ABC News’ Matthew Jaffe ( @jaffematt) and Devin Dwyer ( @devindwyer) report: Congress is expected to officially pass an extension of the Patriot Act tonight, just hours before key provisions of the national security law are due to lapse at midnight.
President Obama, currently on an overseas trip, is not at the White House to sign the bill, a requirement for the measure to become law.
So the president will use an autopen –- a machine that replicates Obama’s signature -– to sign the extension, according to White House spokesman Nick Shapiro.
"Failure to sign this legislation poses a significant risk to U.S. national security. As long as Congress approves the extension, the President will direct the use of the autopen to sign it," Shapiro said in a statement.
Jay Wexler, a Boston University law professor and author of “The Odd Clauses: Understanding the Constitution Through Ten of Its Most Curious Provisions,” says the constitutionality of using an autopen was confirmed in a thorough 2005 Office of Legal Counsel opinion.
Here's the relevant passage written by then-Deputy Attorney General Howard C. Nielson:
“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. … 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 [of the Constitution.]"