As a lawyer, I see that real concerns have been raised about the capacity of President Joe Biden or Kamala Harris to fulfill their duties required of his office. These concerns have significant legal implications regarding the executive orders, pardons, and documents signed by the President.
Specifically, questions have arisen regarding whether President Biden fully comprehends the content of the documents he signs, and whether his use of a signature machine, such as an autopen behind closed doors, might further undermine any legitimacy of any presidential actions in these last few months.
This paper explores the issue of presidential mental capacity and disability, the potential consequences of signing documents via autopen, and argues that any future orders should be conducted in a manner that ensures the President’s full participation and understanding. As with US Federal Judges, there is no ADA application to a President or Vice President, but they potentially could take disability from office and resign.
1. The Legal Basis for Presidential Capacity
Under the U.S. Constitution, the President of the United States must possess the legal mental capacity to perform the duties of the office. The 25th Amendment provides a framework for addressing situations where the President is temporarily or permanently unable to carry out his duties, either through voluntary or involuntary means.
However, determining when a President’s cognitive or physical condition renders them unfit for office is complex. Article II of the Constitution does not specifically address the question of presidential capacity, leaving it to public discourse, legal analysis, and potential intervention under the 25th Amendment if necessary.
Legal scholars and constitutional experts have raised alarms about the President Biden’s remaining cognitive abilities after several brain surgeries and recent dementia. Many argue that signs of cognitive decline, often linked to age, should be carefully monitored.
According to most legal authorities, if a president’s mental faculties are damaged to the point where they cannot analyze or comprehend the consequences or implications of their choices, the President may not possess the necessary legal capacity to sign any documents.
If President Biden's cognitive abilities are impaired since his brain surgeries or from a later stroke or closed head injury, the legal validity of his actions, such as signing executive orders, pardons, or other official documents, will probably be called into question. While other presidents such as Wilson and Eisenhower had strokes, the science and law has caught up to the situation where it can’t be legally ignored anymore.
2. The Role of the Autopen and Other Signature Devices
As somebody who has worked for college presidents and US Vice Presidents, I have personally used what is called an autopen to sign Holiday Cards etc. Because of this, a growing concern of legal scholars is the potential use by White House Staffes of an autopen or other automated signing devices to execute presidential orders, appointments, or pardons during Biden’s last year of office especially since the Trump debate exposed Biden’s cognitive problems.
The autopen, a mechanical device that mimics a person's signature, has been used by presidents in the past during times when they were unavailable to sign documents in person. While the use of the autopen is legally permitted, it raises serious legal questions about whether an incapacitated president is fully aware of the content and consequences of the documents being signed. Being around loved ones, friends, or folks who have had serious brain injury or stroke, they many times can have a jovial conversation, but can read, comprehend or synthesize written or mathematical information anymore.
An autopen's use would be particularly problematic if the President’s cognitive faculties are in question. As legal expert have said, a signature produced by an autopen is not a legal signing of a document by a human being. In an era where concerns about forgery are prominent, transparency about authentication of signatures is vital.
If President Biden is unable to sign documents due to cognitive limitations, the unauthorized or un-witnessed use of the autopen could create criminal prosecutions casting doubt on the legitimacy of signed executive orders and other documents.
3. Pardons and Executive Orders: Legal Consequences
Executive orders and presidential pardons carry significant legal weight, shaping policy and influencing the lives of citizens. If questions surrounding President Biden’s mental capacity arise, the validity of these actions may be challenged. A presidential pardon, for instance, involves the exercise of significant discretion, and if the President does not fully understand the reasons behind the pardon or the individuals involved, the legitimacy of such a pardon could be called into question.
If the signing of any important document or a pardon document is not witnessed and video-documented, we are presuming that these documents are forgeries until proven otherwise.
Likewise, executive orders issued by a President who lacks the requisite capacity to understand the implications of those orders could result in legal challenges. A recent example involves the challenges to executive actions taken by President Biden's administration, which some critics argue may have been signed without the President’s full mental capacity.
As legal scholars suggest, the President's power is inherently tied to their ability to comprehend and make informed decisions. The act of signing, especially for pivotal documents, must reflect not just the formal action of putting pen to paper but an understanding of the content being approved.
4. A Call for Transparency and Video Documentation
Given the concerns over the President’s potential lack of capacity and the facilitation of unauthorized signatures and automated signatures, there is a growing argument for greater documentation and authentication in the signing of executive orders, pardons, and other legal documents. Biden’s team would be well served to request and achieve some type of “Legal Apostille” on any document that is allegedly signed by the President in the last days of his office.
Moving forward, it is crucial that every significant document signed by President Biden, or any future president facing similar concerns, be accompanied by video documentation and witnesses. This would ensure that the public, Congress, and legal experts can observe the President’s actual viewing and understanding of the content being signed.
Such a practice would also help prevent future legal challenges to the validity of presidential actions. If the President were to sign important documents under conditions that raised questions about their mental clarity, video footage could serve as evidence of their capacity to understand the content.
As some have suggested, video documentation would provide reassurance that the President is indeed signing the documents and making decisions with reasonable mental capacity. This is essential in preserving the integrity of executive actions.
5. Conclusion: The Need for Immediate Investigation and Transparency
The concerns surrounding President Biden’s capacity to sign legal documents and the potential use of the autopen should not be dismissed. As America’s Wealth Management Law Professor and estate planning lawyer, I can say that some states still allow signatures by the disabled who have capacity or lucid moments even pausing at intervals; however, that standard may not apply to the president who is just given a stack of paper to scribble an initial.
