PJ Media has been covering the Joe Biden autopen scandal ever since it broke earlier this month. According to the Heritage Foundation’s Oversight Project, the White House used an autopen to sign nearly every document Joe Biden signed. Given Biden’s cognitive decline, this revelation prompted concerns about whether he was aware of or authorized these actions.
The media largely ignored the issue until Donald Trump intervened, declaring Biden’s autopen-signed pardons “void” and claiming Biden “did not know anything about them.” This movie finally forced the media to pay attention to the scandal, and that’s pretty huge. This is a discussion that needs to take place, and while I’m skeptical that anything will ultimately come of it, legal scholars insist that anything that was the autopen signed may, in fact, be invalid.
Here’s legal analysis from the Oversight Project’s memorandum:
The United States Constitution vests numerous powers in one man and one man alone—the President of the United States. These powers include signing or vetoing bills, signing or vetoing orders, resolutions, or certain legislative votes, nominating and commissioning Officers, and granting reprieves and pardons. In all of these instances, the President’s personal action is required, i.e., he “shall” perform some action. These mandates are exclusive to the President. Therefore, it is well established that the President cannot delegate these decisions to anyone. The President affixing his wet signature not only signifies consent, but is the legally required act.
What happens when the president doesn’t personally sign documents exercising his powers, instead relying on a proxy or autopen to fulfill constitutional duties or issue pardons? And how does this change when the president lacks the mental or physical capacity to perform these duties?
“At its core, the longstanding historical practice that the President affix his wet signature to Acts of Congress and clemency warrants stems from the interconnected issues of authority and authenticity,” explains the Oversight Project. “The Constitution vests the execution of Executive powers, the signing of bills into law, and the awarding of pardons and clemency in one person—the President.”
Related: Is This the Aide Who Abused Joe Biden’s Autopen?
While the president can seek advice, the final decision and responsibility rest with him. Since the nation’s founding, requiring the president’s wet signature on key documents has served as a vital safeguard against fraud and unauthorized authority.
The use of the autopen to affix the President’s signature has been justified by the modern Administrative State through tortured Constitutional interpretation, asking the wrong core questions, and deliberately ignoring contrary authority. Thus, the Department of Justice’s Office of Legal Counsel (“OLC”) in 2005 reversed their longstanding interpretation that had seen bills flown around the world for the President’s wet signature and has opined that the President may even autopen bills. This opinion is wrong. But even that erroneous opinion was clear that “[w]e 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.” Thus, the Biden Administration’s use of the autopen may well have been contrary even to the most permissive interpretation of the law.
To this point, Trump explained this week that he doesn’t use an autopen for any legally binding documents.
“We may use it, as an example, to send some young person a letter because it’s nice,” Trump said. “You know, we get thousands and thousands of letters, letters of support for young people, from people that aren’t feeling well, etcetera. But to sign pardons and all of the things that he signed with an autopen is disgraceful.”
In this light, the key issues associated with any auto-penned document involving a non-delegable decision that only the President can make under the Constitution are two-fold: (1) whether or not President Biden made the decision; and (2) whether or not President Biden, having made the decision, then directed a subordinate to affix his signature to the document at issue. Again, this is a concept well known to everyday Americans. Even though in some instances the law permits ministerial acts to be delegated, one must be competent to act, and that requirement protects all against fraud (including the individual in question).
“Every leftist who shrieked, whined, and moaned about defending democracy is a complete hypocrite if they are not outraged by the antidemocratic action on the scale of presidential actions enacted by people who were never elected to anything,” Oversight Project Executive Director Mike Howell told The Daily Signal on Tuesday. “The pardons are as valid as a $3 bill.”
While past presidents have used autopens for minor or routine proclamations, Howell argued that this situation was different. He pointed to the 25th Amendment, enacted after JFK’s assassination, which established a process for replacing an incapacitated president.
“This was a device used as a workaround of the 25th Amendment,” Howell said.
A 2024 Justice Department report by Special Counsel Robert Hur on Biden’s handling of classified documents found he had “diminished faculties,” which ultimately saved him from prosecution. It should have forced his removal from office, but Democrats swiftly came to his defense. It wasn’t until after his disastrous debate performance against Donald Trump in June forced them to confront the reality that they couldn’t hide it anymore, and party leaders forced Biden off the ticket.
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