Autopens and Out to Lunch Presidents

Missouri Attorney General Andrew Bailey wants the Department of Justice to look into Biden’s autopen signed executive orders. It’s a powder keg lying about in an unruly political moment. Biden may not have been a full-time nullity, but we know the firefighters in the press kept things quiet, passed off doddering as a stutter, and when presented with evidence they were supplying questions ahead of time to administration officials and other enabling acts, stood very, very still. How often he was out wasn’t something we were worthy of being told.

We knew there was an issue from watching the basement campaign and all of its lids. Now most of the Lawrence O’Donnells are pretending they had suspicions, but didn’t know-know, y’know. (Tread lightly, implications, national interests, unless we were absolutely certain.) In the last few months, I’ve been told “some” suspected in the weeks leading up to the debate. After a time, “some” didn’t argue when the Hur Report was referenced without pushback. Water testing was underway, recollections of meetings from 2021 were talked about openly, then meetings from 2020 where it was understood how the campaign would handle their guy to keep the world from noticing the stutter. The smart set bravely bread-crumbing that they were oblivious to the obvious, or that others — better if it’s others — in their industry conspired to maintain the biggest con. A “since” comparison doesn’t spring to mind.

We’ve probably got a few more months of reputation jockeying before we can throw away the qualifiers without getting drawn into a side argument about whether people throughout history were able to register when another person — one not even a relative — was slipping before credentialed doctors were invented to certify decrepitude. The Tapper subspecies of Lawrence O’Donnell isn’t on the attack as it was a few years ago.

The Missouri AG isn’t going to be the last to ask about the legitimacy of all those Biden autopen orders and whether the signing button was pressed with or without presidential knowledge. This matters immensely. I’ll indulge in a dorm room argument about the elasticity of delegation, but in the end, if the EO was stamped without the president’s knowledge, whoever was involved needs to be tried for whichever of “sedition” or “treason” has usurpation of the national right to select representation wrapped up in it.

A president doesn’t have to be there for the autopen signing. Bush II got a thumbs up from the Department of Justice about using it to remotely sign bills into law, rather (if I understand it correctly) than executive orders, but never exercised the ability. Obama did at least twice that I’ve read about: once to extend parts of the Patriot Act and again to extend Bush tax cuts from France and Hawaii, respectively. There isn’t any question as to whether the president can get a lackey to press the enactment button.

I’d be surprised if a president can delegate decision-making about whether to sign. I can’t make an argument as to why he couldn’t, though. All I’ve got is the fear that if I keep asking, I’ll come up with: “Why not?”

I understand that in almost all cases presidents don’t write the actual orders. He’d dictate the shape but there’s a lot of rent-seeking to be done, making sure lawyers are required to interpret what the thing says. So, he gets a hankering to direct; then it's off to the JD encryption engine and back to his desk. I doubt there’s any requirement that he reads it before approving. It’d be irresponsible not to, but there’s no monitor insisting niceties are observed. If a president told an aide he was sick of hearing Billy Ocean songs in elevators and wanted an EO banning Ocean’s infectious blending of calypso and soul from all federal building lifts — as Billy would say — and the aide wrote it up, handed it over with a “Here’s your ‘Get Out of My Car’ ban, Mr. President,” and the president signed it without reading, no one would bat an eye.

A remove further would be: “Do something about the elevator music and use the machine. Don’t bother me about it.” I don’t like that much delegation, but I suspect it happens, and I can envision a decent defense of it from a creeping/slippery slope angle.

I don’t think that’s the line of inquiry Andrew Bailey is prodding the DOJ to pursue. At least that’s not the angle the bloodthirsty mob on my Twitter/X timeline wants. The hope is that a history of autopen use lends credence to the idea that a mentally inept president was covering for all manner of unelected adventurism; that staff took advantage and indulged personal policy whims. Good luck proving that.

Speaker Johnson’s interview with Bari Weiss may have given the miscreants cover. Per Johnson, Biden clearly had no memory of signing a liquid natural gas ban, though there was an order issued. That tells me and everyone else who’s been watching what we already knew: Biden wasn't in charge. It doesn’t tell us whether or not Biden okayed the order. All we have is an incident of forgetfulness from a man who puts a mid-morning lid on the day. Anybody who snuck one in has a plausible claim to have gotten approval. Biden can’t reliably deny anything.

I fully believe Biden’s was a regency period. A council of aides and family with an occasional opportunist slipping something in, knowing that any recrimination or consequence risked bringing the house down. But they can always say they had a nod from the President.

If there was presidential approval, even sundowny, are-you-my-son approval, I don’t think there’s a road to prosecute much less invalidate the orders.

According to the Constitution, so long as you are elected, not born in Kenya, have lived in the country for fourteen years, and are at least thirty-five years old, you can be president. That’s it. There’s no “of sound mind and body” clause for good anti-schemer reasons. If being out of touch — slightly or full-blown Jello Pudding smeared and calling everyone “Frieda” — were any type of disqualification, we wouldn’t have a need for the 25^th Amendment and all its increments.

A diagnosed lunatic can be elected president. “Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress” submits a written declaration of presidential incompetency, the amendment states, the ball gets rolling. “Or other such body” seems dangerously open, and I’m left in interpretational limbo as to whether the VP is only necessary with officers or also a needed component of the Congress and whoever category. Once written and delivered, it’s up to Congress (specifically this time) to decide the fate of the executive.

There’s nothing mandating that a stark raving madman be removed. Only that he can be. Congress isn’t bound. If they want to be jerks about it — maybe the President is from the minority party, they’re past ballot change deadlines, and the majority senses an electoral win if he stays put — they can let him eat all the oatmeal he wants and secure in the Oval Office.

Per the Constitution, a barking madman elected to the presidency is a barking mad president. That’s for the best. We don’t need competing diagnoses to decide who is commander in chief. The crafters left interpretable terms in the 25^th. “Unable” and “inability” are a playground for claims and counterclaims, but there’s no triggered removal.

The long and short of it seems to be that if your aim is to have presidential EOs invalidated, and it’s actual laws Biden signed that would be the real and eventual target, you should have to prove there was no executive input and pity the aide left holding the ball. Presidential competence isn’t what matters. Whether he said “Ok-k-k-k-kay” is what matters.

[I put this up on my personal site, Might Stain Your Shirt, on March 10. It seems like it's suddenly a discussion point.]