Does Biden's use of an "autopen" to make judicial appointments comport with Federal statute?
The President, with approval from the Senate, has the authority under Article III of the United States Constitution to appoint Judicial Officers "for life." How this appointment is actually made official by a "seal" upon a "commission" is set forth in Title 5 United States Code section 2902, which reads in part:
(a) Except as provided by subsections (b) and (c) of this section, the Secretary of State shall make out and record, and affix the seal of the United States to, the commission of an officer appointed by the President. The seal of the United States may not be affixed to the commission before the commission has been signed by the President. (Emphasis added.)
Note that the subsequent subsections make no mention of an autopen or, for that matter, any digital signature. For example, section 2902(b) provides the seal may be affixed "before" the commision is signed by the President, once again requiring the President sign the commission. The question therefore becomes whether use of an autopen meets the required act, i.e., that the commission related to the appointment be "signed by the President."
Of course, the initial question is whether Biden's inner circle used an autopen for judicial appointments as those around him did in so many other contexts. However, if even one judicial appointment used an autopen, this becomes a potential appellate issue that may ultimately need to be decided by the United States Supreme Court.
