Thursday, August 14, 2014

The Pardon Power and Immigration

At, Guy Benson asks, "Could Obama Use a Presidential Pardon to Execute Rumored Mass Legalization Plan?" In our view, this question has been handled much more effectively by Ryan Lovelace, at National Review, but Benson writes:
Why couldn't Obama simply invoke that power by pardoning those illegal immigrants he's seeking to legalize? He could effectively wipe away the legal potency of their initial offense; namely, entering sovereign US territory unlawfully.
Benson can find 5 objections to this possibility, after looking around the web:
(1) Aren't pardons limited to people who've been convicted, or at least charged? (2) Wouldn't Obama have to pardon each person by name? (3) Pardons only apply to criminal offenses, and illegal immigration largely resides in the administrative and civil realm. (4) But illegal immigration is an ongoing offense, so pardoning the initial act wouldn't grant legal status, which is what Obama wants to do here. (5) Surely there's some limit to this particular power. If not, couldn't presidents use blanket pardons to basically nullify any law they don't like, or effectively impose any law they desire?
The answer to question one is, very clearly, "no." Ditto for the answer to question two. We are not sure why Benson seems to agree that the president can only pardon criminal offenses. He (Benson) should have researched that angle a bit more. But, question four is the kicker. Obama can pardon those who have violated a variety of immigration laws, but he cannot grant citizenship. That is not an executive power. It is a legislative power.

Presidents have granted pardons on the condition of deportation. They have granted pardons in order to prevent deportation. They have granted pardons to restore the rights of citizenship. But that is as close as they have gotten - and can get - to that fire.

Benson tries to keep the flame of potential controversy alive by suggesting the president could create de facto citizens with sweeping clemency proclamations. We just don't see that happening. The final years - we believe - will feature significant, and potentially controversial clemency decisions, but they will not be related to immigration. See Benson's piece here.

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