Mr. Chairman, the president’s clemency power is beyond dispute

On July 13, President Obama commuted the sentences of 46 non-violent drug offenders.  In response, the chairman of the House Judiciary Committee, Rep. Bob Goodlatte (R-Va.), joined by 18 of his fellow Republican committee members, issued a letter to the attorney general expressing their “deep concern” that the president “continues to use his pardon power to benefit specific classes of offenders, or for political purposes.”  The use of the pardon power “to benefit an entire class of offenders who were duly convicted in a court of law,” the letter asserts, is “plainly unconstitutional” because it purportedly usurps “the lawmaking authority of the Legislative Branch” and involves “picking and choosing which laws to enforce and which to change.”

Goodlatte and his colleagues are certainly entitled to take issue with Obama’s decision to grant a measure of relief to persons sentenced under a set of laws that are widely viewed to have been, in practice if not by design, racially discriminatory and unjust.  But their constitutional claims are so illiterate that it is difficult to tell whether they expect the attorney general to take them seriously.

{mosads}The chairman’s criticism ignores settled practice stretching back to the beginning of the Republic.  Throughout American history, presidents have granted executive clemency to “specific classes of offenders” on dozens of occasions, from George Washington’s pardon of the Whiskey Rebels in 1795 to George H.W. Bush’s pardon of the Iran-Contra defendants in 1992.  Perhaps more to the point, in the early 1960s, John F. Kennedy and Lyndon B. Johnson commuted the sentences of several hundred prisoners serving mandatory minimum sentences under the Narcotics Control Act of 1956, without objection by Congress.

The historical lack of controversy shouldn’t be surprising.  Under our tripartite system of government, an act of executive clemency in no sense “usurps” legislative or judicial authority.  Rather, in the words of Justice Oliver Wendell Holmes, it “is a part of the Constitutional scheme.  When granted it is the determination of the ultimate [executive] authority that the public welfare will be better served by inflicting less than what the judgment fixed.”  The president’s pardoning authority is therefore limited only by the text of the Constitution itself, not by the transitory terms of the criminal code.  Indeed, that was the Framers’ point in giving the power to the president in the first place, to act as a check on the other branches.

To be sure, the president’s systematic exercise of the pardon power to benefit “specific classes of offenders” has not gone entirely unchallenged by Congress.  But the Supreme Court long ago resolved this dispute in favor of Obama’s authority to redress the injustices entrenched by the current federal sentencing regime.  In the aftermath of the Civil War, President Andrew Johnson issued a series of amnesty proclamations that restored the civil rights of former Confederate sympathizers.  This was enormously controversial at the time, not least because it undermined the Radical Republican’s designs for the post-war reconstruction of Southern society.

In the ensuing legal battle, the Supreme Court repeatedly struck down Congress’s attempts to constrain the president’s pardoning authority.  In 1866, the Court held, without qualification, that “[t]his power of the President is not subject to legislative control.  Congress can neither limit the effect of his pardon, nor exclude from its exercise any class of offenders.  The benign prerogative of mercy reposed in him cannot be fettered by any legislative restrictions.” 

The Court also rejected the effort to draw a false distinction between pardons granted to specific individuals on a case-by-case basis and a pardon granted to a class of persons by means of an amnesty proclamation, precisely the claim that House Republicans are making against Obama.  The president is therefore authorized to grant a general amnesty without congressional sanction, protestations to the contrary notwithstanding.

Finally, there is no reason to doubt that the president can grant clemency because of his own policy judgment about a particular law.  As one conservative federal judge recently opined, it is a “settled, bedrock principle of constitutional law” that “the president may decline to prosecute or may pardon because of the president’s own constitutional concerns about a law or because of policy objections to the law.” 

The historical irony, of course, is that a presidential power forged in a bitter political dispute over the property rights of Confederate rebels is now being used to afford a measure of justice to federal drug offenders, who are disproportionately African-American.  Turnabout, I suppose, is fair play.  But the president’s power is beyond dispute.

Morison is a criminal defense attorney in Washington, D.C., and formerly served as a staff attorney in the Justice Department’s Office of the Pardon Attorney.