Affixed to It
attested and subscribed in the presence of the said Devisor by three or fower [4]
credible Witnesses.” 29 Car. II c. 3; see also Starr v. Starr, 2 Root 303 (Conn.
Super. 1795) (discussing the statutory requirements); Ford v. Ford, 26 Tenn. 92(1846) (same). Consistent with the statutory language and the principle of
signatures, courts upheld wills signed in the testator’s name and presence by
another. See, e.g., Cochran’s Will, 6 Ky. 491, 499 (1814) (“The will was written
by David Cochran, in the absence of all other persons except the testator. The
name of the testator was signed by D. Cochran—he proves that it was done under
the direction of the testator. The subscribing witnesses all prove the acknowledg-
ment of the testator that this instrument was his will, and in his presence attested
the same. This is a substantial compliance with the law.”); Pate’s Adm’r v. Joe, 26
Ky. 113, 113 (1829) (“That testator’s name was signed by his directions, and that
witnesses subscribed their names in his presence, may be established by circum-
stantial evidence.”). In addition, courts held that attesting witnesses could satisfy
the statutory requirement that they “subscribe their names” to the will by directing
that their signature be affixed to the will by another in their presence on the ground
that, consistent with the principle of signatures, such a signing “should . . . , for
every purpose contemplated by the law, be regarded as their own act, as much so
as if it had been a deed to which they were subscribed, or as if their hands had
been held and guided by another.” Upchurch v. Upchurch, 55 Ky. 102, 113
(1855).
Consistent with its apparent origins in Lord Lovelace’s Case, the common law
principle of signatures also applied in the context of public law. Thus, for exam-
ple, in reliance on the well-established rule that “the name of a party affixed to an
instrument by his direction, and in his presence, is affixed by himself; whether he
in fact puts his hand upon the pen or not,” it was held in Hanson v. Rowe, 26 N.H.
327 (1853), that where “[t]he sign of the magistrate was placed upon the writ, by a
mechanical act performed in his presence and under his immediate direction and
inspection,” it was “to every legal intent as much his sign manual as if his own
hand had guided the pen which traced it.” Id. at 329; see also Andover v. Grafton,
7 N.H. 298, 305 (1834) (“Had the selectman who signed the note, placed with his
own name that of the other selectman who authorized him to settle the account and
give a note, perhaps the evidence respecting the authority might have been
sufficient to have rendered it valid, as it would then have purported to carry on its
face evidence that it was the act of the town, by a majority of the selectmen; but
even in that case it would deserve consideration, whether authority to do this could
be delegated, and whether it could be legally done unless the other selectman was
present, and assenting at the time of the execution of the paper.”). And in a
somewhat later case, in a context very similar to that which we consider here, the
Supreme Court of the State of Missouri held that the mayor of Kansas City could
approve an ordinance passed by the city counsel by directing his secretary to affix
the mayor’s signature to the ordinance in his presence. Porter v. Boyd Paving &
Constr. Co., 214 Mo. 1 (1908). The city’s charter paralleled Article I, Section 7,
providing that ordinances passed by the city counsel “shall be ‘presented to the
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mayor. If the mayor approve any ordinance he shall sign it; if not he shall return it
to the city clerk with his objection, and the city clerk shall at the next session of
the house in which it originated return it to such house.’” Id. at 10. The court relied
on the principle of signatures, explaining that “[u]nquestionably it has been
generally held by the courts of England and of this country that when a document
is required by the common law or by statute to be ‘signed’ by any person, a
signature of his name, in his own proper or personal handwriting, is not required.”
Id. at 11. On this basis, it concluded that the mayor could satisfy the requirements
of the city’s charter by directing that his signature be affixed to an ordinance by
another.
Indeed, similar principles may have governed the manner in which the King of
England approved bills passed by Parliament. As Blackstone explains, the King
could assent to a bill either by signing it with his own hand or by directing the
clerk of Parliament to manifest the King’s assent in the presence of the King and
Parliament. See 1 William Blackstone, Commentaries *184–85. 7
Thus, it was well settled at common law that one could sign a legally binding
document without personally affixing his signature to it. Rather, under the
principle of signatures, one could sign a document by authorizing or directing
another to place one’s signature on it.
B.
Opinions of the Attorney General and of this Office and its predecessors at the
Department of Justice, have also recognized and applied the principle of signatures
in a variety of contexts. For example, in 1824 Attorney General Wirt addressed the
question “[w]hether, in cases in which the law requires that public documents shall
be signed by the Secretary of the Treasury, that officer having been rendered by
sickness unable to write his name in the usual manner, may impress his name by
the use of a stamp or copperplate, instead of pen and ink; and whether instruments
so signed are valid in law.” Signature of the Secretary of the Treasury, 1 Op. Att’y
Gen. 670, 670 (1824). “[P]roceed[ing] upon the postulate that the Secretary has
not been so far disabled by disease but that he is capable of seeing what is done, so
7
Blackstone describes in detail the two ways in which the King could assent to a bill passed by
Parliament:
1. In person; when the king comes to the house of peers, in his crown and royal robes,
and sending for the commons to the bar, the titles of all the bills that have passed both
houses are read; and the king’s answer is declared by the clerk of the parliament in
Norman-French. . . . 2. By the statute 33 Hen. VIII. c. 21, the king may give his assent
by letters patent under his great seal, signed with his hand, and notified in his absence
to both houses assembled together in the high house. And, when the bill has received
the royal assent in either of these ways, it is then, and not before, a statute or act of
parliament.
1 William Blackstone, Commentaries *184–85.
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Whether President May Sign Bill by Directing That His Signature Be Affixed to It
that one paper cannot be passed upon him for another,” id. at 674, Attorney
General Wirt concluded:
[I]f [the Secretary] keep the stamp or copperplate in his own posses-
sion, and either apply it himself, or cause it to be applied by another
in his presence, and by his authority, I am of opinion that the instru-
ment is as valid, in strict law, as if he had written his name with a
pen. It might otherwise happen that the public might lose the services
of an able officer, from a mere temporary disability in his right hand.
