For those on the right who think this will invalidate much of the prior administration, this is magical thinking along the lines of a silver bullet designed to stop everything.

I actually do know the law here fairly well.

The basic rule of thumb is that signing a document is a ministerial act. The intention matters. If Joe Biden intended for someone to sign his name on a document, that is what matters. This is a rule in common law going back to the English Kings in the 1600’s who often had others affix the King’s seal to matters. Those matters were binding because the King’s intended his seal to be affixed even if he did not pour the wax and set down his seal.

I’ve had people throw wild hypotheticals at me since I brought this up yesterday. “What if they summoned Joe Biden’s doctor to court and he testified Joe Biden was out of his mind and incapable of doing so?” Sure. Good luck with that.

What is more likely is that Joe Biden’s wife and Chief of Staff would testify that Joe Biden was in sound mind at the time, lucid, etc. etc. etc. and that he did intend for his signature to be affixed by an auto pen.

All day yesterday, people who do not know the law in this area kept spinning wilder and wilder and more argumentative hypotheticals. I get the desire for a silver bullet, but it is a fairy tale.

What is real is this.

The Supreme Court has never heard the matter of pardons before. But the White House Office of Legal Counsel, during the Bush years, affirmed the long held view that signing a document is ministerial. What matters is the intention of the President — if the President tells you to sign his name, that is as good as the President signing it. The Office of Legal Counsel matter was legislation, not a pardon, but the same basic principle applies. There are numerous court cases of executives authorizing others to sign legally binding documents on their behalf and all those cases conclude the signing is just a ministerial act so long as the executive had not surrendered his power to make the decision.

Only the President can sign a bill into law. Only the President can make certain appointments, promotions, and commissions. Only the President can grant pardons. To argue he can use an auto pen on the first three and not the last is a weak argument. Even more so, a clear reading of the Constitution affirmatively requires the President to “sign” legislation, which can be done by directing another to sign his signature. The Constitution does not actually require the President “sign” a pardon to be effective.

You may not like this, but good luck challenging it in court. Likewise, a few weeks before the pardons, Biden expressed that he was leaning towards granting those pardons.