As we settle into the second Trump era, we’re also seeing the return of the strangest things becoming a controversy thanks to a presidential post on Truth Social.
The latest of these is a post declaring that a batch of pardons signed by President Biden during his final days in office are “VOID, VACANT, AND OF NO FURTHER FORCE OR EFFECT, because of the fact that they were done by Autopen.”
What is an autopen, you ask? It’s a machine used by elected officials, executives, and people of prominence who have to sign a lot of letters to do so for them mechanically.
I’ve actually had some experience with an autopen machine during my time working as a speechwriter for Gov. Arnold Schwarzenegger.
My verdict – the machine is a big pain in the neck to use. It’s clunky and there’s a rhythm to how you move to paper to make the signature in the right spot on the page that I never mastered. In fact, I could never figure out how to do it properly in my time working in the Schwarzenegger administration and eventually gave up trying to make it work.
Thankfully, we had a terrific team of executive writers who would run the governor’s letters and correspondence through the autopen machine.
But the Trump post got me thinking. Mixed in with the letters and correspondence were state proclamations, primarily for commemorative occasions like declaring March as Women’s History Month. Unlike letters, proclamations carry the weight of law.
So, are these documents legally valid if signed by autopen?
The answer is yes.
Neither the U.S. or California Constitution nor federal or state law explicitly mandates that the president or the governor personally and physically sign every document in their own hand.
The California Constitution says a law becomes a statute “if it is signed by the Governor,” while falling silent on the method of signature. State law also has procedures allowing e-signatures to be used in conducting state business – much in the same way e-signatures are commonly used in private financial and real estate transactions.
At the federal level, the U.S. Constitution says that legislation passed by Congress shall be presented to the President and “if he approve, he shall sign it.”
A 2005 memo from the U.S. Department of Justice issued a legal opinion declaring that, “the President need not personally perform the physical act of affixing his signature to a bill he approves” and may direct “a subordinate to affix the President’s signature to such a bill, for example by autopen.”
There is a “principle of signatures” in common law – one can sign a document with their own hand, and also authorize an agent to do so for them, in this case the autopen machine.
Like governors, presidents commonly use the autopen machine to sign documents. President Obama was the first president to use an autopen to sign a bill into law in 2013. Smithsonian Magazine notes that Thomas Jefferson was the first president to use one, and the machine was heavily used by Harry Truman and John F. Kennedy.
The Justice Department memo notes 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.”
And that’s the rub here in Biden autopen controversy.
Given the former president’s obvious decline in recent years, did he clearly make the decision to grant the pardons?
It seems obvious that he did, as media coverage shows Biden was considering the pre-emptive pardons for weeks before issuing them in his final hours in office.
It’s one of those things that we’ll never know for sure – and no subsequent legal challenge will be able to prove one way or the other.
But the autopen controversy begs the question.
The pen is mightier than the sword. However, is it mightier than the autopen machine?
For those, unlike me, who can figure out how to use the machine properly, the answer may be yes.
Tim Anaya is the Pacific Research Institute’s vice president of marketing and communications and co-author of “The California Left Coast Survivor’s Guide.”
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