Id. at 673–74. Attorney General Wirt observed, “[w]ith regard to the signing being
done propriȃ manu of the person to be affected by it, it has been always decided
that this is unnecessary—not only in wills, where the law expressly tolerates the
agency of another, but in all other instruments where the law is silent—except as it
speaks in the maxim that qui facit, &c.” Id. at 672. He further explained, “[t]he
adoption and acknowledgment of the signature, though written by another, makes
it a man’s own. As to usage, and even official usage, I believe that by far the
greater part of our judicial records are not signed by the clerk of the court himself,
but are signed by deputies, who use the name of the clerk on a mere general verbal
authority.” Id. The Attorney General underscored the flexibility accorded to the
Secretary of the Treasury to determine the manner in which he signs documents:
The law requires . . . that the warrants shall be signed by him; but as
to the method of signing, that is left entirely to [the Secretary]. He
may write his name in full, or he may write his initials; or he may
print his initials with a pen: that pen may be made of a goose quill, or
of metal; and I see no legal objection to its being made in the form of
a stamp or copperplate. It is still his act; it flows from his assent, and
is the evidence of that assent. It is merely directory to the officers
who are to act after him—to the Comptroller, who is to countersign;
the Register, who is to record; and the Treasurer, who is to pay. . . . It
is true, that the stamp may be forged; but so also may the autograph
of the Secretary. There would, perhaps, be more difficulty in the lat-
ter case than in the former; and the superior facility of forging a
stamp, or a copperplate, may be a very good reason why the legisla-
ture should, by a positive law, prohibit the use of it, and define the
manner in which the signing shall be done. They have not yet de-
fined it; and the word signing does not, as we have seen, necessarily
imply, ex vi termini, the use of pen and ink, held and guided by the
hand of the Secretary himself: it does not imply it in legal accepta-
tion, at least.
Id. at 673.
Subsequent opinions reaffirmed Attorney General Wirt’s conclusion. These
opinions further recognized that an officer need not be present to satisfy a statutory
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Opinions of the Office of Legal Counsel in Volume 29
signing requirement by directing that his signature be affixed by another so long as
the officer ensures—by specific authorization, instruction, or otherwise—that the
signature reflects his own conscious and deliberate act. Thus, in 1917, Acting
Attorney General Davis relied largely on Attorney General Wirt’s analysis in
concluding that the Farm Loan Commissioner could satisfy a statutory require-
ment that every farm loan bond contain a certificate signed by the Farm Loan
Commissioner by directing another to affix “an engraved facsimile signature of the
Farm Loan Commissioner” to the certificate. Signing Certificate Attached to Farm
Loan Bonds, 31 Op. Att’y Gen. 146, 146 (1917). Davis described the reasoning in
Wirt’s opinion as “entirely sound” and explained that this reasoning “renders it
unnecessary to construe the present act as requiring the certificate to be signed by
the Farm Loan Commissioner with his own hand.” Id. at 147. Instead, Davis
observed, “[t]he requirement of the act is met if the signature of the Farm Loan
Commissioner be written, stamped or engraved on the bond under circumstances
which make it his own conscious and deliberate act.” Id. He concluded:
If he were accustomed to sign his name by a stamp rather than with
pen and ink there can be no question that he might authorize this
stamp to be affixed in his presence by another person in his behalf.
Upon the same principle of physical agency he may authorize the Di-
rector of the Bureau of Engraving and Printing from time to time to
affix his signature by engraving to certificates upon bonds identified
by number or other description, so that the act of the director would
be in effect the act of the commissioner himself. It is enough that the
signature shall be affixed by direction of the Farm Loan Commis-
sioner; that he shall have adopted it as his own; and that he shall
have satisfied himself before the bonds have finally issued that the
certificate so signed is true in point of fact.
Id. at 147–48.
Attorney General Gregory reached a similar conclusion with respect to statuto-
ry and regulatory requirements that certain orders and vouchers be “approved by
the Department [of the Navy] or by the Chief of the Bureau of Navigation.”
Affixing Facsimile Signature to Orders, Vouchers, Etc., 31 Op. Att’y Gen. 349,
350 (1918). 8 Relying again on Attorney General Wirt’s opinion, Gregory conclud-
ed that “the affixing of this facsimile signature properly initialed by officers duly
authorized thereto, under the direction and control of the Chief of the Bureau of
Navigation, is a sufficient approval by the Chief of the Bureau of Navigation of
8
The statute in question did not specifically require the signing of orders and vouchers. Affixing
Facsimile Signature to Orders, 31 Op. Att’y Gen. at 350 (“The provisions of the law and the
regulations respecting this matter require only that the orders and vouchers be approved by the
Department or by the Chief of the Bureau of Navigation.”).
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Whether President May Sign Bill by Directing That His Signature Be Affixed to It
the orders, vouchers, etc., which are the subject of this opinion.” Id. at 351.
Gregory concluded:
I do not mean by this, of course, that the Chief of the Bureau of Nav-
igation can transfer to others any duty which the law imposes upon
him in connection with the approval of orders, vouchers, etc. What I
do mean is, that the Chief of the Bureau having in some appropriate
way passed judgment in such cases, the manual act of affixing his
signature in evidence of that fact may be done by others thereunto
duly authorized by him.
Id.
Consistent with the views of these Attorneys General, the courts have held that
these sorts of facsimile signatures of public officers are in law “the true and
genuine signatures of those officers.” Hill v. United States, 288 F. 192, 193 (7th
Cir. 1923) (holding in criminal prosecution for circulating false bank notes that
facsimile signatures of governor and cashier of the Federal Reserve Bank of St.
Louis were valid signatures).
More relevant still, for nearly 100 years the Department of Justice has applied
the principle of signatures to the President’s signing of various commissions.
Although commissions, unlike bills, are not subject to a constitutional signing
requirement, the Constitution does provide that the President “shall Commission
all the Officers of the United States,” U.S. Const. art. II, § 3, and various statutes
dating back to as early as 1789 require that commissions for certain officers be
signed by the President. For example, an act of September 15, 1789, directed the
Secretary of State to
affix the said seal to all civil commissions, to officers of the United
States, to be appointed by the President by and with the advice and
consent of the Senate, or by the President alone. Provided, That the
said seal shall not be affixed to any commission, before the same
shall have been signed by the President of the United States.
Act of Sept. 15, 1789, ch. 14, § 4, 1 Stat. 68, 68–69. This and similar statutes have
been in force since that time. Since at least the early twentieth century, the
Department of Justice has interpreted such provisions not to require the President
personally to affix his signature to the covered commissions.
