Wednesday, November 30, 2016

The President. The Pardon Power and DREAMers.

Raul A. Reyes, is described, by CNN, as "an attorney and member of the USA Today board of contributors." He calls on President Obama to pardon DREAMers:
... the young people brought to this country illegally by their parents, 740,000 of whom signed up for President Barack Obama's program granting temporary deportation deferral: Deferred Action for Childhood Arrivals, or DACA. 
A White House official, however, has said:
"We note that the clemency power could not give legal status to any undocumented individual. As we have repeatedly said for years, only Congress can create legal status for undocumented individuals."
We are guessing Reyes has done about as good a job as anyone has (or can) do on this front but are less than convinced. He says, for example that the administration "misses the point," because "no one is asking for legal status for the DREAMers; what [they] are seeking is a presidential pardon for them." This play on words seems critical, and quite telling.

We have no doubt whatsoever that, where there are past violations of federal law (none of which are specifically referenced by Reyes), the president can pardon any and all of them, as sweepingly as he chooses, with or without conditions, or any public explanation, or reasoning.

What does not seem so intuitive to us is that the president can pardon DREAMers for past offenses and then immunize such persons from any and all future, related offenses. Indeed, one of the authorities that Reyes cites, Noah Messing, says, "Although the president may pardon an offender immediately after the crime is committed, he may not exempt anyone from the law in advance." Additionally, Messing notes:
Similarly, a pardon cannot spare an individual from being prosecuted for an ongoing offense. For instance, if it is a federal offense to possess a wiretapping device, a president may pardon all past violations of that law. But if the pardon recipient continues to possess the illegal device, a new “possession” crime occurs the moment after the president issues a pardon.
Exempting a clemency recipient from all future possibility of prosecution would - without a doubt - amount to conferring special legal status. There is just no better language for that. It would - in effect - be a declaration of / granting of citizenship. See full editorial here.

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