Last week, the Senate Judiciary Committee held a hearing on the Biden administration’s last-minute pardons, many of which appear to have been signed by autopen. Although autopens are used regularly by politicians for all sorts of reasons, the pardons raise profound constitutional questions because of lingering concerns about Biden’s competency. The issue most commonly discussed is whether he understood what was being done in his name. But there is an even more fundamental question about delegation: When the Constitution says that the president “shall have Power to grant … Pardons for Offenses against the United States,” does it require the president himself to make the decision? Or can he leave it to others?

The pardon power developed for centuries among the English, prompting Chief Justice John Marshall to observe in 1833 that we must “adopt their principles respecting the operation and effect of a pardon.” Most central of those principles was that the pardon power was an absolute prerogative, meaning it was a power so personal to the monarch that it couldn’t be delegated.

This personal character of the prerogative was recognized by the English judges in a 1604 resolution on dispensations. A dispensation and a pardon were so closely related that they were often considered variations of the same power. Whereas the one was a retrospective exercise of mercy, the other was a prospective exercise of mercy—the key point being that they both were non obstante grants, meaning grants made notwithstanding the law.

Although the prerogative to pardon offenses or dispense with the law was personal in the monarch, Queen Elizabeth, in her desperation to raise money, she sold part of it—to be precise, she sold the power to dispense with a penal statute. The purchasers could determine who would get a dispensation, and the Lord Chancellor, or Keeper of the Great Seal, would then issue a dispensation as directed. This privatization, however, impinged on the personal authority of the monarch, so, in 1604, the judges were asked to consider the grant’s validity.

The judges unanimously resolved that the grant was “utterly against law.” The dispensing power involved a “confidence and trust” that was “inseparably joined and annexed to the royal person of the king in so high a point of sovereignty.” So “the king cannot commit the sword of his justice, or the oil of his mercy, concerning any penal statute to any subject,” and that these powers “cannot by law be transferred.”

Chief Justice Edward Coke similarly explained that “the royal power to pardon treasons, murders, rapes, &c. is a prerogative incident solely and inseparably to the person of the King.” At the end of the century, Chief Justice Holt said: “The power of pardoning all offences is an inseparable incident to the crown and its royal power.”

Of course, the king, like a president today, did not personally draft pardons; consequently, there was ample room for deception. In response, medieval statutes and common law doctrine sought to ensure that the king himself made the decision and did so without being misled. As summarized by the leading eighteenth-century law dictionary, a statute of Edward III required that “the king should be fully inform’d before he pardon’d any felony” so that “he himself might be apprised of the matter.” Although the statute already was defunct, it was a reminder that the decision belonged to the king alone.

Can a pardon made by the wrong person be held void in the United States? A powerful hint comes from the 1782 Virginia case of Commonwealth v. Caton et al. Although the three defendants had briefly joined the British and had therefore been convicted of treason, the House of Delegates pardoned them.

The Virginia Constitution permitted a statute to locate the pardon power in the House of Delegates—this already being a hint that when a constitution permitted a transfer of the power, it said as much. The problem for the defendants was that the Treason Act, under which they were convicted, provided for a pardon only by both legislative houses. Although the House pardoned the three traitors, the Senate concluded that, under the Constitution, it shouldn’t add its approval. The high sheriff in Richmond therefore, found himself in a quandary. He had a court rule ordering him to execute the prisoner and a pardon resolution from only the House.

When the case eventually reached the Court of Appeals, Attorney General Edmund Randolph dramatically abandoned his prosecutorial posture to support the claim of the prisoners that the treason statute was unconstitutional for transferring the pardon power to both legislative houses. Believing that “my office does not extinguish that respect, which I shall owe to the constitution,” Randolph declared “that every law against the constitution may be declared void.”

The court ultimately upheld the statute, apparently on the theory that the Constitution merely set a minimum level of legislative approval, without barring a statute from setting a high level. The Court’s President, Edmund Pendleton, emphasized, however, that if the statute locating the pardon power in both houses had been “repugnant to the Constitution,” he would have held it void. It was a question “from which … I will not shrink, if ever it shall become my duty to decide it.” Any transfer of the pardon power was entirely justiciable.

The history confirms that the Constitution’s location of the pardon power is significant. The president must make the decisions, and the courts can hold pardons void if the decisions are made by others.