The Department appears first to have addressed the proper construction of such
statutes when President Woodrow Wilson became ill and unable “to sign the
commissions of a large number of diplomatic and consular officers of the United
States, who had been appointed by him and to whose appointments the Senate had
given consent.” Memorandum for the Attorney General, from Alfred A. Wheat,
Office of the Solicitor General, Re: Signature of the President Upon Commissions
of Presidential Postmasters at 5 (Dec. 9, 1926) (“Wheat Memorandum”) (describ-
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Opinions of the Office of Legal Counsel in Volume 29
ing this incident). The Secretary of State asked the Attorney General “whether
‘you consider that I would be justified in signing in the name of the President,
commissions for the officers in question and in affixing the seal of the United
States to such commissions.’” Id. Although “hesitant about expressing the official
opinion of the Department,” Assistant Attorney General Brown responded, in
informal advice to the Secretary of State, that “[i]t would seem to be sufficient that
a commission should bear a declaration that it is an act of the President and that it
is signed by the Secretary of State in his name and at his direction.” Id. 9
The Department reached a more definitive conclusion in 1926 with respect to a
statutory requirement that the President sign postal commissions. That statute
required that
the commissions of all officers under the direction and control of the
Postmaster General and the Secretary of Commerce and Labor shall
be made out and recorded in the Post-Office Department and the De-
partment of Commerce and Labor, respectively, and the Department
seal affixed thereto, any laws to the contrary notwithstanding: Pro-
vided, that the said seal shall not be affixed to any such commission
before the same shall have been signed by the President of the Unit-
ed States.
Pub. L. No. 58-155, ch. 1422, 33 Stat. 990, 990–91 (1905). The Postmaster
General asked “whether this proviso requires the autographed signature of the
President or whether the printing of his facsimile signature is sufficient to satisfy
the law.” Wheat Memorandum at 1. Looking to earlier opinions of the Depart-
ment, especially that of Attorney General Wirt, as well as case law applying the
principle of signatures, Alfred Wheat, of the Office of the Solicitor General,
reasoned that “when the President’s name is affixed to a commission in such
manner as he shall adopt and sanction it has been signed by him.” Id. at 3. He
concluded, therefore, “[u]pon principle and authority,” that “the facsimile
signature of the President affixed to a commission by direction of the President
and adopted by him as his signature is a compliance with the statute.” Id. at 8.
Wheat recognized, however, “that the President may not delegate the actual
appointment to another official” and that “even after the Senate has advised and
consented to an appointment the President may decide not to make it.” Id. at 9.
Accordingly, he indicated that his conclusion was subject to the understanding
“that before any commission is recorded, sealed or issued the Postmaster General
will receive the direction of the President that the commission issue to a named
9
Although some historians have raised questions regarding the actual source of decisions in the
White House during President Wilson’s illness, it appears that the appointees who were the subject of
Assistant Attorney General Brown’s advice had been properly appointed by President Wilson and
confirmed by the Senate before he fell ill. See Wheat Memorandum at 5.
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Whether President May Sign Bill by Directing That His Signature Be Affixed to It
person whom he has appointed to a named office.” Id. “Whatever may be the
mechanics of it,” Wheat continued, “the record should show that the person
appointed is the choice of the President and the ‘commissioning’ is the President’s
Act.” Id. Wheat’s memorandum and conclusions were adopted by the Attorney
General and acted upon by the Postmaster.
As Acting Solicitor General, Wheat reached the same conclusion in a 1929
memorandum to the Attorney General addressing a statute that required the
President to sign the commissions of certain notaries public. Memorandum for the
Attorney General, from Alfred A. Wheat, Acting Solicitor General, Re: Signature
of the President on Pardon Warrants and Signatures of the President and the
Attorney General on Commissions of Notaries Public in the District of Columbia
(Mar. 27, 1929) (“Wheat Notaries Memorandum”). The statute in question stated:
That hereafter the commissions of all judicial officers . . . shall be
made out and recorded in the Department of Justice, and shall be un-
der the seal of said Department and countersigned by the Attorney
General . . . : Provided, That the said seal shall not be affixed to any
such commission before the same shall have been signed by the
President of the United States.
Act of Aug. 8, 1888, ch. 786, 25 Stat. 387, 387. Noting his previous conclusion
“that upon principle and authority the facsimile signature of the President affixed
to a commission by direction of the President and adopted by him as his signature
was a compliance with the [postal] statute,” Wheat explained that “[t]he same
principle applies to the question now presented.” Wheat Notaries Memorandum at
1–2. Indicating that he had “no doubt whatever that . . . notarial commissions may
be issued without autograph signature of the President,” id. at 6, Wheat concluded
that the President “may adopt a facsimile and direct that commissions bearing it
shall issue to those whom he has appointed,” id. at 3. See also id. at 4 (noting that
“the President may direct that his facsimile signature be affixed to documents
issued by his direction”).
In 1954 this Office applied the same reasoning when asked “whether there is
any way to obviate the necessity for Presidential signature of each and every
commission evidencing the appointment of a United States Marshall.” Memoran-
dum for the Attorney General, from J. Lee Rankin, Assistant Attorney General,
Office of Legal Counsel, Re: Presidential Signature of Commissions of United
States Marshals at 1 (Mar. 17, 1954) (“Rankin Memorandum”). Such commis-
sions were subject to the same statutory requirement that Acting Solicitor General
Wheat had construed in 1929. Id. at 2. Stating that “[i]t is clear, of course, that the
President cannot delegate his appointive duty,” Assistant Attorney General Rankin
observed that “[t]here is involved in the issuance of a commission a form of
discretion which is inextricably interwoven with the act of making the appoint-
ment.” Id. Furthermore, “[b]ecause it is apparently the intention of the statutes that
the issuance of such commissions shall be the act of the President,” Rankin
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Opinions of the Office of Legal Counsel in Volume 29
questioned “whether this duty is one which can properly be delegated by the
President.” Id. Relying on Wheat’s “well-reasoned” previous opinions, Rankin
concluded that he could “see no reason, however, why the signature of the
President could not be placed on such commissions by mechanical means.” Id.
Rankin recommended as a precaution, however, “that the President sign a
memorandum for the files of the White House directing that the facsimile signa-
ture be placed on commissions prepared for persons identified by name in the
memorandum[, which] would enable the President to dispose of such commissions
in blocks or groups merely by signing his name once for each group.” Id. at 3.
