Isabella Carter
The U.S. Constitution grants the President the authority to grant reprieves and pardons for offenses against the United States, except in cases of impeachment. This power has been described as plenary, and thus generally cannot be restricted or modified by Congress. However, there have been instances where Congress has attempted to limit the President's pardon power, such as through funding positions in the Department of Justice to assist in considering clemency petitions. There have also been calls for a Constitutional amendment to clarify and limit the President's pardon power, including prohibiting self-pardons and pardons of family members and administration officials. The legal ability of a President to pardon themselves remains an unresolved issue.
| Characteristics | Values |
|---|---|
| Can Congress amend the constitution for presidential pardons? | No, the power of the President to pardon is not subject to legislative control and cannot be modified, abridged, or diminished by Congress. |
| Can the President pardon himself or herself? | The legal and constitutional ability of a President to pardon himself or herself is an unresolved issue. |
| Can the President pardon members of their family? | Yes, but there have been amendments proposed to prohibit this. |
| Can the President pardon administration officials? | Yes, but there have been amendments proposed to prohibit this. |
| Can the President pardon campaign employees or advisors? | Yes, but there have been amendments proposed to prohibit this. |
| Can the President pardon in cases of impeachment? | No, this is an exception to the pardon power. |
| Can the President pardon in cases of contempt of Congress? | This is unclear, but there is at least one historical example of a pardon of contempt of Congress, granted by President Franklin D. Roosevelt, which apparently went unchallenged in court. |
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What You'll Learn
The US Constitution grants the President the power to pardon
While Congress generally cannot constrain the President's pardon authority, there is historical precedent for Congress facilitating the exercise of this power through funding positions in the Department of Justice to assist in considering clemency petitions. Additionally, Congress has proposed amendments to limit the President's pardon power, particularly in response to concerns about potential self-pardons and pardons granted to family members and close associates for personal gain.
The legal ability of a President to pardon themselves is an unresolved issue. Some legal scholars argue that self-pardons are precluded by the Impeachment Disqualification Clause or the requirement for the President to faithfully execute the laws. Others cite the fundamental rule that "no one may be a judge in his own case."
The Supreme Court has acknowledged the broad nature of the pardon power, but has also suggested that impeachment would be a remedy for abuse of this power. The Court has voided attempts by Congress to limit the effect of pardons, reaffirming that the power flows from the Constitution and cannot be modified by legislative enactments.
While the President's pardon power is extensive, it is not without limits. It is restricted to federal crimes and does not apply to state or civil wrongs. Additionally, the President cannot use pardons to deprive a court of its power to enforce orders, as this would suggest a resort to impeachment. The pardon power is a significant prerogative granted by the Constitution, but it is subject to ongoing scrutiny and interpretation by legal scholars and Congress.
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Congress cannot limit the President's pardon power
The President's pardon power is a near-blank check hidden among the Constitution's checks and balances. Despite concerns about possible abuses of power, the Supreme Court has held that Congress cannot limit the President's pardon power through legislation. This is because the power of the President to grant clemency is not subject to legislative control.
In Ex parte Garland, the Court affirmed that Congress cannot limit the effect of a pardon. Similarly, in Schick v. Reed, the Court reaffirmed that the power of clemency comes from the Constitution and cannot be modified or diminished by Congress.
The Constitution establishes the President's authority to grant clemency for offences against the United States, encompassing pardons and other forms of relief from criminal punishment. This authority, however, does not extend to state criminal offences or federal/state civil claims. Additionally, the President cannot use clemency in cases of impeachment.
While Congress generally cannot constrain the President's pardon power, there is historical precedent for Congress facilitating the exercise of this power through funding of positions to review clemency petitions. For example, the Act of March 3, 1865, authorized the Attorney General to employ a pardon clerk.
In conclusion, while the President's pardon power is extensive and not directly limited by Congress, there are constitutional boundaries, such as the types of offences and the exclusion of impeachment cases. The Supreme Court has consistently upheld the independence of the President's pardon power from legislative interference.
