Guest Post: On Pardons

Finally, we present the third winner of our Blog-a-Fault-Line Contest, Gabriel Quiroga. His teacher is Aaron Hull. 

According to Professor Andrew Rudalevige of Bowdoin University, the Founders gave the President the power to “grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” They did this so that the executive branch had a check against the judiciary, in case it “produced a judicial miscarriage…[or] as a policy instrument…[and] the offer of clemency might restore tranquility to the Commonwealth” if there had been a rebellion or insurgency. The Founders gave the executive the power to reprieve and pardon as a political tool, for example to reconcile the nation. However, such a power is difficult to check even if it is rooted in sound political logic and strong moral grounds.

In the instance of former presidents Gerald Ford and Richard Nixon, President Ford had exercised his power to pardon in order to “heal” the nation, one of the reasons Alexander Hamilton defended giving the president such a broad power. Also, the power to pardon includes the ability to commute sentences, which is a “soft” use of the power, and shows that this executive right can have multiple manifestations which are not always extreme. For example, Barack Obama pardoned 212 people in his term, but commuted the sentences of 1,700 people, while George W. Bush pardoned 189 people and commuted only 11 terms. Such different uses of the same power also shows how difficult it would be to attempt to limit or refine the definition of this power.

PardonsPicThe president should obviously not be able to grant pardons to himself, as that would constitute a severe breach of power, and the Department of Justice is correct in asserting that “no man can be the judge of his own case.” Due to the Constitution’s lack of flexibility and the obstacles to making an amendment which could rewrite and specify this power and its uses, it would be a poor proposal to state that writing an amendment is the correct path. However, one needs only to look at the most effective tool in limiting power in the US government, checks and balances, to find the most effective way of limiting the power of presidential pardons. A strong check would be to let Congress decide if a particular instance of pardoning by the president is worthy of impeachment. After all, the entire government is based on the system of checks and balances, and the Founders would not have included such a power in the Constitution, especially for the executive, if they deemed that it could not be controlled.

This process would also allow for the gradual limitation or refinement of the power on a case-by-case basis, which means that the chances of a constitutional crisis would be significantly lowered. This system would also follow the principle of legislative supremacy and the belief that the president should heed, to a certain extent, the will of the people. The only disadvantage to this proposal is time, and were a president to abuse this power very soon without any control, there may be a chance that Congress and the people would feel like their hands are forced. This would most likely precipitate a constitutional crisis, or more optimistically a quick and urgent implementation of a new legislative check on the executive.

ConGabrielQuiroga 

Gabriel Quiroga attends Greenwich High School in Greenwich, CT.

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