Posted on 08/07/2014 2:37:24 AM PDT by 2ndDivisionVet
A follow-up to my earlier post about what O can and can’t do under Article II. One thing he can do, unambiguously, is pardon people — lots of people if he likes, just as Jimmy Carter pardoned many thousands of draft dodgers after Vietnam. He could also pardon people preemptively, before they’re charged, which is what Gerald Ford did for Richard Nixon. The obvious question, then: If O’s on firm ground constitutionally in using the pardon power, why doesn’t he explicitly frame his upcoming mega-amnesty for illegals as a pardon? Guy Benson and I spent a solid half-hour debating that this afternoon via e-mail and I figured some readers are also wondering. In fact, here’s Guy’s post on the subject, published a few hours ago at Townhall.
One potential obstacle to a pardon is the idea that an illegal’s ongoing presence in the U.S. is a continuing violation. You can pardon him for having been here already, but what about pardoning him again the day after the pardon issues, and the day after that, and so on? I think that’s less of a legal obstacle than a rhetorical one, though. Obama could issue an order declaring his intent to pardon any nonviolent offender served with an order of deportation now or in the future. That would be a cue to immigration officials not to bother trying to remove anyone. Mission accomplished.
A much bigger obstacle, via Gabe Malor, is that the pardon power simply doesn’t apply to immigration offenses. But don’t take his word for it. Here’s a tidbit from the DOJ’s own webpage on pardons:
For over 100 years, the President has relied on the Department of Justice, and particularly the Office of the Pardon Attorney, for assistance in the exercise of the executive clemency power granted to the President by Article II, Section 2 of the Constitution. Under the Constitution, the President’s clemency power extends only to federal criminal offenses.
Crossing the border illegally isn’t a criminal offense, notes Gabe. It’s a civil offense. The amnesty-friendly wonks at WaPo reluctantly made the same point back in 2011 when the thought of pardoning illegals was raised at the time:
In reality, the president does not possess this authority, as unauthorized presence in the U.S. is a civil violation, not a criminal one. Presidential pardon power only applies to federal crimes, described as “offenses against the United States” in the Constitution. As such, “a pardon can’t make someone a citizen or lawful resident,” explains John Harrison, a law professor at the University of Virginia. “Deportation is not a criminal proceeding, it’s a civil process that removes from the country someone who is not entitled to be here.”
Only Congress can change the terms for granting immigration status or citizenship, whether for all immigrants or a subset of people. And that’s why an immigration overhaul has stalled for so many years.
In normal times that would be enough to take this option off the table, but we don’t live in normal times or else we wouldn’t be gaming out how the president’s planning to unilaterally legalize five million farking people. 2014 is a world away from 2011; the president does all sorts of things nowadays that people used to think only Congress had the power to do. So, depending on how bold Obama’s feeling, he could note that the Constitution grants the president a pardon power for “offenses against the United States.” That’s been interpreted to mean criminal offenses only but I’ll bet if you asked a bunch of Republicans whether illegal border-crossing should qualify in the abstract as an “offense against the United States,” you’d get upwards of 90 percent saying yes. O could say, in announcing a mass pardon, “these people have committed an offense against the United States, but…” and then wait for the GOP to sue him over the fact that he’s trying to grant a pardon for a civil offense, not a criminal one. The politics of that could be dicey for Republicans — they’ll be demagogued as anti-Latino for opposing Obama’s order, naturally — and even if they file suit anyway, Obama would be fine with punting this issue to the Supreme Court. If they uphold precedent and declare that pardons don’t apply for civil offenses, that’s fine. The whole point of this amnesty ballet is to pander to Latino voters and he’ll have succeeded at that no matter what happens in court. If the four Democrats on the Court plus Anthony Kennedy go into the tank and decide that “offenses against the United States” include border-crossing after all, great. O will have set a bold new precedent in expansive executive authority.