This Office has invoked the principle of signatures in other contexts involving
the President, as well. For example, in 1969 we advised that the Secretary of State
could sign extradition warrants for the President pursuant to “a letter from the
President to the Secretary requesting him to affix a facsimile of the President’s
signature, or to sign in his behalf, or both.” Letter for K.E. Malmborg, Assistant
Legal Adviser for Administration and Consular Affairs, Department of State, from
Thomas E. Kauper, Acting Assistant Attorney General, Office of Legal Counsel
at 2 (Dec. 12, 1969) (“Kauper Letter”). Noting that “some method of Presidential
exercise of the decision making function is retained, such as provision for
notification of and approval by the President prior to the signing,” we observed
that “[t]his form of delegation has been used in the past with respect to delegations
of authority to sign commissions of military officers, postmasters and United
States marshals.” Id.1 0 More generally, we have concluded that “[w]here the
President’s signature is to appear on a document, the signature generally may be
affixed by any means, such as by someone else authorized to sign the President’s
name or by the use of a mechanical signature device.” Memorandum from William
H. Rehnquist, Assistant Attorney General, Office of Legal Counsel, Re: Delega-
tion of the President’s Authority to Physically Sign Documents at 7 (1969)
(“Rehnquist Memorandum”) (accompanying Letter for John D. Ehrlichman,
Counsel to the President, from William H. Rehnquist, Assistant Attorney General,
Office of Legal Counsel (Mar. 20, 1969) (“Rehnquist Letter”)). Accordingly, we
have explained that, at least as a general matter,
The question of whether the President should manually sign his
name to a document is primarily one of propriety rather than of law,
and it is within the President’s discretion to determine which docu-
ments he wishes to personally sign and those with respect to which
10
There was apparently no statutory requirement that the President sign the warrants. Accordingly,
we could see “no legal impediment to the President’s delegating to the Secretary [of State] either (1)
only the authority to physically sign the warrants, or (2) the authority to issue the warrant as well as to
sign it.” Kauper Letter at 1. We indicated that if “the decision to issue the warrant as well as the signing
function is to be delegated to the Secretary,” a formal delegation pursuant to 3 U.S.C. § 301 (rather
than the procedure discussed in the text) would be proper and that “the form of the warrant would have
to be revised so as to show that it is issued by the Secretary rather than by the President.” Id. at 2–3.
114
Whether President May Sign Bill by Directing That His Signature Be Affixed to It
he wishes to delegate the signing to someone else in his behalf or
have his own signature written or affixed by means other than his
own hand.
Rehnquist Memorandum at 9. Thus, the Department of Justice has long recognized
that under the principle of signatures, an executive officer, including the President,
may sign a document, within the meaning of various statutory signing require-
ments, by directing that his signature be affixed to it by another.
C.
Our understanding of the common law meaning of “sign” at the time the Con-
stitution was drafted and ratified and during the early years of the Republic, as
well as the opinions of Attorneys General and the Department of Justice applying
the principle of signatures, lead us to conclude that the President may sign a bill
within the meaning of Article I, Section 7 without personally affixing his signature
to it with his own hand. Rather, consistent with the principle of signatures, the
President may sign by directing a subordinate to affix the President’s signature to a
bill that the President has approved and decided to sign.
We do not suggest that the President may delegate the decision whether to
“approve[]” and “sign” a bill. U.S. Const. art. I, § 7, cl. 2. It has long been the
view of the Executive Branch that the President may not delegate this decision. As
Attorney General Cushing explained 150 years ago, “[The President] approves or
disapproves of bills which have passed both Houses of Congress: that is a personal
act of the President, like the vote of a Senator or Representative in Congress, not
capable of performance by a Head of Department or any other person.” Relation of
the President to the Executive Departments, 7 Op. Att’y Gen. 453, 465 (1855); see
also Presidential Succession and Delegation in Case of Disability, 5 Op. O.L.C.
91, 94 (1981) (listing “[t]he power to approve or return legislation” among the
“nondelegable functions of the President”); Memorandum for the Attorney
General, from Nicholas deB. Katzenbach, Assistant Attorney General, Office of
Legal Counsel, Re: Delegation of Presidential Powers to the Vice President at 2
(June 22, 1961) (same); cf. Eber Bros. Wine & Liquor Corp. v. United States, 337
F.2d 624, 628 (Ct. Cl.) (“[The President] alone can approve or veto legislation;
that authority cannot be delegated. Whatever the help a President may have, the
ultimate decision must be his.”), cert. denied, 380 U.S. 950 (1964). And with
respect to signing bills, this Office has likewise stated that “[t]here is no doubt that
the responsibility is meant to be that of the President alone. He alone for the
executive branch participates in the legislative process.” Wilkey Memorandum
at 2. Thus, although the President generally has considerable discretion to delegate
power conferred on him by the Constitution, see Myers v. United States, 272 U.S.
52, 117 (1926), or statute, see 3 U.S.C. §§ 301–303 (2000), we do not question the
substantial authority supporting the view that the President must personally decide
whether to approve and sign bills.
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Opinions of the Office of Legal Counsel in Volume 29
Yet it does not follow from such a requirement that when the President has
approved and decided to sign a bill, he cannot do so by directing a subordinate to
carry out the ministerial act of affixing the President’s signature to it. As our
review of the common law and Department of Justice opinions shows, the
principle of signatures supports this type of signing. It is true that cases applying
the principle of signatures in the context of agency law ordinarily did not distin-
guish a delegation of authority to make the decision whether to sign from an
instruction to perform the ministerial act of affixing the principal’s signature to a
document once the principal has made that decision. Indeed, because it was
generally so easy for a principal to delegate broad authority, there was little reason
for courts to address this distinction. Given that the law of signatures permitted a
principal to authorize a person both to decide whether to sign a document and to
perform the ministerial act of affixing the principal’s signature to the document on
the principal’s behalf, however, we believe it follows a fortiori that the same legal
principle would also permit a principal to exercise the lesser power of instructing a
person to carry out the ministerial act of affixing the principal’s signature to a
document the principal has decided to sign. As Justice Story explained:
By the general theory of our municipal jurisprudence . . . every per-
son is invested with a general authority to dispose of his own proper-
ty, to enter into contracts and engagements, and to perform acts,
which respect his personal rights, interests, duties, and obligations,
except in cases where some positive or known disability is imposed
upon him by the laws of the country, in which he resides, and to
which he owes allegiance. Every person not under such a disability,
is treated as being sui juris, and capable, not only of acting personal-
ly in all such matters by his own proper act, but of accomplishing the
same object through the instrumentality of others, to whom he may
choose to delegate, either generally, or specially, his own authority
for such a purpose. In the expanded intercourse of modern society it
is easy to perceive, that the exigencies of trade and commerce, the
urgent pressure of professional, official, and other pursuits, the tem-
porary existence of personal illness or infirmity, the necessity of
transacting business at the same time in various and remote places,
and the importance of securing accuracy, skill, ability, and speed in
the accomplishment of the great concerns of human life, must re-
quire the aid and assistance and labors of many persons, in addition
to the immediate superintendence of him, whose rights and interests
are to be directly affected by the results. Hence the general maxim of
our laws, subject only to a few exceptions above hinted at, is, that
whatever a man sui juris may do of himself, he may do by another;
and as a correlative of the maxim, that what is done by another is to
be deemed done by the party himself.
