Jarrett Stepman is a columnist for The Daily Signal. He is also the author of “The War on History: The Conspiracy to Rewrite America’s Past.”

The Senate Judiciary Committee held a hearing recently to assess the mental fitness of former President Joe Biden when he was in office.

... The hearing, titled “Unfit to Serve: How the Biden Cover- Up Endangered America and Undermined the Constitution,” not only dug into the Biden administration’s use of an autopen device to sign documents but addressed questions about how to hold Biden’s administration and future administrations accountable when it appears the president isn’t in command of decision-making.

Few Democrats attended the hearing, as Sen. John Cornyn, R-Texas, noted.

Cornyn said in his opening statement that the executive branch provides many essential duties on behalf of the American people. He asked rhetorically, “What are we to do when the president is incapable of performing these duties?”

The recent book “Original Sin,” by journalists Jake Tapper and Alex Thompson, amounted to a “mea culpa” by the media, Cornyn said. But he said what happened was a “constitutional crisis” much bigger than the president and his media defenders.

“With a compromised president, our government’s very legitimacy and capacity to function was undermined,” Cornyn said. Cornyn said the hearing’s intent is to not let this failure be “swept under the rug,” and to get to the bottom of who was running the executive branch while Biden was unable to.

Sen. Eric Schmitt, R-Mo., who co-chaired the hearing, said in his opening statement that the American people deserve to know who was running the White House the last four years. He criticized Democrats on the committee for calling no witnesses for the hearing and “ignoring this issue like they ignored Biden’s decline.”

Schmitt said he was the first senator to call for invoking the 25th Amendment, a constitutional procedure to replace an incapacitated president, against Biden.

“Our nation was effectively without a leader,” he said. “The absence of a functioning president wasn’t an abstract issue; it inflicted severe consequences on our nation.”

The Missouri senator said, “The Democrat Party, the corporate media, the federal bureaucracy, and Big Tech companies collaborated to conceal the truth from the American people, not out of ignorance, but because it advanced their own interests.”

He said Biden’s condition made it easy for him to become a “puppet” for other powerful interests. Schmitt called Biden’s time in the White House the “autopen presidency.”

Sen. Peter Welch, D-Vt., one of the few Democrats to attend the hearing, said there was an ongoing constitutional crisis over Congress’ inability to make decisions on behalf of the American people.

Welch said the Senate in recent months has failed to discuss the mounting national debt, the potential for engaging in wars abroad, the executive branch’s use of impoundment to reduce federal spending, and climate change.

All that the Senate has debated is “nominations,” Welch said. He said debates about issues turn into “personal accusations of motivations, of cover-ups, of conspiracy, of bad character.” This means that debate over issues doesn’t happen, the Vermont senator said.

Congress’ Authority Over Reviewing Presidential Signature

John Harrison, a constitutional professor at the University of Virginia School of Law, addressed the issue of Biden said there is significant legal precedent that suggests the president can use an autopen or another person to sign documents on his behalf. Any person can use another method besides manual signature of a document “by indicating that the person signing the document has decided that person’s signature should be affixed to the document by some process other than a manual signature.”

Nevertheless, Harrison said Congress has the power to regularize the process by which the president affixes his signature to documents. That includes a situation where an individual records when the president has authorized the use of his signature.

“Making sure that the president really has made a decision and that it wasn’t someone else with the president’s autopen is a way to make sure that the power is properly exercised by the president,” Harrison said.

Theodore Wold, a visiting fellow for law and technology policy at The Heritage Foundation, said the use of a president’s signature to take official action is of monumental consequence.

Whether it be a presidential pardon or the signing of a law, “the president’s signature is itself the protection of democratic principle. When the president signs he communicates his assent and endorsement of the action he takes.”

Wold said it has been confi rmed Biden used the autopen on many occasions, from the beginning of his presidency– including for controversial pardons of his family members and others–yet there is no publicly available record of Biden approving these actions.

“The Biden White House’s widespread use of the autopen to affix Biden’s signature to documents that exercise power belonging solely to the president poses significant constitutional, legal, and practical considerations,” Wold said.

Sen. Ted Cruz, R-Texas, later said all of Biden’s orders after July 15, 2022, and nearly all of Biden’s executive orders were signed by autopen.

Cruz asked Wold whether an executive order signed by a staffer who autopen signs it without the president’s knowledge is legally binding.

“No,” Wold said.