The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Some Questions About An Autodidactic Autopen
In the abstract, the use of an autopen is not problematic. But in practice, there may be serious problems. Consider a few scenarios.
First, imagine the President has a stroke, and is unable to move any parts of his body. He cannot even pick up a pen. But the President retains all of his mental faculties and can communicate instructions orally. The President instructs his trusted aide to use an autopen to sign a bill, pardon, or executive order. Would anyone think that use of an autopen is problematic? I suppose an argument could be made that the enfeebled President is unable to discharge his duties, and should be removed under the 25th Amendment, but I am doubtful that step is necessary.
Second, imagine that the President is about to take an international trip, and he knows that Congress is about to pass an important bill that must go into effect right away. The President instructs his trusted aide to use an autopen to sign the bill as soon as it arrives at the White House. Would anyone think that use of an autopen is problematic? There was once the thought that the President should not leave the country. And in some states, when the Governor leaves the state, the Lieutenant Governor can exercise the powers of the Governor. But under our Constitution, the President can, and indeed is expected to engage in foreign diplomacy, and will often be away from the Capital when important bills are passed. Why should important legislation remain un-enacted because the bill cannot be brought to the President quickly enough?
Third, imagine that the President is about to take an international trip, and Congress is debating a key provision of an important bill. It is unclear how the final bill will be structured. The President instructs his aide to make a judgment: if the aide thinks the final bill is consistent with the President's preferences, he should use the autopen to sign bill; if the aide thinks the final bill is inconsistent with the President's preferences, he should use the autopen to veto the bill. This example strikes me as problematic, as the President is delegating to an aide the discretion to sign or veto a bill. Here, there are no clear instructions, but rather a judgment call--a call the President has to make.
Fourth, imagine that the President tells his Pardon Attorney to grant any pardons that the Pardon Attorney thinks are consistent with the President's preferences, and authorizes the Pardon Attorney to use the autopen to sign the pardon. The President never even sees the pardon applications. (I thank my colleague Seth Barrett Tillman for this example.) I do not think the pardon power is delegable in this context. The President must make the individualized determination for each pardon. Now it might be the case that an aide simply puts a piece of paper in front of the President, and the President signs it without reading it--perhaps based on an aide's summary. But that signature is prima facie evidence that the President intended to grant the pardon. With an autopen, by contrast, that prima facie evidence the President intended to grant the pardon is not present. In my hypothetical, the instruction given to the Pardon Attorney rebuts any presumption of presidential determination.
Fifth, imagine that the President is clearly suffering from senility. He is capable of reading from a script, and can sign a paper placed in front of him, but he has no capacity to know what he is doing. Imagine further that his cabinet is unwilling to invoke the 25th Amendment for various reasons. Given these facts, a number of documents are released from the White House signed with an autopen, including statutes, pardons, and executive orders. There is no clear record of whether the President instructed aides to use the autopen on any particular document. The President never made personally any public statements about whether the authorized the signing of any particular document. There may be some press statements attributed to the President, but it is not clear the President authorized such statements. Would this use of the autopen be valid? Is there something like an enrolled bill rule, where a bill that has the President's signature is presumed valid? Or could we consider the President's underlying senility?
Sixth, imagine that the President suffers from a stroke, and the status of his medical condition is kept secret from the public. Given these facts, a number of documents are released from the White House signed with an autopen, including statutes, pardons, and executive orders. We later learn that the President may have been in a coma when some of these documents were signed, and his wife (let's call her Edith Wilson) instructed aides to use an autopen to sign those documents. Would those bills, pardons, or executive orders be valid? Could they be collaterally challenged?
I think the use of the autopen raises some very difficult questions.
