Thursday, July 19, 2007

Unconstitutional Pardons

During the discussion of the commutation of Scooter Libby's sentence, one of the Republican talking points was that the pardon power (and implicitly, the power to commute sentences) is constitutionally committed to the President. That's right as far as it goes. Neither Congress nor the courts can reverse the President's decision to pardon someone (or, presumably to commute his sentence). See United States v. Klein. However, it doesn't follow that the President can pardon anyone he wants for any reason.

Suppose, for example, that the President decided to pardon all self-declared born-again Christians (but no one else) doing federal time for white-collar crimes. Surely that would violate the Establishment Clause. Likewise, a decision to pardon women (but only women) doing time for bank robbery would clearly violate the equal protection component of the Fifth Amendment's Due Process Clause.

There might be no remedy for these constitutional violations, short of impeachment, but then again there might be. In my first example, imagine that a non-born-again-Christian brought a habeas petition, alleging that his continued detention violates the Establishment Clause. If the judge agrees, Klein and the unreviewability of the pardon power would prevent him from ordering that the born-again criminals be re-imprisoned, but ordering the petitioner released would not interfere with the pardon power.

So, is it a constitutional violation to pardon high-ranking executive officials as a means of obstructing an investigation into potentially criminal wrongdoing in the executive branch? And if so, might Andy Borowitz have been inadvertently onto something when he jokingly suggested that thousands of people might be able to take advantage of Scooter's deal?

The answer to that second question is almost certainly "no," but NOT because, as Bush apologists claim, there was nothing constitutionally suspect about Bush's highly selective empathy for Libby. The fact that discretion is unreviewable does not render proper every exercise of that unreviewable discretion.


Tam said...

Would a federal criminal statute that specifically exempted Scooter Libby be Constitutional? e.g.,

"It shall be a federal crime for any individual, except Scooter Libby, to do X."

If such a statute would be unconstitutional, the pardon power would still have to be upheld despite its functional equivalence to such a law, because the power is expressly granted by the Constitution. Can the same argument be applied to the situations you cite, so as to resolve the inconsistency in favor of the pardon power?

If such a statute wouldn't be unconstitutional, then nevermind.

Michael C. Dorf said...

i think that's probably okay, given the history of "special bills." (See INS v. Chadha, as well as the controversy over the Terri Schiavo law for a discussion.) The Bill of Attainder Clause can be read to contain a negative pregnant: special laws that benefit rather than burden individuals are okay.

Ubertrout said...

Regarding your assertion that a pardon could violate the establishment clause or due process clause, what authory/reason do you have for thinking that? It's not at all clear to me - in fact, it seems incorrect.

Ramiro said...

The argentgine Supreme Court actually declared last friday that some presidential pardons given in the 1990's to several former military officers that were involved in the "Dirty War" in the 1970's were unconstitutional.

This is possible because, altough as in the US the pardon authority of the president is discretional, he can't (at least in theory) act in an arbitrary or unreasonable manner. It's a vague parameter for judicial review, but it has work well here, probablly because of judicial restraint. Anyway, that restriction on discretion (both appliable for the President AND Congress) comes from a widely accepted interpretation ofthe Argentine Constitution. So this criteria would apply to Michel's example.

Anyway, the Court decision declaring those 1990's pardons unconstitutional stated that the president can't pardon crimes against humanity because international human rights treaties mandate the Argentine Government to investigate and eliminate any legal restriction that stands in the way of a proper investigation and punishment of crimes against humanity, as defined in international treaties. That's why amnisty laws has been declared unconstitutional too.

Just thought it might be interesting to bring some "comparative constitutional law" in prespective. Greetings.

Michael C. Dorf said...

In response to "ubertrout": my point is that there couldn't possibly be any judicial authority for the proposition that the pardon power is used unconstitutionally, because its use is committed to the Prez. BUT, the fact that a power is committed to one constitutional actor does not mean that that actor is not bound by the Constitution. Consider the power to try impeachments, which is committed to the Senate. (See United States v. Nixon). Do you think, Ubertrout, that the Senate could, consistent with the Constitution, decide that it's only going to remove from office impeached non-Christians? Or impeached African-Americans? The commitment of an issue to one actor resolves separation of powers objections. It does not eliminate other, "external" constraints on that actor's use of the power---even if it makes them unreviewable.

Benjam said...

i have to agree with ubertrout. The establishment clause says that "Congresss shall make no LAW respecting an establishment of religion." That seems to apply to laws (not pardons) and to congress (not the president). Your other analogy is equal protection, which also refers to "equal protection of the LAWS."

what if the president vetoed every law intended to benefit african-americans and vetoed no others? could the supreme court strike down a veto on those grounds?

i dont see any power for the court to review a veto or a pardon EXCEPT based on procedural grounds. very interesting topic.

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