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Whether President May Sign Bill by Directing That His Signature Be Affixed to It
Story on Agency § 2.
As Justice Story’s explanation makes clear, the overriding purpose of the law of
agency was to facilitate executing the intent of individuals. For this reason, there is
no doubt that if the law ordinarily allows a principal to delegate broad authority to
decide which documents to sign, it would also allow him to take the lesser step of
instructing another person to execute the ministerial task of placing the principal’s
signature on a document the principal has determined to sign. Indeed, as is evident
from the opinions discussed above, the Department of Justice has repeatedly
“distinguishe[d] between the physical signing of a document and the decision-
making function involved with respect to the document,” Memorandum for
William E. Casselman II, Counsel to the President, from Antonin Scalia, Assistant
Attorney General, Office of Legal Counsel, Re: Types of Documents Which Must
Be Personally Signed by the President at 1 (Mar. 5, 1975) (“Scalia Memoran-
dum”), and has concluded that an executive officer may direct a subordinate to
perform the former while retaining the latter, see, e.g., Affixing Facsimile Signa-
tures to Orders, 31 Op. Att’y Gen. at 351; Wheat Memorandum at 9; Rankin
Memorandum at 2–3. And even if the broader decision-making authority cannot
be delegated, we believe the lesser power to direct another to perform a ministerial
act remains.1 1 Moreover, as the authorities discussed above make clear, when the
President directs a subordinate to affix the President’s signature to a bill the
11
While the principle of signatures generally required the principal’s presence for his signature
validly to be affixed to a document by another person otherwise lacking authority to act on the
principal’s behalf, we do not believe that inability of the President to delegate the decision whether to
approve and sign a bill means that his presence is required when his signature is affixed to a bill he has
approved and decided to sign, so long as the person affixing the President’s signature to the bill has
been properly and specifically authorized to perform that ministerial act. The purpose of the presence
requirement appears to have been to provide a principal with control over acts done in his name in the
absence of some other valid grant of authority that would otherwise constrain his agent. See, e.g., Kime
v. Brooks, 31 N.C. 218, 220 (1848) (“what a person does in the presence of another, in his name and by
his direction, is the act of the latter, as if done exclusively in his own person; but that what is done out
of his presence, though by his direction and in his name, cannot in law be considered an act in propria
persona, but one done by authority”); id. at 221 (agent’s act of signing, sealing, and delivering of deed
was not in principal’s physical presence and could not be said to be the principal’s act “in that he saw
or knew or could know of his own knowledge, that [the agent] was in fact doing what he directed her;
but it rested on his confidence, that she would pursue his directions, and in her testimony that she did
pursue them”). That requirement should not apply, however, when a principal properly and specifically
authorizes a subordinate to affix the principal’s signature to a document. Accordingly, as noted above,
the Department has properly substituted specific authorization for presence in situations where an
executive officer retains the decision-making function associated with a signature requirement but
directs another to perform the manual act of affixing the officer’s signature. See, e.g., Signing
Certificate Attached to Farm Loan Bonds, 31 Op. Att’y Gen. at 147–48; Affixing Facsimile Signatures
to Orders, 31 Op. Att’y Gen. at 351; Wheat Memorandum at 9; Rankin Memorandum at 2–3. It follows
that the President need not be present when his signature is affixed, pursuant to the President’s specific
authorization, to a bill the President has approved and decided to sign. And so long as the authorization
is limited to this ministerial act, no improper delegation of the President’s constitutional responsibilities
has occurred.
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President has approved and decided to sign, it is in legal contemplation the
President who signs the bill, not the subordinate, who merely performs a ministe-
rial act pursuant to the President’s specific instructions.
II.
Precedent and practice under the related provisions of Article I, Section 7 pro-
vide additional support for our conclusion that the President may sign a bill by
directing that his signature be affixed to it by a subordinate. In addition to
directing the President to “sign” a bill he approves, Article I, Section 7 also directs
that bills that pass both Houses of Congress “shall . . . be presented to the Presi-
dent,” and that if the President does not approve a bill “he shall return it, with his
Objections to that House in which it shall have originated.” In other words, the
Constitution requires that the President be presented with bills, and, as a general
matter, that he sign bills he approves and return bills he disapproves.1 2
The presentment and return provisions have not been interpreted to require the
President to receive or return a bill with his own hands. Rather, since at least the
early twentieth century,
enrolled Bills have not been presented to the President in person, ex-
cept in the case of the Bank Holiday Bill of 1933 and Bills passed on
the eve of sine die adjournment of the Congress. The usage has been
for the Committee on Administration of either the House or the Sen-
ate, after the Bill has been signed by the Speaker of the House and
the Presiding Officer of the Senate, to send a clerk to the White
House with the enrolled Bill and deliver it to a legislative clerk in the
records office of the White House, who signs a receipt for it. The
Committee on Administration then reports to the House or Senate
“that this day they presented to the President of the United States, for
his approval, the following Bills.”
For many years this has been understood to constitute presentation to
the President.