One other nice thing for amnesty shills about a pardon for illegals is that it would change their legal status in a way that “prosecutorial discretion” might not. If O exercises his discretion not to have you deported, that doesn’t automatically mean you’re now legal; it just means the feds have better things to do than deport you right now. With a pardon, by contrast, your offense would be expunged. You’d be here in the U.S. and you’d be guilty of no offense; I’m not sure what that would make you technically — a permanent resident? an “unauthorized immigrant at sufferance” or something? — but you might be eligible to work now that you’re not facing any charges. And of course, the politics of issuing a pardon are much better for the White House than issuing “DACA II” or “parole-in-place” or whatever gassy argle-bargle Obama might end up choosing instead. If you’re going to pander to the left and to Latino voters, you might as well stick to a concept that everyone understands rather than some too-cute finessing of immigration law. I’m sure it’s what O would prefer to do — if he could. But ultimately, the precedent on pardons applying only to criminal offenses might be too much for him to gamble on this. He got smacked down 9-0 on recess appointments and he might well get smacked down 9-0 on this one, which would add credence to the GOP’s argument that he’s an executive run amok. Alas, his historic, unprecedented mega-amnesty will probably have to find a more prosaic vehicle. Too bad — if you’re going to drop the bomb, you might as well make it as many megatons as possible.
(VIDEO-AT-LINK)
Logically, (I know that is difficult for libturds) a pardon only restores a citizen to his prior status. Something an illegal alien never had. Hence a pardon would fail to yield Rat voters. No good for the Rats. Those folks HAVE to vote, of course, for THAT is the whole point.
That is interesting. Thanks.
Marc Rich, whose pardon was walked through by Holder I believe, ran afoul of the limits of pardon. He was pardoned from the criminal acts of dealing with Iran Oil BUT the pardon could not obsolve his tax consequences. He never returned to the US because of that IMO.
Wouldn’t you need a good headcount first? /sarc
You can pardon the person for having entered the country illegally (if that were the case) and being in the country illegally...and the person can then quickly go home and have a clean record here.
However, if he stays, he is still violating the law and the next president, if we can find one, can prosecute him for still being here illegally. No different that pardoning a bank robber - you can pardon his past robberies, but not his future robberies.
In this case, the person is still here illegally, and the only question is when (and if) the federal government decides to go after him. That’s why the president pressed so hard for Congress to legalize them...then they could NEVER be touched.
So, in a way, I almost want this “Amnesty” type action from Obama...then we get their names, hopefully their fingerprints, and where they are. A nice “registration list” to use when the time comes for a roundup.
As I said before... just show me the country where I can go and work without paying taxes, where I can go and NEVER answer to their laws, where I can remain without citizenship and STILL enjoy the privilege of VOTING!
Show me THAT place and I’ll go home right now and start packing!!!
By the way... as an actual CITIZEN, I MUST pay taxes and I’d be prosecuted under the LAW if I failed to do so!
I’m a U.S. citizen, a Vietnam vet, and I’ve worked and paid taxes and played by the rules my entire life. So, I want to know what laws I can break that not only will I NOT be punished for breaking, but will be REWARDED for breaking!
It would still be an illegal amnesty. The next president could simply reverse it with another “executive order” after declaring the prior order to be illegal an invalid.
“Life in post-constitutional America.”
A banana republic with nukes.
I always wonder ... if I’m ever hauled up in front of a judge for an infraction or a crime, can I cite as precedent in the law, the special consideration ILLEGAL’S routinely get ... and so demand the same for myself?
For example, can I refuse to file a tax return this year and when I am prosecuted can I cite as my defense, the millions of illegals working here who DO NOT pay taxes?
Is there one law for ME and some other law for THEM?
An actual ‘pardon’ has a specific legal meaning.
You can only pardon someone whose been convicted of a crime in a court of law. If you’ve never had a trial and been found guilty you can’t be legally pardoned.
While I would certainly agree that pardons should not be used to conceal criminality or to grant an ongoing special status to some people, we must recognize that Gerald Ford pardoned Nixon for offenses without specifying what they were, when they were committed, or who was harmed.
It makes me absolutely ill when I hear people praise Nixon. His criminality led to the felony convictions of about 65 people. Instead of using the machinery of government to safeguard our liberties, Nixon used it to further his own political ends and to persecute his personal enemies. Gee, who does that remind me of?
Then how did President Ford pardon former President Nixon, as discussed in the article?
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