Progressives claim Trump acted “unconstitutionally” with Arpaio’s pardon, while excoriating him for reversing Obama’s unconstitutional DACA program.
You can imagine then, how thrilled they were when Project Democracy (which seems more involved in law-fare than actual democracy, you know, where the people have a voice) argued that President Trump acted unconstitutionally:
While the Constitution’s pardon power is broad, it is not unlimited. Like all provisions of the original Constitution of 1787, it is limited by later-enacted amendments, starting with the Bill of Rights. For example, were a president to announce that he planned to pardon all white defendants convicted of a certain crime but not all black defendants, that would conflict with the Fourteenth Amendment’s Equal Protection Clause.
Similarly, issuance of a pardon that violates the Fifth Amendment’s Due Process Clause is also suspect. Under the Due Process Clause, no one in the United States (citizen or otherwise) may “be deprived of life, liberty, or property, without due process of law.” But for due process and judicial review to function, courts must be able to restrain government officials. Due process requires that, when a government official is found by a court to be violating individuals’ constitutional rights, the court can issue effective relief (such as an injunction) ordering the official to cease this unconstitutional conduct. And for an injunction to be effective, there must be a penalty for violation of the injunction—principally, contempt of court.
Strip away the legalese, and they’re arguing that, because Arpaio himself violated people’s constitutional rights (which assumes that people in this country illegally are entitled to constitutional benefits), the President cannot pardon him. Doing so is unconstitutional as to all those other people Arpaio harmed in the past.
The Leftist lawyers on my Facebook page (which means all of my classmates, notwithstanding the fact that we attended a Red State law school) are very excited about this argument. Here are a couple of their comments, slightly edited to protect their privacy:
I think Project Democracy must be right, because if they’re wrong, there’s no check on the executive branch’s ability to violate the Constitution.
The President’s pardon power cannot exceed the judiciary’s contempt power. Otherwise, the President, by pardoning someone who violates a court order, interferes with the powers of a co-equal branch.
Please note the obsession with the Constitution and the fear lest the executive might be pressing his authority too far under that Constitution. Despite their efforts to appear as if they actually know and appreciate the law, they are ignoring completely the breadth of the presidential pardon. Per Article II, Section 2, Clause 1, “The President…shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” As the Heritage Foundation (no slacker when it comes to constitutional law) explains,
The power to pardon is one of the least limited powers granted to the President in the Constitution. The only limits mentioned in the Constitution are that pardons are limited to offenses against the United States (i.e., not civil or state cases), and that they cannot affect an impeachment process. A reprieve is the commutation or lessening of a sentence already imposed; it does not affect the legal guilt of a person. A pardon, however, completely wipes out the legal effects of a conviction. A pardon can be issued from the time an offense is committed, and can even be issued after the full sentence has been served. It cannot, however, be granted before an offense has been committed, which would give the President the power to waive the laws.
The only limit on the president’s pardoning power is impeachment. That’s why rotten egg presidents tend to do offensive pardons or reprieves — e.g., Marc Rich, Bradley Manning (scourge of Twitter emojis), or Oscar López Rivera — as they’re leaving office, when it’s not worth Congress’s efforts to impeach them. [Read more…]