Eber Bros., 337 F.2d at 635 (Whitaker, J., concurring); accord id. at 629 (majori-
ty); cf. id. at 631 n.15 (“Delivery to an authorized aide in the President’s immedi-
ate entourage would undoubtedly be equivalent to personal delivery to the
President.”). Thus, as we have previously explained, “[w]hen the President is in
12
In the event that the President neither signs nor returns a bill within ten days of its presentation to
him, Article I, Section 7 further provides that the bill “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.” U.S. Const. art. I, § 7, cl. 2. See generally Wright v. United States, 302 U.S. 583, 590 (1938)
(analyzing this provision); The Pocket Veto Case, 279 U.S. 655 (1929) (same).
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Whether President May Sign Bill by Directing That His Signature Be Affixed to It
the United States, presentation does not require delivery to him personally; rather
it is done by delivery of the bill to one of the legislative clerks on the White House
staff.” Presentation of Enrolled Bills—Absence of the President, 2 Op. O.L.C. 383,
383 (1977). This is not to say that the bill is not presented to the President within
the meaning of the Constitution, but only that the ministerial process of physically
accepting delivery of the bill from Congress may, if the President so directs, be
carried out by a subordinate.
Similarly, when the President disapproves a bill and decides to return it to the
house of Congress in which it originated, the accepted practice has been for the
President to return the bill by way of a messenger. See Wright v. United States,
302 U.S. 583, 590 (1938). Again, it is the President who returns the bill even
though, pursuant to the President’s instructions, someone other than the President
physically delivers it to Congress. The Supreme Court has implicitly approved this
practice. In addressing whether the President could return a bill to a house of
Congress that had gone into a recess for three days but had appointed an agent to
accept bills, the Court explained:
[A] rule of construction or of official action which would require in
every instance the persons who constitute the Houses of Congress to
be in formal session in order to receive bills from the President
would also require the person who is President personally to return
such bills.
Id. at 591–92 (quoting approvingly from Brief for Amicus Curiae Committee on
the Judiciary of the House of Representatives, The Pocket Veto Case, 279 U.S. 655(1929)). Explaining that “[t]he Constitution does not define what shall constitute a
return of a bill or deny the use of appropriate agencies in effecting the return,” id.
at 589, the Court held that a bill could in these circumstances be returned by
delivery to an agent authorized to accept it on behalf of the originating house.
The Court’s apparent rejection of a construction of Article I, Section 7’s return
provision that would require the President physically to carry a bill he disapproves
to Congress, like the settled understanding that bills need not be presented to the
President by physical delivery into the President’s hands, suggests that this
section’s related provision directing that the President sign a bill he approves
should not be interpreted to require the President personally to perform the
ministerial act of affixing his name to a bill he has decided to sign. As we
previously indicated, “[w]e do not believe that the requirement that a President
‘sign’ a bill in order to manifest his approval of it requires that he personally put
pen to paper any more than the requirement that he manifest his disapproval by
‘return[ing] it, with his Objections to that House in which it shall have originated,’
U.S. Const. art I, § 7, cl. 2, requires that he personally deliver the rejected bill to
Congress. We believe, instead, that the word ‘sign’ is expansive enough to include
the meaning of ‘cause the bill to bear the President’s signature.’” Whelan Memo-
randum at 1.
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Indeed, it would create serious anomalies to interpret the signing provision, but
not the return and presentment provisions, to require personal ministerial action by
the President. Under such an interpretation, when the President is unavailable due
to travel or some other reason, Congress could present a bill to him by delivering it
to the White House and the President could disapprove that bill simply by
directing a messenger or aide to return it to Congress. The President could not,
however, approve and sign the bill—simply because he would be unable personal-
ly to perform the ministerial act of affixing his signature to it. This anomalous
interpretation would prevent the President from exercising his constitutional
“duty . . . to examine and act upon every bill passed by Congress.” La Abra Silver
Mining Co. v. United States, 175 U.S. 423, 453 (1899). Yet if the word “sign” is
read, consistent with its traditional common law meaning and Attorney General
and Department of Justice opinions interpreting analogous statutory signing
requirements, to permit the President to direct a subordinate to affix the Presi-
dent’s signature to a bill the President has approved and decided to sign, the
President’s power to approve bills can be preserved in all situations.
Our conclusion also finds support in the latitude traditionally exercised by
Congress and the President in determining how to execute the ministerial duties
associated with the presentment and return requirements. For example, the
Constitution’s Presentment Clause does not specify the manner in which a bill
should be presented to the President. Since 1789, however, Congress has imple-
mented this requirement by directing the engrossing of a bill after it passes one
house, and the enrollment of a bill after it passes both houses. This enrolled bill is
then signed by the presiding officers of both houses and presented to the President.
See 1 Annals of Cong. 57–58 (Aug. 6, 1789); see also J.A.C. Grant, Judicial
Control of the Legislative Process: The Federal Rule, 3 W. Pol. Q. 364, 365–69
(1950) (explaining development of enrollment requirement).1 3 As the Supreme
Court has explained, “the signing by the speaker of the house of representatives,
and by the president of the senate, in open session, of an enrolled bill, is an official
attestation by the two houses . . . to the president” that the bill “has received, in
due form, the sanction of the legislative branch of the government, and that it is
13
The precise procedures required for enrollment have varied slightly over the years. Current law
provides:
Every bill or joint resolution in each House of Congress shall, when such bill or reso-
lution passes either House, be printed, and such printed copy shall be called the en-
grossed bill or resolution as the case may be. Said engrossed bill or resolution shall be
signed by the Clerk of the House or the Secretary of the Senate, and shall be sent to
the other House, and in that form shall be dealt with by that House and its officers,
and, if passed, returned signed by said Clerk or Secretary. When such bill, or joint res-
olution shall have passed both Houses, it shall be printed and shall then be called the
enrolled bill, or joint resolution, as the case may be, and shall be signed by the presid-
ing officers of both Houses and sent to the President of the United States.
1 U.S.C. § 106 (2000).
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Whether President May Sign Bill by Directing That His Signature Be Affixed to It
delivered to him in obedience to the constitutional requirement that all bills which
pass congress shall be presented to him.” Marshall Field & Co. v. Clark, 143 U.S.
649, 672 (1892).