The integrity of executive orders, pardons, and other presidential documents is crucial for maintaining the rule of law and ensuring accountability in governance. Moving forward, all significant presidential actions should be accompanied by witnesses and video documentation to guarantee transparency and to address any potential doubts regarding the president’s capacity. At this juncture, any material document signed by a Presidential Autopen is presumed to be a document that is unauthorized and potentially a forgery.
Additionally, an investigation into recent “mass signatures” on presidential orders and documents signed under questionable conditions should be conducted to assess whether they were legally valid and whether the president fully understood the content of what he signed. Just like contesting a last will and testament, the officers and stakeholders of America can probably contest any un-witnessed legal document signed by our president since the time of the debate or potentially before.
Recently, several news outlets have conferred the virtual disability of the president, and now American knows that Biden does not reasonably have the time of mental acuity to sign or comprehend the thousands of documents that are said to have been signed in recent days. Prominent New York News Media is now saying that the staff at the White House also knew and had full knowledge of the Presidents cognitive disabilities and hid it.
In a time when the President’s mental fitness is a subject of national conversation, it is vital to ensure that the power vested in the office of the President is exercised by someone capable of fulfilling the duties of the office and that forgeries of presidential documents is prevented.
Since the White House staff knew or should have known that Biden may not have the legal capacity to sign documents, legal scholars, experts, and citizens alike have the right to demand greater authentication of documents and accountability in how the President’s actions are carried out, and in ensuring that any use of devices like the autopen does not undermine the legitimacy of presidential powers.
Furthermore, if anyone forged presidential documents with an AutoPen, they should be prosecuted to the fullest of the law.
References:
Twenty-Fifth Amendment and presidential disability:
- Feerick, John D. (2019). Unable: The Law, Politics, and Limits of Section 4 of the Twenty-Fifth Amendment. Oxford University Press. This book provides an in-depth analysis of Section 4 of the Twenty-Fifth Amendment, exploring its legal implications and limitations.
- Schuker, Daniel J. T. (2014). "Burden of Decision: Judging Presidential Disability Under the Twenty-Fifth Amendment." Politics and the Life Sciences, 33(2), 1-44. This article examines the challenges in assessing presidential disability and the constitutional mechanisms in place.
Academia
- Kalt, Brian C. (2012). "Of Death and Deadlocks: Section 4 of the Twentieth Amendment." Harvard Journal on Legislation, 54(1), 101-138. This paper discusses the ambiguities and potential applications of Section 4 of the Twenty-Fifth Amendment.
- Feerick, John D. (2011). "Presidential Succession and Inability: Before and After the Twenty-Fifth Amendment." Fordham Law Review, 79(3), 908-944. This article provides a historical perspective on presidential succession and the evolution leading to the Twenty-Fifth Amendment.
- Neale, Thomas H. (2018). "Presidential Disability Under the Twenty-Fifth Amendment: Constitutional Provisions and Perspectives for Congress." Congressional Research Service Report R45394. This report offers a comprehensive overview of the constitutional provisions related to presidential disability and succession.
Congressional Research Service Reports
- Feerick, John D. (2013). The Twenty-Fifth Amendment: Its Complete History and Applications. Fordham University Press. This book provides a thorough examination of the history and applications of the Twenty-Fifth Amendment.
- Kalt, Brian C. (2019). Unable: The Law, Politics, and Limits of Section 4 of the Twenty-Fifth Amendment. Oxford University Press. This book offers an in-depth analysis of Section 4 of the Twenty-Fifth Amendment, exploring its legal implications and limitations.
- Feerick, John D. (2011). "Presidential Succession and Inability: Before and After the Twenty-Fifth Amendment." Fordham Law Review, 79(3), 908-944. This article provides a historical perspective on presidential succession and the evolution leading to the Twenty-Fifth Amendment.
- Schuker, Daniel J. T. (2014). "Burden of Decision: Judging Presidential Disability Under the Twenty-Fifth Amendment." Politics and the Life Sciences, 33(2), 1-44. This article examines the challenges in assessing presidential disability and the constitutional mechanisms in place.
Academia
- Kalt, Brian C. (2012). "Of Death and Deadlocks: Section 4 of the Twentieth Amendment." Harvard Journal on Legislation, 54(1), 101-138. This paper discusses the ambiguities and potential applications of Section 4 of the Twenty-Fifth Amendment.
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Commissioner George Mentz JD MBA CILS CWM® is the first in the USA to rank as a Top 50 Influencer & Thought Leader in: Management, PM, HR, FinTech, Wealth Management, and B2B according to Onalytica.com and Thinkers360.com. George Mentz JD MBA CILS is a CWM Chartered Wealth Manager ®, global speaker - educator, tax-economist, international lawyer and CEO of the GAFM Global Academy of Finance & Management ®. The GAFM is a EU accredited graduate body that trains and certifies professionals in 150+ nations under standards of the: US Dept of Education, ACBSP, ISO 21001, ISO 991, ISO 29993, QAHE, ECLBS, and ISO 29990 standards. Mentz is also an award-winning author and award winning graduate law professor of wealth management of one of the top 30 ranked law schools in the USA.Mentzenborg is just a term of art to describe the theory and process by George Mentz JD MBA ChE. CWM is for Chartered Wealth Manager ® and ChE Chartered Economist ® is a credential for economics professionals.