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Notes -
"I am hereby cancelling all Executive Orders, and anything else that was not directly signed by Crooked Joe Biden, because the people who operated the Autopen did so illegally."
So this feels like a bit of an escalation to me. My attempt at an analysis, from someone who is not American:
Overall, I feel like this is kind of a misplay from Trump - I think that it guarantees that the next Democrat administration will do the same to his executive orders and pardons. I worry that this will lead to each administration basically cancelling everything that the previous one did, which I worry will lead to more power being entrenched in the permanent bureaucracy (as the administration's actions will all be seen to be impermanent, so the bureaucracy will just ignore orders they don't like). Some will argue that is the current state of affairs, and I don't necessarily disagree; the worry is that it would prevent another Trump-like figure from actually making changes.
I also think that this is one of those actions that does lend a bit of credence to the accusations that Trump is acting like a fascist. To be absolutely clear: I think there is no actual informational value in almost all accusations against Trump of any sort; I think that almost everyone who accuses him of anything has started from the position of "Trump bad" and used that to justify any and all accusations against him. That being said - this feels like the sort of action that will kick off another escalation cycle. One thing that I've noticed about a lot of US political escalations is that they often start with an action that is fully legal, but against form; the other party then does something that is mostly-legal, which the first party then uses to claim that the first party has completely abandoned the rule of law. I am right-wing biased (I lean libertarian, but that's a "more libertarian than we are now", as opposed to an "absolute libertarian") - but even with that, I can't think of an equivalent on the left to this.
So, for the American commentators - should I be concerned about this? Is this just Trump saying shit, is there a left wing equivalent I missed, is there some form of precedent that excuses it? Did I miss something major in my interpretation of it? Is this just not a big deal at all?
Trump's been saying some variant of this for a while now. I think it's mostly just blather, because he hasn't moved to prosecute anyone covered by autopen pardons. Most executive orders are cancellable by the executive anyway; while IIRC there have been a few cases where courts have found one administration (Trump's) can't cancel a previous administration's orders, I expect any such cases still in question to be overturned. What can't be overturned are pardons and signatures on legislation, and as far as I know Trump has made no attempt to bypass any particular one of those, though he's claimed on social media that they are invalid.
As for what he's saying, it's certainly true that if Biden didn't give the order, an autopen signature is invalid. It's a forgery. And no, having Biden stating they were done on his order now doesn't cure the issue; he would have had to have said so during his term.
Pretty much agreed. He always had the power to cancel executive orders, rhetoric aside. Canceling pardons is another matter.
Agreed that if someone used Biden's autopen without his knowledge or consent, that would be invalid. The issue is burden of proof. I would imagine that if Trump actually tried to challenge it, it would be assumed Biden signed it unless Trump has proof to the contrary. That strikes me as consistent with the Supreme Court's ruling of absolute immunity for core Presidential acts and privileged communications.
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I believe most of these have been APA related: you can't cancel them arbitrarily or capriciously, and there are required notice and comment periods before enacting (some) changes. Of course, then there was the DACA case where apparently the APA comment period was required to cancel something that never had such a period to enact --- we were close to dueling federal (nationwide) injunctions demanding "X" and "not X" in ways that are probably very related to the SCOTUS decision to limit nationwide injunctions.
I'm not sure offhand if it's strictly covered, but as a thought experiment it'd be interesting to see if the APA were to allow, say, changing the comment period: "whoops, the next administration needs to wait 4 years to enact policy changes, conveniently including changing the comment period back." Or the rules as passed by Congress aren't constitutional, I suppose. I wouldn't endorse such a wrench in the works, but I won't be surprised if it gets tried.
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Sorry, can you explain more about this? I thought that the issue at hand was that we didn't know whether Biden had approved the autopen usage, whether his staff had used it and he had later approved it, or whether his staff had used it without his knowledge? I would've thought that he could say now "Oh yeah, I had definitely approved that" and then it counts as approved (as we can't really tell the difference between him approving before or after).
The rest of what you said makes sense to me - so even though he claims the executive orders are invalid, it doesn't actually matter because in all likelihood he can just cancel them anyways using his current presidential authority.
I think Nyb is talking about cases where it could be clearly demonstrated that the President was not involved in the approval process. Later saying he would have approved it anyways wouldn't cure that.
Are there any cases where this has been established beyond reasonable doubt?
I would consider even a short verbal exchange ("Mr President, we have another ten pardons ... " -- "Just sign the damn things!") to be sufficient that the president had granted approval.
So the only cases where the non-involvement of the president could be established beyond reasonable doubt would be either with a staffer confessing or them bragging in writing about being able to bypass Biden.
Given Trump's history of outrageous claims on little to no evidence going back to Birtherism, I would be very surprised if he had any evidence which would convince a jury, rather than just blabbering.
Perhaps not, but you are the one bringing up the context of a criminal trial, which does not otherwise seem relevant.
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How about Biden at the time asserting he didn't sign an executive order.
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Thank you, that clears things up - I didn't realize there were any such cases.
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