Nevertheless, Congress has reserved for itself the authority to waive or relax
the enrollment requirement. According to 1 U.S.C. § 106, “[d]uring the last six
days of a session such engrossing and enrolling of bills and joint resolutions may
be done otherwise than as above prescribed, upon the order of Congress by
concurrent resolution.” Congress has frequently exercised this authority. For
example, Congress relaxed the requirements of section 106 “with respect to the
printing (on parchment or otherwise) of the enrollment of any bill or joint
resolution making general appropriations or continuing appropriations for the
fiscal year ending September 30, 2000.” Pub. L. No. 106-93, 113 Stat. 1310(1999). Instead, Congress determined that “[t]he enrollment of any such bill or
joint resolution shall be in such form as the Committee on House Administration
of the House of Representatives certifies to be a true enrollment.” Id. Similarly, to
avoid “the great labor of enrolling by hand,” Congress in 1874 considered
suspending outright “the joint rule [then] requiring bills to be enrolled in parch-
ment [to] allow certain House bills . . . to be presented to the President as en-
grossed in the House and amended in the Senate,” before ultimately relaxing the
enrollment rule to require only that “the bills in question should be ‘printed upon
paper, and duly examined and certified by the Joint Committee on Enrolled Bills
provided by the joint rules.’” 4 Hinds’ Precedents § 3442; see also 1 U.S.C. § 106notes (collecting congressional departures from the ordinary enrollment require-
ments); Preparation of Slip Laws from Hand-Enrolled Legislation, 13 Op. O.L.C.
353, 355 (1989) (noting Congress’s “occasional departure from the normal process
of preparing printed enrollments of bills before presenting them to the President”).
Similarly, the President and Congress have exercised flexibility in determining
how best to present bills to the President when he is traveling abroad. Thus,
despite the “familiar practice” of “presenting a bill to the President by sending it to
the White House in his temporary absence,” Wright, 302 U.S. at 590, several
presidents have entered agreements with “the congressional leadership pursuant to
which no enrolled bills will be presented during [the President’s] absence.”
Presentation of Enrolled Bills, 2 Op. O.L.C. at 383. For example, when President
Franklin Roosevelt traveled abroad at the end of a congressional session, he sent a
letter to the Vice President and the Speaker of the House stating, “[a]s I expect to
be away from Washington for some time in the near future, I hope that insofar as
possible the transmission of completed legislation be delayed until my return.” Id.
at 385 (reproducing letter). Furthermore, President Roosevelt wrote, “in other
cases of emergency” the White House is “authorized to forward . . . any and all
enrolled bills or joint resolutions . . . by the quickest means,” although “[t]he
White House Office will not receive bills or resolutions on behalf of the President
but only for the purpose of forwarding them.” Id. As President Roosevelt’s letter
indicates, when Congress delivers a bill to the White House while the President is
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traveling abroad, the practice has been to accept the bill, but only for transmission
to the President, not presentment. Thus, we have previously explained:
In the unlikely event that the President is unable to obtain such a
commitment from Congress, including the contingency of urgent
legislation that cannot await the President’s return, the President
normally withdraws the legislative clerks’ authority to accept en-
rolled bills on his behalf when he travels abroad and so advises the
Congress. The bills are received by the White House staff not for
‘presentation’ to the President but for forwarding or transmission to
the President. Presentation is then effected either when the bills actu-
ally are received by him abroad or upon his return to Washington.
Id. at 384; see also Eber Bros., 337 F.2d at 625 (noting that bills received at the
White House during the President’s absence were stamped with the legend “Held
for presentation to the President upon his return to the United States.”). In short, as
the Court of Claims has explained, “presentation can be made in any agreed
manner or in a form established by one party in which the other acquiesces.” Eber
Bros., 337 F.2d at 629.
The same flexibility is evident in the manner in which the Supreme Court has
permitted Congress to receive bills returned by the President. As noted above, in
Wright, the Court concluded that one house of Congress could appoint an agent to
receive bills returned by the President when that house went into recess for three
days. The Court explained:
To say that the President cannot return a bill when the House in
which it originated is in recess during the session of Congress, and
thus afford an opportunity for the passing of the bill over the Presi-
dent’s objections, is to ignore the plainest practical considerations
and by implying a requirement of an artificial formality to erect a
barrier to the exercise of a constitutional right.
Id. at 590.
Just as the presentment and return requirements have been understood and
applied to give the President and Congress flexibility with respect to ministerial
detail so long as the essential aspects of these requirements are performed by the
appropriate constitutional actors, so also the signature requirement should be
understood to give the President similar latitude to determine how his signature
will be affixed to a bill once he has personally made the constitutionally essential
decision to approve and sign it. The longstanding precedent and practice regarding
the presentment and return provisions thus support our conclusion that the
President may direct a subordinate to affix the President’s signature to a bill the
President has approved and decided to sign.
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Whether President May Sign Bill by Directing That His Signature Be Affixed to It
III.
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 impedi-
ment 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 for the Files, from Ralph W. Tarr, Deputy Assistant
Attorney General, Office of Legal Counsel, Re: Presidential Signing of Bankrupt-
cy 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 significa-
tion 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 person-
ally affix his signature to it. See Tarr Memorandum at 9 (China); see also Memo-
randum for the Files, 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).
Nevertheless, we do not think that the question presented in this memorandum
would have had practical significance at the time the Constitution was drafted and
ratified or at the time the practice regarding the President’s signature of bills was
established. Current technology enables the President, without being physically
presented with the enrolled bill, to be informed of a bill’s precise contents for
consideration and approval (for example by receiving a copy of the bill by e-mail
or fax) more rapidly than he could receive the enrolled bill itself for approval and
signature. This was not the case at the time the Constitution was drafted and
ratified or during the early years of the Republic, however. For this reason, we
believe that the historical practice should be viewed not as rejecting the position
we adopt today, but rather as simply reflecting the practical reality that for much
of our Nation’s history the President was precluded by circumstance and techno-
logical limitations from approving and signing a bill that had not been physically
delivered to him.
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Furthermore, as discussed above, opinions of the Attorney General and the
Department of Justice have recognized and applied the principle of signatures in
many other contexts and are in that respect consistent with our conclusion. And,
despite our Office’s reluctance to extend the principle fully to the constitutional
requirement that the President sign bills, even in this context our opinions have
suggested some degree of flexibility consistent with the principle of signatures.
