Health Care Reform Is Unconstitutional

Like everyone at George Mason University, the Volokh Conspiracy, and the Heritage Foundation, I pride myself on intellectual honesty. Which is why it pains me to conclude—in an analysis that has absolutely nothing to do with my political leanings—that, based on clear text and precedent, the health care bill is unconstitutional. The President used too many pens to sign it.

As everyone knows, Article I, Section 7 of the Constitution provides that for a bill to become law, the President “shall sign it.” We need look no further than the plain text of that clause to understand that the President has not fulfilled this mandate. According to the Beck-Webster Dictionary (2d ed. 1790), “to sign” means to “mark with one’s usual signature; to apply one’s name, as to a legal document.” Yet Obama did not “sign” the document in any such manner.

Instead—as everyone who watched Fox News this morning witnessed—Obama picked up one pen at a time, made a mark on the bill, paused, picked up another pen, and repeated the process over several minutes, eventually spelling out the letters of his name, using some twenty different pens. This is not a “signature” in any sense of the term as the framers understood it.

There can be no doubt that the phrase “to sign” denotes the use of a smooth, continual stroke, without gaps or pauses. What’s more, this is one of the rare cases where proof of the framer’s intent on this point is indisputable—if not photographic. Take a look at this image:




Do you see any half-strokes? Any pauses? Evidence of multiple quills? Of course not. The framers meant "sign" to mean exactly what they signed. You don't need some fancy Berkeley law degree to understand that. (OK: If you prefer original meaning originalism over original intent originalism, contemporary legal documents of the period will illustrate the same point on how ordinary citizens signed important documents (such as their slaveholder deeds)).

To be sure, several court cases from the 1930s and 1940s expanded the definition of “to sign” beyond this original meaning. In Dook v. Logg, 301 U.S. 619 (1937) and Legally Red, Inc. v. HH Russell, 317 U.S. 111 (1942), the Supreme Court held that Presidential use of writing instruments was essentially delegated to the policy judgment of the executive.

But those decisions occurred during a very short time, in an era of unprecedented deference to the President, and with a Court that has never before or since taken such an expansive view of documentation. The people need not recognize or heed such decisions, because they contravene the original meaning—nay, the original picture—of the signings clause.

Indeed, if we uphold what the President did today, where does it end? Does the President simply have absolute power to do anything he wants to the bill and call it a “signature”?

What if he just placed a checkmark on it? Or smudged his hands at the bottom? What if he has an aide sign the bill? What if he’s on a trip to Morocco, using a bathroom in the parliamentary palace, and he calls up Bob Kowalski of Kowalski Plumbing in Cedar Rapids and tells Bob to sign the bill? Under the expansive liberal view of the Constitution, this would be proper.

Put another way, because I can find no principled distinction between the President’s “signature” today and the President-on-a-Moroccan-shitter-so-Bob-signs-the-bill hypothetical, one must not exist. Therefore, the bill is unconstitutional.

Indeed, due to widespread political ignorance, we cannot rely on the political process to police these acts—it is too hard for the people to pay attention to how many pens were used, what color, Bic v. ballpoint, etc.—leading to explosion in the size and complexity of televised bill-signings. By enforcing stricter, smaller signage requirements, we will empower the people (or something).

If the judiciary it not up to this task, I hope a new political movement will be. A groundswell to repeal health care—with its flagrantly unconstitutional Presidential signature—may well be underway. A new Gallup poll showing 49-40 favorability for the bill augurs well for this counter-revolution—so long as you read those numbers backwards. (Always begin with the plain text as it appears in your head.) Finally folks, remember to never give up hope—even on the most arcane conservative minutiae imaginable. Trust me: this is a big fucking deal.