Malcolm Rivera
The US Constitution grants the President the authority to grant Reprieves and Pardons for Offenses against the United States. This power, known as the pardon power, is derived from Article II, Section 2 of the Constitution, which establishes the President's authority to grant clemency. The pardon power has its roots in early English law, where the monarch held the royal prerogative of mercy to provide alternatives to death sentences. While the US Constitution grants the President broad authority, it is not without limits. The power is intended to serve the public interest and is subject to constitutional constraints, such as the restriction on pardoning in cases of impeachment.
| Characteristics | Values |
|---|---|
| Authority | The President is the only one with authority to use the clemency power according to Article II, Section 2, Clause 1 of the Constitution. |
| History | The concept of governments having the authority to provide relief from criminal punishment has historical roots in ancient Jewish, Greek, and Roman legal principles and practices. The US Constitution's pardon power originated from longstanding English tradition, which permitted the monarch to exercise the "royal prerogative of mercy". |
| Limitations | There are three important limitations: a crime must have been committed for a pardon to be issued, the power is limited to federal crimes, and the president may not issue pardons in cases of impeachment. |
| Purpose | The pardon power is intended as a tool for justice and mercy (an "act of grace") and to further "the public welfare". |
| Controversy | Presidential pardons can generate controversy, and certain types of pardons violate core constitutional provisions and principles. |
| Abuse of power | Trump has been accused of twisting the power for self-dealing, and there is debate over whether a president can pardon themselves. |
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What You'll Learn
The President's authority to pardon
The pardon power has its roots in early English law, specifically the "prerogative of mercy" which permitted the monarch to withdraw or provide alternatives to death sentences. The framers of the US Constitution were influenced by this practice, and it was first used by King Ine of Wessex in the 7th century. The power was restricted by Parliament in the 18th century, but it persisted in the American colonies.
The President's pardon power is broad but not limitless, and it is subject to constitutional constraints. It applies only to federal criminal offences, and the President may not pardon in cases of impeachment. A pardon is not an indication of innocence, but it can restore certain rights and lessen the stigma of conviction. It can also remove civil disabilities, such as restrictions on the right to vote or hold office, imposed because of the conviction.
The pardon power is intended to serve the public interest and welfare, and it cannot be used for self-dealing or self-protection. It is an expression of the President's forgiveness and can be granted when the applicant accepts responsibility for their crime and demonstrates good conduct.
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Historical roots and influences
The pardon power of the President of the United States has its roots in early English law, specifically the "prerogative of mercy", which permitted the monarch to withdraw or provide alternatives to death sentences. This power was first exercised by King Ine of Wessex in the 7th century and was later declared an exclusive right of the Crown during the reign of King Henry VIII in the 16th century.
By the 18th century, the power had been restricted by parliament to address potential abuses, but it retained its broad application, including in the American colonies. The framers of the U.S. Constitution were directly influenced by this English practice and included the pardon power in Article II, Section 2, which vests the President with the authority to "grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment".
The pardon power in the U.S. Constitution was intended as a tool for justice and mercy, or an "act of grace", to further "the public welfare". The power is considered broad but limited, and while it has been interpreted as plenary by the Supreme Court, it is not without constraints. The Pardon Clause makes explicit that pardons may only extend to "Offenses against the United States", meaning state criminal offenses and civil liability are not pardonable.
The first presidential pardon was issued by George Washington in 1795 after the Whiskey Rebellion in western Pennsylvania, and throughout history, other presidents have also exercised their pardon power, including Thomas Jefferson, Abraham Lincoln, and Andrew Johnson, whose pardon of Jefferson Davis, the former president of the Confederacy, was particularly controversial.
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Limitations and constraints
The pardon power of the President of the United States is subject to several limitations and constraints. While the President holds the authority to grant reprieves and pardons for offences against the United States, this power is not unlimited and is constrained by the Constitution.
Firstly, the pardon power does not extend to cases of impeachment. The President cannot pardon themselves or use the power for self-protection, as this would violate the due process principle and place them above the law. This principle, articulated by James Madison, states that "no man is allowed to be a judge in his own case, because his interest would certainly bias his judgment".
Secondly, the pardon power cannot be used to violate criminal laws or license future lawbreaking. For example, pardons that obstruct justice or constitute bribery are prohibited. The power is intended to serve the public interest and justice, not for self-dealing or political gain.