For example, this Office has relied on the principle of signatures in concluding
that the President may “sign” a bill by affixing his initials, rather than his full
name. See Wilkey Memorandum at 3; see also id. at 9 n.5 (quoting Finnegan, 157
Mass. at 440) (“‘It was and still is very generally held that when a document is
required by the common law or by statute ‘to be signed’ by a person, a signature of
his name in his own proper or personal handwriting is not required.’”)). Similarly,
we have suggested that “[i]f the President’s hands only were to become disabled
so that he could not personally sign his name, obviously some other means for
affixing his signature would have to be used. Otherwise, no legislation could be
approved because of the signing requirement of Article I, section 7 of the Consti-
tution.” Rehnquist Memorandum at 8.
More fundamentally, our opinions suggesting that the President himself must
physically affix his signature to bills appear to be based on the generally accepted
understanding—which we in no way call into question—that the President cannot
delegate the decision to approve and sign a bill.1 4 The method of signing a bill that
we approve here, however, does not entail any delegation of this decision—rather
it simply involves a ministerial act performed by a subordinate at the President’s
specific direction. As discussed above, the Department of Justice has repeatedly
14
To the extent earlier opinions of this Office proceed beyond the principle that the President may
not delegate the decision to approve and sign a bill and conclude that he must personally perform the
ministerial act of physically affixing his signature to the bill, they rely only on cursory recitations of the
constitutional text and inferences from statements in Supreme Court cases addressing other matters.
But as explained above, we do not think the text of Article I, Section 7 bars the President from signing
a bill, consistent with the principle of signatures, by directing a subordinate to affix the President’s
signature to a bill the President has approved and decided to sign. Nor is such a conclusion compelled
by Supreme Court precedent. In Gardner v. Collector, 73 U.S. (6 Wall.) 499 (1867), the Court stated,
in the course of holding that the President need not date a bill he signs, that “[t]he only duty required of
the President by the Constitution in regard to a bill which he approves is, that he shall sign it. Nothing
more. The simple signing his name at the appropriate place is the one act which the Constitution
requires of him as the evidence of his approval, and upon his performance of this act the bill becomes a
law.” Id. at 506. Although we have previously stated that “[t]he Court’s language emphasizes the
personal nature of the duty required of the President, thus precluding considerations of delegation,”
Wilkey Memorandum at 3, we think the Court’s language is better understood simply as restating the
text of Article I, Section 7, and not as addressing the question we consider here. Another Supreme
Court case (which did not involve the President or Article I, Section 7) states that “[i]t may be assumed
that a requirement of the officer’s signature, without more, means that he shall write his name or his
distinctive appellation.” Ohl & Co. v. Smith Iron Works, 288 U.S. 170, 176 (1932). That case, which
held that an official could sign by initialing a document, did not address the question whether an officer
could sign a document by directing that his signature be affixed to it by another.
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Whether President May Sign Bill by Directing That His Signature Be Affixed to It
“distinguishe[d] between the physical signing of a document and the decision-
making function involved with respect to the document.” Scalia Memorandum
at 1; see also, e.g., Affixing Facsimile Signature to Orders, 31 Op. Att’y Gen. at
351; Wheat Memorandum at 9; Rankin Memorandum at 2–3. Indeed, despite
sometimes imprecise usage of the word “delegation,” the Department’s opinions
appear to recognize correctly that so long as the President retains this decision-
making function, his instruction to a subordinate to affix the President’s signature
to a document does not amount to a delegation of presidential authority in any
meaningful or legally significant sense. Thus, 3 U.S.C. § 301, which generally
authorizes the President to delegate “any function which is vested in [him] by law”
to the head of any department or agency, or any other officer required to be
appointed by the President by and with the advice and consent of the Senate, also
requires that such delegations be “in writing” and “published in the Federal
Register.” Nevertheless, we have concluded that “[w]here the only act delegated is
the act of signing, it is not necessary to formally delegate the signing function by
issuance of an Executive order and publication in the Federal Register pursuant to
3 U.S.C. § 301.” Kauper Letter at 2; see also Rehnquist Memorandum at 6 (“Even
where there is a specific statutory reference to the President’s signing a document,
the practice has apparently been not to formally delegate the authority to sign
documents on behalf of the President by publication in the Federal Register.”).
Similarly, we have approved the “delegation of authority to members of the White
House staff to physically sign documents” even though, under section 301, “it
would not be proper for the President to delegate decision-making authority to
members of the White House staff” who are not appointed by and with the advice
and consent of the Senate as this statute requires. Rehnquist Letter at 1 (emphasis
added).
The Department’s opinions provide no basis for concluding that an instruction
that does not amount to a delegation of presidential authority for purposes of
section 301 should nonetheless be regarded as such a delegation for constitutional
purposes, and, for the reasons explained above, see supra Part I.C, we believe it
should not be so regarded. Rather, as we previously explained, so long as the
President personally makes the decision to approve and sign a bill, “the principle
that the President may not delegate to another person his authority to sign a
bill . . . means, for example, that if a White House aide were to sign his own name
to a bill, that bill would not thereby become law. By contrast, the President’s
directive to an aide to affix the President’s signature to a bill does not involve a
delegation of authority.” Whelan Memorandum at 2. And, if a presidential
instruction to affix the President’s signature to a document the President has
decided to sign does not amount to a delegation of presidential authority, we are
aware of no basis for distinguishing a statutory requirement that the President sign
a document (which the Department has repeatedly held can be satisfied through
such an instruction) from the constitutional requirement that the President sign
bills he approves. Cf. U.S. Const. art. VI (establishing that the “Supreme Law of
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the Land” includes both the “Constitution” and “Laws of the United States which
shall be made in Pursuance thereof”).
Accordingly, we conclude that neither past practice nor previous opinions
relating to the signing requirement of Article I, Section 7 foreclose reading that
requirement in a manner that is consistent with the traditional common law
understanding of “sign,” with Attorney General and Department of Justice
opinions applying that understanding to statutory signing requirements, and with
the settled interpretation of the related presentment and return provisions.
IV.
For the foregoing reasons, we conclude that the President need not personally
perform the physical act of affixing his signature to a bill he approves and decides
to sign in order for the bill to become law. Rather, the President may sign a bill
within the meaning of Article I, Section 7 by directing a subordinate to affix the
President’s signature to such a bill, for example by autopen. *
HOWARD C. NIELSON, JR.
Deputy Assistant Attorney General
Office of Legal Counsel
*
Editor’s Note: A footnote providing advice concerning implementation of the authority discussed
in this opinion has been redacted.
126