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The possible use of an autopen is a controversial topic that U.S. President Donald Trump has recently brought up again with respect to U.S. President Joe Biden's pardons.

What formal requirements are there, if any, for a presidential order? As an example, let's consider a presidential pardon. Does it need to be written? Signed? Personally signed? The latter requirement would indeed render autopen-signed orders invalid.

And would it change anything if the person having been president at the time of the order declared that they indeed gave that order?

Peter - Reinstate Monica
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3 Answers3

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According to George W. Bush's Office of Legal Counsel, Valid

Per the Office of Legal Counsel, July 7, 2005

MEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT You have asked whether, having decided to approve a bill, the President may sign it, within the meaning of Article I, Section 7 of the Constitution, by directing a subordinate to affix the President’s signature to it, for example by autopen.This memorandum confirms and elaborates upon our earlier advice that the President may sign a bill in this manner. See Memorandum for Alberto R. Gonzales, Counsel to the President, from M. Edward Whelan III, Principal Deputy Assistant Attorney General, Office of Legal Counsel, Re: Signing of H.J. Res. 124 (Nov. 22, 2002) (“Whelan Memorandum”). We emphasize that we are not suggesting that the President may delegate the decision to approve and sign a bill, only that, having made this decision, he may direct a subordinate to affix the President’s signature to the bill.

Our analysis proceeds as follows: In Part I, we examine the legal understanding of the word “sign” at the time the Constitution was drafted and ratified and during the early years of the Republic.We find that, pursuant to this understanding, a person may sign a document by directing that his signature be affixed to it by another. We then review opinions of the Attorney General and the Department of Justice and find the same understanding reflected in opinions addressing statutory signing requirements in a variety of contexts.Reading the constitutional text in light of this established legal understanding, we conclude that the President need not personally perform the physical act of affixing his signature to a bill to sign it within the meaning of Article I, Section 7.In Part II, we consider the settled interpretation of the related provisions of the same section of the Constitution that require that bills be presented to the President and that the President return to Congress bills he disapproves, and find that this interpretation confirms our view of Article I, Section 7’s signing requirement. In Part III, we consider practice and precedent relating to the constitutional signing requirement and show that they do not foreclose our conclusion.

WPNSGuy
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NPR quotes Jay Wexler, a professor of constitutional law at Boston University School of Law:

Importantly, he says, there is nothing in the Constitution that requires pardons be in writing at all.

That should settle it.

Peter - Reinstate Monica
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An additional instrument at one time used to enable validation for Decrees of Law and Official Communication was by use of a Wax Seal, or Signate Ring used by Kings and Dignitaries. Being one-of-a-kind and unchanging meant it was much more difficult to forge than just an ordinary signature by hand which can (and will) have slight variations each time it's performed, yet be considered valid. But that's not true with a Wax Seal, Notarization Seal, or Autopen. These don't change like a signature, and are thus more readily validated.

Daniel Smith
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