Biden’s Judicial Appointments May Be Legally Invalid, Legal Experts Warn
Concerns regarding the legitimacy of judicial appointments made during the Biden administration have surfaced, causing significant debate among legal experts. These concerns hinge on federal statutes that dictate how Article III judges should be formally commissioned, raising the possibility that some appointments could be invalidated. If this assertion is proven true, it could alter the landscape of the judiciary and even call into question the legitimacy of appointments like that of Supreme Court Justice Ketanji Brown Jackson.
Legal scholars assert that the Biden administration may not have fully complied with the historical requirements for commissioning judges, which go back more than two hundred years. Central to this issue is whether the President physically signed the necessary commissions to finalize these appointments. If an autopen, operated by a staff member without proper authorization, was used instead, the validity of these appointments could come into question.
One tweet that gained considerable attention captured the potential fallout: “🚨 HUGE: President Trump may be angling to NULLIFY DEI judge appointments made by the Biden White House, as the Biden DID NOT sign their commissions as required by law… DEI Justice Ketanji Brown-Jackson could be in danger of losing her seat, for example.”
The legal foundation for these claims is rooted in the Judiciary Act of 1792, reflected in the current federal codes. As outlined in 28 U.S.C. § 172 and 5 U.S.C. § 2902, judicial commissions must be “signed by the President” and bear the Great Seal of the United States. This step historically solidifies a judge’s appointment, granting them the authority to exercise their judicial powers.
One former federal attorney commented on the implications of this situation: “This is not a mere formality. If a judge has never properly received a commission under law, there’s a real question whether they were actually appointed in the legal sense. That could invalidate their rulings.”
The issue revolves around the use of the autopen—a mechanical device that replicates a person’s signature. While its use is not unprecedented, applying it to judicial commissions raises significant legal challenges, particularly if done without clear, traceable authorization from the President. As another constitutional law expert explained, “There’s a clear distinction between the President directing that a document be signed in his stead and a staffer simply choosing to send the commission out under an autopen.” This difference could determine whether the appointments are deemed legitimate.
Insiders speculate that if former President Trump returns to office in 2025, he may leverage this argument to contest numerous judicial appointments made under Biden. Advisors close to Trump are reportedly considering ways to declare these appointments null and void, potentially removing those judges from their positions.
This strategy would be grounded in case law and constitutional interpretation that emphasize the significance of the commissioning process. In the notable case of Marbury v. Madison (1803), the Supreme Court ruled that a commission signed by the President and marked with the Great Seal constitutes an official appointment, regardless of Senate confirmation. The absence of such a signature rendered the appointment incomplete.
The implications extend beyond just high-profile cases. Should these allegations prove true, they could impact dozens or even hundreds of federal judges appointed by the Biden administration, including those whose decisions have influenced key national policy areas such as immigration, voting laws, and gender issues.
Critics of these judges assert that many have overstepped their authority, imposing rulings that effectively amount to legislative decisions. Their decisions are said to have hindered state laws and upheld policies deemed questionable by some legal analysts.
Systemic Impact and Policy Ramifications
The prospect of nullifying these judicial appointments, particularly in a retroactive manner, would be extraordinary. Nonetheless, it is rooted in statutory law and the doctrine of executive authority that necessitate adherence to the Appointments Clause in Article II, Section 2 of the Constitution. This clause grants the President the sole power to nominate and, with Senate approval, appoint federal judges.
Legal experts emphasize that unless the President personally approves the signing of commissions—either directly or through unambiguous written consent—the autopen may not fulfill the legal requirement. They argue that any vague or retrospective assertions of approval would likely falter under judicial review.
The real-world consequences of such legal disputes could be vast. Cases already adjudicated could see their decisions called into question, ongoing criminal proceedings might be reopened, and various regulatory measures enacted under Biden’s administration could lose their legal grounding. Litigation challenging the authority of judges could erupt, driven by litigants emboldened by the emerging possibility that their judges lacked lawful authority.
Justice Ketanji Brown Jackson’s position, confirmed to the Supreme Court in 2022, is particularly at risk if it turns out the necessary commission was not duly signed. The ramifications of a tainted Supreme Court seat are immense, with potential repercussions on current and future case rulings. According to one insider, “You can’t sit on the nation’s highest court without ironclad legality behind your appointment.”
Legal Precedent and Next Steps
While discussions surrounding the autopen have arisen in the past, few instances have tested its application in the context of judicial appointments. In 2011, President Obama used an autopen while overseas to sign legislation extending parts of the Patriot Act. Although some lawmakers questioned its legality at the time, the issue did not escalate to the courts. In contrast, the Bush administration adopted a more cautious stance, opting against the autopen for constitutional actions unless explicitly cleared and confirmed by legal counsel.
If evidence reveals that President Biden’s judicial commissions were signed with an autopen without proper authorization, challenges are likely to arise, particularly from Trump-aligned legal representatives in federal court. Such a situation could lead to a court ruling on its own constitutionality—an unprecedented constitutional crisis reminiscent of the New Deal era.
As one federal lawyer stated, “It sounds arcane, but it’s about the rule of law. The same government that prosecutes people on technicalities must follow its own procedures to the letter. Judicial appointments aren’t rubber stamps—they’re supposed to be airtight.”
As the months unfold, the legal standing of dozens of judges appointed under Biden’s administration may hang in the balance. How courts interpret the relevant statutes and the nature of the evidence could trigger one of the most significant judicial resets in American history.
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