Pardon power is not absolute

You don’t need to be a specialist in constitutional law to feel deeply troubled by President Donald Trump’s pardon of Joe Arpaio, the former Arizona sheriff convicted of violating a federal court order directing his office to stop detaining immigrants and Latinos not suspected in crimes.

Mr. Trump’s first use of what’s known as Article II pardon power is chilling in its timing, coming as it does on the heels of his tacit encouragement of white supremacist violence and reports that special counsel Robert Mueller’s Russia investigation is closing in on the White House.

Also troubling are repeated media assertions that the president’s pardon power is affirmatively absolute.

It is not.

Such misinformation has far-reaching, dire consequences for American democracy — for us, for our children, for the future of our nation.

The United States is not careening toward a constitutional crisis; we are already knee-deep in one. It is vital that the public understand how the separation of powers and constitutional interpretation actually work, because at the end of the day, the Constitution is simply a piece of paper that represents a social contract among U.S. citizens.

It’s up to “we the people” to adhere to and reinforce the structure of the Constitution. Otherwise, we have just a piece of scrap.

As a lawyer and law professor, I can tell you there’s no such thing as an absolute anything when it comes to constitutional interpretation. If a case ends up in a federal appellate court — as many constitutional cases do — it means that smart lawyers identified a gray area in the law that lower courts could not resolve to everyone’s satisfaction.

In turn, when the Supreme Court issues a “split decision” in a case, it means the justices disagreed on something. If that something is how to read a provision of the Constitution, it logically follows that the constitutional provision itself was not clear-cut, absolute and obvious in the first place. Even so-called originalists, who purport to adhere to the plain meaning of the Constitution’s terms, must call balls and strikes — must exercise subjective judgment.

The main difference between originalists and those who advocate a so-called living Constitution is that the latter camp calls balls and strikes based on the goals, purposes and norms that underlie the Constitution; they don’t mask true intentions behind the fiction that words have a single absolute, definitive meaning.

To my eye, the pardon power is no different. Article II, Section 2 of the United States Constitution states that the president “shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.”

A keen lawyer would ask: Where are the gray areas in this language? Follow me here: The claim that the pardon power is unfettered relies on the word “shall.” In common parlance, “shall” is the equivalent of “mandatory”; absent qualifying language (which is missing here), “shall” also means “unlimited.” But the Constitution’s use of “shall” in other places — such as Article I, Section 1’s statement that “[a]ll legislative powers herein shall be vested in a Congress of the United States” — is quite different. Far from a clear-cut term, “shall” is a concept that’s riddled with holes.

Children are taught that the legislature makes laws. However, federal agencies make laws too. And when federal agencies make laws, those laws function with the same power and authority as do acts of Congress. So, even though the Constitution directs that “[a]ll legislative powers… shall be vested in a Congress,” it is a fact that entities other than Congress exercise what amounts to legislative power. In short, “shall” does not have a single, definitive meaning under the plain reading of the Constitution.

It’s true that, historically, presidents have widely exercised the pardon power with judicial impunity. In 1925, in a case called Ex parte Grossman, the Supreme Court upheld President Calvin Coolidge’s issuance of a pardon that reduced a man’s sentence for violating a federal court injunction prohibiting the sale of alcohol. Joseph Arpaio likewise violated a federal court injunction. Does that mean Ex parte Grossman rendered the pardon power absolute?

Not at all. In Schick v. Reed, the Supreme Court in 1974 upheld the president’s power to issue a pardon that conditionally shortened a death sentence to life in prison — but added that “considerations of public policy and humanitarian impulses support an interpretation of that power … which does not otherwise offend the Constitution.”

Under Schick, therefore, the same keen lawyer must ask whether President Trump’s issuance of a pardon to former Sheriff Arpaio offends some other provision in the Constitution. This is exactly the correct next question. When it comes to laws, the Constitution is the boss of the boss. It is the boss of everyone who works for the federal government, including Congress. It is the boss of any legislation that Congress issues, which means that the Constitution trumps (no pun intended) a contrary law.

Again, the Constitution is merely a conduit for self-governance — the people’s agreement to a set of rules that bind those who exercise power; power that ultimately resides in “we the people.” Thus, the Constitution is the boss of the president too.

Joe Arpaio violated a federal court order. To those in the business, this is astonishing. To condone Mr. Arpaio’s nose-thumbing at the federal courts’ legitimacy is highly dangerous to our system of separated powers. It suggests that anyone — even Mr. Trump himself — can blow off a federal judge’s order.

If court orders aren’t enforceable, the law itself — the rules governing how “we the people” and our elected leaders behave — would likewise become meaningless.

And then we’d be left not with a system of self-governance that has sustained our nation for more than 200 years, but simply a scrap of paper.

I have no doubt that, were a case challenging Mr. Trump’s use of the pardon power to reach the Supreme Court, the justices would recognize that the language of the Constitution is not so absolute as to permit the destruction of the Constitution itself.

Kimberly Wehle (kwehle@ubalt.edu) is a professor at the University of Baltimore School of Law. She formerly served as an assistant U.S. attorney and associate independent counsel in the Whitewater investigation and is the author of “The Outsourced Constitution: How Public Power in Private Hands Erodes Democracy,” forthcoming from Cambridge University Press.

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