WELL: This Will Cause Some Heartburn: Trump Declares POTATUS Auto-Pen Pardons ‘Void.’ The fight over this will be interesting, and ugly, and I don’t see where Trump has anything to lose from it.
Meanwhile, although Congress lacks the power to limit the president’s discretion on granting pardons, as I’ve written years ago it possesses the power to regulate pardons procedurally in many ways — for example, to require that they be signed in person by the president (no autopen), and perhaps to require that they be witnessed by others whose names are recorded, and deposited with the National Archives. This is under its power “to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” That should be done.
UPDATE: It occurs to me that Trump may know more than we do about how the autopen was used, who was in charge, etc.
ANOTHER UPDATE: Lawprof Ann Althouse: “The NYT writer — Shawn McCreesh — observes ‘There is no power in the Constitution or case law to undo a pardon, and there is no exception to pardons signed by autopen,’ but to say that is to look past the question whether there was a pardon. Even if a pardon can’t be undone, how do we know it was ever done? We have a piece of writing, signed by autopen, and maybe it can be shown to have originated within the White House. The power that is in the Constitution is given to ‘The President,’ so, interpreting that clause, one might question whether his hand must do the signing… and whether his mind comprehended what he was doing.” Using the autopen at the direction of the President is one thing. Using the autopen without his knowledge or comprehension is another.
She doubts that courts will want to open that can of worms, and she’s probably right. But what if it can be established that the pardons were done entirely by staff without Biden’s knowledge? Judges’ clerks may write their opinions, but if they write and issue them while the judge is in a coma, that can’t be valid, right? There must be some point where it’s not a question of delegation, but simply fraud. Again, what does Trump know? What have permanent White House staff told him? (Bumped).