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Congress can play a role in facilitating the exercise of pardon power
The Supreme Court has held that the President's pardon power is not subject to legislative control by Congress. Congress can neither limit the effect of a pardon nor exclude any class of offenders from its exercise. However, Congress may play a role in facilitating the exercise of pardon power through other legal and constitutional processes.
Historically, Congress has facilitated the exercise of pardon power by funding positions in the Department of Justice to assist in considering clemency petitions. For example, the Act of March 3, 1865, authorised the Attorney General to employ and provide salaries for pardon clerks. This act demonstrates how Congress can support the administrative aspects of the pardon process without directly controlling it.
In addition to legislation, Congress has invoked its Article I authority to conduct oversight as an indirect constraint on the use of pardon power. For instance, in the case of the pardon of Richard M. Nixon, Congress exercised its oversight power by holding hearings and requesting information from the Executive Branch regarding the pardon decision. While the Department of Justice maintained that compliance with these requests was voluntary, it demonstrates Congress's ability to influence and scrutinise pardon decisions.
Furthermore, Congress has the power to propose constitutional amendments that could clarify and limit the President's pardon power. For example, proposals have been made to prohibit self-pardons and pardons of family members, administration officials, and campaign employees. By introducing such amendments, Congress can shape the boundaries of pardon power and ensure it is not misused.
Finally, while rare, Congress may have the authority to grant pardons or amnesties through legislation. In Brown v. Walker (1896), the Supreme Court suggested that Congress has the power to pass acts of general amnesty. However, the validity of this interpretation has been disputed, and the Court has not revisited this suggestion.
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Presidential self-pardoning is an unresolved issue
During the Watergate scandal, Nixon's lawyer suggested that a self-pardon would be legal. However, the Office of Legal Counsel (OLC) issued an opinion concluding that a President cannot pardon themselves under the fundamental rule that "no one may be a judge in his own case". This opinion was reiterated in a 1974 memo during the Nixon Administration and again in 2021 by the Department of Justice.
Despite this, there is still debate about whether a court would issue a definitive ruling on the lawfulness of a self-pardon due to practical considerations and separation-of-powers concerns. Some scholars argue that a court might view the constitutional validity of a presidential self-pardon as a nonjusticiable political question.
In 2025, Congressman Steve Cohen reintroduced an amendment to the Constitution to clarify and limit the President's pardon power, including prohibiting self-pardons. This proposal highlights the ongoing discussion and concern surrounding the issue of presidential self-pardoning.
While there is no clear consensus on the legality of presidential self-pardoning, it remains a complex and controversial topic that may require a constitutional amendment or a Supreme Court decision to resolve definitively.
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Pardons can be granted for presumptive cases
The U.S. Constitution, Article II, Section 2, Clause 1, grants the President the power to grant reprieves and pardons for offenses against the United States. This power is not restricted by any temporal constraints except that a crime must have been committed. The President may grant pardons on their own accord or in response to requests made through the U.S. Department of Justice's Office of the Pardon Attorney.
While Congress generally cannot constrain the President's pardon authority through legislation, there have been proposals to amend the Constitution to clarify and limit the President's pardon power. Congressman Steve Cohen has reintroduced an amendment to prohibit self-pardons and pardons of family members, administration officials, and campaign employees. It would also bar pardons for those whose crimes were committed to further the president's personal interests or in coordination with the president.
The Supreme Court has held that the power of the President to pardon is not subject to legislative control and flows from the Constitution alone. However, Congress may play a role in facilitating the exercise of pardon power through funding positions in the Department of Justice to assist in considering clemency petitions.
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Frequently asked questions
The pardon power is considered "plenary", meaning it generally cannot be restricted or modified by Congress. However, there is historical precedent for Congress facilitating the exercise of pardon power by funding positions in the Department of Justice to assist in considering clemency petitions.
The President has the power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment. The pardon power extends to cases involving courts-martial against members of the United States Armed Forces.
The legal and constitutional ability of a president to pardon himself or herself is an unresolved issue. While some argue that self-pardons are precluded by the Impeachment Disqualification Clause, others suggest it is not explicitly addressed in the Constitution.
