Friday, April 15, 2016

Heritage on the Apocalyptic Pardon Horseman

In a piece at Heritage.Org, entitled, "A New Approach to the Texas v. United States Immigration Case: Discretion, Dispensation, Suspension, and Pardon—The Four Horsemen of Article II," Paul Larkin suggests the famous Biblical passage "can be used to signify the end of the Barack Obama presidency."

Larkin says President Obama "worked with Congress to enact as law policies that he believed were necessary to benefit the nation" early in his administration. When the Democratic Party lost control of Congress, however, the President "shifted gears."
Since then, he has often used executive orders or administrative decrees (issued by different departments) rather than legislation to create law. In fact, sometimes he has issued such decrees in the teeth of the very laws that he helped enact early in his first term, such as Obamacare. One of the horsemen he has ridden is the pardon power. 
Well, that certainly is a different slant. President Obama's first four years in office represented the least merciful term since John Adams. To date, there is little about his record on pardons and commutations of sentence that would intuitively encourage comparison with the Four Horsemen of the Apocalypse, or even any one one them!

Larkin makes the routine linkage of the pardon power to the King of England, but says nothing of its logical place in a constitutional, federal system of separation of powers and checks and balances. One guesses he is not aware that Hamilton (in the Federalist papers) argued there should be "easy access" to mercy. Larkin does note that the Pardon Clause "enables the President to reduce the punishment imposed by a court or to erase a judgment of conviction entirely" ... which is true, among other things. He then states that the President "created the Clemency Project 2014" so he could commute the sentences of "deserving prisoners who could not take advantage of" the Fair Sentencing Act of 2010.

Of course, the President could pardon (commute the sentence) of any one that he wanted, for any federal crime, for any reason, or no reason at all, well before CP14 every showed up in this world.

Larkin then suggests that the discretionary use (or, in Obama's case, general non-use) of the pardon power is comparable to the situation re immigration. Congress has refused to pass the so-called DREAM Act, so the President
... has relied on an Article II power different from the Pardon Clause: the President’s authority to exercise discretion in the enforcement of the law ... In the government’s view, the DHS has the discretion to decide how to allocate its scarce resources to those instances in which the immigration laws and the nation’s interests are best served. The new policy [subordinates] to more pressing deportation proceedings the need to institute hearings to deport aliens whose presence in the nation poses no risk to national or internal security and whose deportation would pose a serious hardship on them. 
Larkin argues "English legal and political background" reveal there are "two implicit but clear limitations on the President’s authority: The President cannot dispense with the application of the law for particular people, and he cannot suspend the operation of a law in its entirety." One wonders, immediately, what this then has to do with the pardon power?

After a whirl through history, Larkin concludes the President can "decide" or be "selective" about "which cases to select for prosecution, suit, or deportation." But, he insists, it is "not obvious" that the source of that power is the Take Care Clause ... and "it certainly cannot be the Pardon Clause."
Parliament clipped the crown’s wings by legislating that no king or queen could dispense with or suspend the law absent Parliament’s authorization. The Framers did not wrest that power from Congress and give it to the President. Instead, they imposed on the President a duty to see to the faithful execution of the law. Whatever the reach of the President’s discretionary authority to enforce the law, he cannot go so far as to dispense with or suspend its application. 
This idea, while fun and interesting, can, of course, easily abused by over-zealous rhetoricians and tunnel visioned partisan hacks. President Obama - to date - has granted 248 commutations of sentence. 22,000 applications sit in DOJ and 36,000 more are being juggled by CP14. Do the .004 percent of applications granted constitute tossing "the law" in the garbage, or a suspension of its application? Are they "tantamount to dispensing with or suspending the operation of the law for one or more people?" Do they amount to destroying the "rule of law?" We guess no reasonable person could actually reach such conclusions but, unfortunately, we are not so certain about Larkin.

Then, the piece gets even more muddy. Larkin says "background" reveals "that a President may exercise a dispensation or suspension authority only insofar as Congress empowers him to do so"  - a conclusion no one would reach reading the plain language of the Constitution. The Framers, he writes, "did not give George Washington the power claimed by James II to dispense with or suspend the operation of the laws." But we all know Washington granted group pardons / amnesties to participants in the Whiskey Rebellion. If, likewise, President Obama, tomorrow, were to grant an amnesty to all-first time, non-violent drug offenders who had long, exemplary prison records and who would not even be in prison were they sentenced under the current laws ... well, we know what the routine would be.

As if there is no empirical research on the topic, Larkin writes that it "is not uncommon to see Presidents ride two of the four available horses—Discretion and Pardon—in the twilight hours of their time in the Oval Office." In fact, it is quite uncommon - at least in the case of pardons - depending on how literal one interprets the language "twilight hours." Larkin's reference to Bill Clinton, as a probative historical example, is pretty sloppy indeed. See the entire piece here.

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