Wednesday, June 1, 2011

Electronic Presentment and Return OK'd by OLC

The Office of Legal Counsel last month issued a memorandum opining that presentment and return of bills in electronic form, and not on paper, satisfies Article I, Section 7.  The memo is hardly a surprise in light of the Office's 2005 memo concluding that the President may sign legislation using an autopen--an opinion upon which President Obama recently relied in signing the Patriot Act extension.  But still it's a good case study in constitutional interpretation.

Article I, Section 7 reads, in relevant part:

Every Bill which shall have passed the House of Representatives and the Senate, shall, before it becomes a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it.

The question was whether the terms "presented" and "return" require presentment and return in paper form, or whether they allow electronic form.

The OLC concluded that the terms are not terms of art, drawn from the common law.  It therefore looked at their meanings in ordinary usage, consulting two dictionaries that define terms at the time of, and before, the Constitution's adoption, and contemporary dictionaries.  (No matter how pliable the terms were, nobody in the founding generation could have intended or understood them to include electronic transmissions.  But the definitions do not rule this out.)  The OLC also looked at the purposes of the presentment and return requirements, historical practice, and legal precedent (though sparse)--all common sources for the OLC.

In this memo and in the 2005 memo, the OLC emphasized a practical approach to Section 7 in light of changing technology.  In particular, the OLC recognized that the political branches adapted to changing technology in signing, presenting, and returning.  Use of an electronic medium is only an extension, for practical reasons, of that practice.


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