Thirdly, the pardon power is limited to offences against the United States, excluding state criminal offences and civil liability.
Additionally, while the President holds the authority to grant pardons, Congress has constitutional tools to exercise oversight and check the power. Federal courts can also adjudicate disputes over the constitutionality of a pardon, and members of Congress and executive branch attorneys have a duty to uphold the Constitution and prevent abuses of power.
In conclusion, while the presidential pardon power is broad, it is subject to constitutional limitations and constraints from all branches of the government. These limitations aim to prevent abuses of power and ensure that the power is exercised in the public interest and within the boundaries of the law.
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Congress and the courts
The pardon power of the President is established in Article II, Section 2 of the US Constitution, which states that the President has the authority to "grant Reprieves and Pardons for Offences against the United States". The pardon power is a form of executive clemency, which allows the President to grant leniency and relief from criminal punishment to those who have committed federal crimes.
While the President has broad pardon powers, there are limitations set by Congress and the courts. One key limitation is that the President's pardon power does not extend to cases of impeachment. This restriction is explicitly stated in Article II, Section 2 of the Constitution and has been affirmed by the Supreme Court. For example, in Ex parte Grossman (1925), the Court suggested that an attempt by the President to deprive a court of its power to enforce its orders through successive pardons could be grounds for impeachment.
Additionally, the Supreme Court has interpreted the pardon power as "plenary", meaning it is generally not subject to congressional modification. In Ex parte Garland (1866) and United States v. Klein (1871), the Court ruled that legislation could not restrict the President's pardon power. However, Congress does have oversight powers and other constitutional tools that it can use in relation to the President's pardon authority. For instance, Congress can pass acts of general amnesty, as noted in Brown v. Walker (1896).
The courts have also placed limitations on the scope of the pardon power. In Ex parte Grossman, the Court held that the President may pardon criminal but not civil contempts of a federal court. Supreme Court Justice Joseph Story argued that contempt of Congress is implicitly excluded from the pardon power, as it would make Congress dependent on the President's goodwill. While there has been at least one instance of a pardon for contempt of Congress, granted by President Franklin D. Roosevelt, it went unchallenged in court.
The pardon power is intended to serve the public interest and further "the public welfare". While it is a robust power, it is not limitless and is subject to constitutional constraints. The power is meant to be an act of grace and justice, ensuring that individuals have access to clemency when warranted.
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Self-pardon considerations
The US Constitution grants the President the authority to grant clemency, including pardons, under Article II, Section 2, Clause 1. This power is considered "plenary", meaning it is generally not restricted or modified by Congress or the judiciary. While the pardon power is broad, it is not limitless and is subject to constitutional constraints.
The question of whether a President can pardon themselves is an unresolved legal question with no judicial precedent. The Office of Legal Counsel (OLC) opined that a President may not pardon themselves based on the principle that no one may be a judge in their own case. However, the OLC also suggested a theoretical approach that could potentially circumvent this limitation: the President could temporarily step down from their duties, allowing the Vice President to become Acting President and issue the pardon, after which the pardoned President could resume their duties or resign.
Some early Supreme Court language suggested that Congress may have the power to grant pardons or amnesties through legislation. However, the continued vitality of this authority is unclear. Congress does possess constitutional tools that it can use in relation to the President's pardon authority, provided the legal conditions are met, such as oversight.
The pardon power is intended to serve the public interest and further "the public welfare". Pardons that are motivated by self-dealing, self-protection, or other bad faith reasons would violate the President's duty to faithfully execute the law as prescribed by the Constitution's Take Care Clause and Oath Clause. They would also contravene the due process principle that "no man is allowed to be a judge in his own case" and the central constitutional principle that the President is subject to the law and not above it.
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Frequently asked questions
The President of the United States is the only one with the authority to grant pardons, according to Article II, Section 2 of the Constitution.
The concept of governments having the authority to provide relief from criminal punishment has its roots in ancient Jewish, Greek, and Roman legal principles and practices. The US Constitution's pardon power specifically originated from English tradition, which permitted the monarch to exercise the "royal prerogative of mercy" to withdraw or provide alternatives to death sentences.
There are three main limitations to the pardon power: a crime must have been committed for a pardon to be issued, the power is limited to federal crimes, and the president may not issue pardons in cases of impeachment.
Although unusual, there have been cases where people who have not been charged with a crime have been pardoned.
