PATRIOT Sunset Extension Act of 2011 "Signed" into Law

Late last Thursday S. 990, PATRIOT Sunsets Extension Act of 2011 [Thomas], was signed into law shortly before sections of the Act were set to expire. In what appears to be a presidential first, an autopen was used at the direction of President Obama who was in Europe and who apparently would not have received a copy of the bill before "sunsets" kicked in. Ah, no email access to receive an authenticated PDF that could have then been printed? I thought this was the high tech White House administration.

Some may question the legality of using an autopen under Article 1, Section 7 of the Constitution. The New York Times reports that White House officials relied on a 2005 DOJ memorandum which concluded that “the president need not personally perform the physical act of affixing his signature to a bill to sign it.” See Making Legislative History, With Nod From Obama and Stroke of an Autopen. One has to wonder if any opponents of S. 990 will litigate the issue. Imagine a brief on the merits with string citations to Justice Scalia. Food for thought or mindless navel gazing? Constitutional law prof scholars have all summer to chew on this issue for a potential SSRN paper.

Ruthann Robson, Professor of Law & University Distinguished Professor, CUNY School of Law, authors the first blog post I've seen on the issue. See Originalism and the Autopen: Obama's "Signing" of Patriot Act Extension on Constitutional Law Prof Blog (May 30, 2010) (Link to the 2005 DOJ memorandum provided by the post). Quoting from the post's concluding paragraph:

Although President Bush never relied upon the Memorandum issued in 2005, and the use of the autopen has provoked satire ("Despite possible constitutional challenges, the Supreme Court is expected to uphold the practice given that opposing it would likely offend Justice Scalia's autopen, Clarence Thomas"), it seems that while Obama's resort to the autopen may be a first, it is not unconstitutional, even under an originalist interpretation.

Call me old school but I want my president to put pen to paper when signing every bill into law. Legal or not, an autopen should be left to mass mailings. And no, use of an autopen is not indicative of a high tech administration IMHO.

S. 990 as "signed" reauthorizes the three controversial government surveillance powers from the PATRIOT Act to June 1, 2015 despite some unsuccessful bipartisan Congressional opposition. See the ACLU's Four More Years of Unchecked Spying, Surveillance and Secrecy and the Washington Post's Patriot Act extension signed into law despite bipartisan resistance in Congress. Quoting from a pre-S.990 ACLU analysis (since no changes, why not):

Section 215 of the Patriot Act authorizes the government to obtain "any tangible thing" relevant to a terrorism investigation, even if there is no showing that the "thing" pertains to suspected terrorists or terrorist activities. This provision is contrary to traditional notions of search and seizure, which require the government to show reasonable suspicion or probable cause before undertaking an investigation that infringes upon a person's privacy. Congress must ensure that things collected with this power have a meaningful nexus to suspected terrorist activity or it should be allowed to expire.
 
Section 206 of the Patriot Act, also known as "roving John Doe wiretap" provision, permits the government to obtain intelligence surveillance orders that identify neither the person nor the facility to be tapped. This provision is contrary to traditional notions of search and seizure, which require government to state with particularity what it seeks to search or seize. Section 206 should be amended to mirror similar and longstanding criminal laws that permit roving wiretaps, but require the naming of a specific target. Otherwise, it should expire.
 
Section 6001 of the Intelligence Reform and Terrorism Prevention Act of 2004, or the so-called "Lone Wolf" provision, permits secret intelligence surveillance of non-US persons who are not affiliated with a foreign organization. Such an authorization, granted only in secret courts is subject to abuse and threatens our longtime understandings of the limits of the government's investigatory powers within the borders of the United States. This provision has never been used and should be allowed to expire outright.

See also the ACLU's 2009 report, Reclaiming Patriotism: A Call to Reconsider the Patriot Act, which could be reissued as a 2011 report. [JH]