Biden’s pot pardon introduces presidential nullification of federal law

President Biden’s proclamation of pardon for those convicted of certain marijuana offenses encroaches on Congress’s constitutional lawmaking authority and fundamentally alters the balance of power between the coordinate branches of government. A bipartisan consensus would likely concur that people should not languish in a broken prison system for drug possession. But why is it that Congress has abdicated its law-making authority and opened the door for the president to legislate by pardon? The ramifications of this pardon extend far beyond the propriety of marijuana laws and now may lead to the routine de facto presidential nullification of federal laws. 

Under Article II, Section 2 of the Constitution, the president is vested with the sole authority to grant pardons for offenses against the United States. Drawing on English precedent, the framers granted this power to the president under the theory that the power of mercy and grace in the national interest must be vested in the sovereign.

Alexander Hamilton articulated a practical purpose for the pardon power in Federalist 74, wherein he reasoned that “In seasons of insurrection and rebellion there are often critical moments when a well-timed offer of pardon to the insurgents or rebels may restore the tranquility of the commonwealth.” Consistent with Hamilton’s principle, George Washington issued an order of amnesty in 1795 against those who engaged in the Whisky Rebellion. 

In 1863, Abraham Lincoln offered a pardon for certain confederates who renounced rebellion against the union. Similarly, Gerald Ford’s 1974 pardon of Richard Nixon was intended to spare the nation from the spectacle of criminal proceedings against a former president. In 1977, Jimmy Carter pardoned thousands of draft dodgers in order to heal the nation’s trauma over the Vietnam War.

In United States v. Wilson, the Supreme Court classified the pardon power as “An act of grace emanating from the power entrusted with the execution of laws.” The pardon power was designed to complement the faithful execution of the laws by serving as a safety valve when the enforcement of a particular law resulted in injustice. Few can forget the powerful moment when Alice Johnson praised God and America after her life sentence in prison for a non-violent drug offense was commuted by Donald Trump in 2018. 

The Biden pardon of those convicted of the Controlled Substances Act is not consistent with the principles of quelling rebellion, healing the nation, or displaying mercy in the face of a miscarriage of justice. Rather, it is the substitution of his own policy belief that a law duly enacted by Congress is now disagreeable. 

Congress can do little in response to this brazen expansion of presidential power. Pardons, even if corruptly or improperly granted, are not reviewable by the judiciary. For those pardoned, the Supreme Court held in Ex Parte Garland that consequence is absolute and the pardon blots out the existence of guilt and makes offender as if he had never committed the offense. 

Various proposals at the Constitutional Convention to provide a check on the pardon power were rejected leaving impeachment as the sole remedy against the misuse of the pardon power. Last minute pardons by outgoing administrations certainly may necessitate reforms. But the misuse of the pardon power as a usurpation of law-making authority only exacerbates the problem. 

The door is now open for a future administration to issue a pardon to all who have ever been convicted of tax fraud. The foreseeable escalation of this practice will only serve to undermine the separation of powers and the rule of law. 

The only constitutional remedy to eliminate a particular statute is for Congress to repeal it. There are very strong arguments that federal marijuana laws should be reformed. But Congress’ abdication of its law-making authority to the regulatory state cannot be used as a pretense to establish a new precedent of presidential nullification of laws through pardons. 

George G. Demos is a former U.S. Securities and Exchange Commission enforcement attorney and an adjunct professor at U.C. Davis School of Law where he teaches corporate and white-collar crime.