No Pardon for Auto Pen

No Pardon for Auto Pen

By Lawrence W. Reed

The Biden autopen scandal is heating up. It is not a minor matter, except for those who don’t give a damn about doing things right or as the Constitution stipulates.

Article II, Section 2 of the Constitution states, in part, that the President “shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” That appears to be definitive. No limits (except impeachment, clearly specified). No other language in the document deals with the issue. So no room to raise doubts about the 80 pardons and 4,165 commutations Biden granted, considerably more than any president in American history. Right? Not so fast.

When it comes to interpreting the Constitution, I am both a textualist and an originalist, in the tradition of the late, great Antonin Scalia. I believe words have meaning. I recognize that the meaning of a word might evolve over time, but it doesn’t make sense to me to read into the Constitution meanings that its words did not possess when they were written. Any departure from that perspective takes us down the dangerous “living Constitution” path, whereby we torture the document until it confesses to things its authors never intended so we can justify fleeting fads and ideologies. If we ever come to view the Constitution in such malleable terms, we might as well throw it away and let our “leaders” just make stuff up as they go.

If something in the Constitution needs to be updated for the times, the very same document provides an amendment process for that purpose. A free people with enough wisdom and self-esteem to value their freedom should never allow their representatives to revise the Constitution on the fly.

The “reprieves and pardons” language in Article 2, Section II, I gives the requisite power to the President. It doesn’t say to the autopen, to a robot, or to the President’s associates. This is important because if the President himself does not sit down, pick up a pen, and personally sign the pardon or commutation, how do we know if he is aware and approves, especially if he’s lost half his marbles?

No big deal, some say, if the President claims he was indeed fully cognizant (as Biden did a week ago). The Founders assumed the President would take his solemn duties seriously, executing them in a thoughtful fashion. They didn’t envision a machine doing his job. My question to Biden, who took a record-setting 577 vacation days in one presidential term, is this: Every pardon or reprieve is massively significant in the life of the recipient, so why didn’t you haul your ass off the beach and into the office to sign these important documents?

Is that too much to ask? I don’t think so.

The extensive use of the autopen in the final months of a mentally impaired presidency has naturally rung some alarm bells. So far, Democrats don’t seem to give a damn, but you know they would if it was a fading Republican president who had been so careless and nonchalant. The matter is further complicated by these facts: Biden granted clemency to whole groups as well as individuals; to family members and relatives; and for crimes that haven’t even been committed yet.

Texas Senator Ted Cruz argues that the pardons by group renders those null and void: https://tinyurl.com/tnafvp9f. Georgetown University legal scholar Randy Barnett says the Biden autopen revelations constitute “the biggest constitutional scandal in U.S. history”: https://tinyurl.com/psy7x799.

What if a President were to announce one day, “I hereby pardon everybody in America for every offense they committed and for every offense they might yet commit.” Would anyone in his right mind believe that this would be in keeping with either the spirit or the letter of the Constitution?

Maybe every single one of those 4,200+ grants the autopen signed on Biden’s behalf were right and proper. Maybe Biden even read some of them. And even if he had personally signed each one, we still wouldn’t know if he knew what he was doing. But doggone it, I’d like to know that he put at least some thought and effort into the whole thing and that nobody else with an agenda took advantage of the situation. Full steam ahead with the investigation!

Whether by amendment or Supreme Court decision or act of Congress, we should clarify the presidential power of reprieves and pardons. In at least seven decisions in the last 160 years, the Court has done precisely that. It once opined, at least implicitly, that the Founders did not include future, unknown, yet-to-be-committed offenses within a President’s power to pardon or reprieve. How can you pardon someone before he’s even accused, let alone convicted, of a crime? If you’re interested in those rulings, see a very good 2019 article by Zachary J. Broughton in the Western New England Law Review.

Clarifications I would welcome would be these: Pardons and reprieves must be signed by the President, not an aide or a machine. And they can’t be for future offenses the beneficiary hasn’t committed yet.

Joe Biden proved to be one of the worst presidents in U.S. history because he rarely took the job seriously. That includes the border, crime, inflation, the budget, the debt, Afghanistan, the weaponization of federal agencies, and even the choice of a running mate. So, we’re supposed to take seriously his autopenned pardons and commutations, even those for his corrupt associates? That’s laughable, and tragic for the country at the same time.

#####

(Lawrence W. Reed is President Emeritus, Humphreys Family Senior Fellow, and Ron Manners Global Ambassador for Liberty at the Foundation for Economic Education in Atlanta, Georgia. He blogs at www.lawrencewreed.com.)