Pardon Me? Why Obama’s Proposed Pardon and Executive Order May Lack Depth

Pardon Me? Why Obama’s Proposed Pardon and Executive Order May Lack Depth

The President has been teasing the public about pardoning millions of illegal aliens through an Executive Order. Constitutionally, the President could in fact take this act. 

Article II, Section 2,of the Constitution gives the President the power to pardon criminals for “offenses” against theUnited States. Politically, there could, and in my view there should, be a high price to pay forsuch recklessness and disregard of the public good, including impeachment. It is worth notingthat the last time amnesty was granted, in 1986, it was done so by an act of Congress signedinto law by President Reagan. That is far different than a unilateral act.

The political consequences are one thing. If the inability to understand the will of the voters in2014 is insufficient to cause the amnesty proponents to reconsider, nothing we can say wouldalter that reality.

My focus here is the legal consequences of such a grand pardon-amnesty. The President isconstitutionally free to pardon criminals who have violated federal laws. The President is alsofree to pardon thousands (and now perhaps millions) of criminals at once. In January 1977,Jimmy Carter pardoned all Vietnam War draft dodgers. President Washington pardonedconvicts involved in the Whiskey Rebellion. President Lincoln pardoned Civil War deserters ifthey returned to their units. The precedent and the power exists to take this action. Once theproclamation of pardon is issued, then an accompanying Executive Order would be signedgiving the implementing instructions to federal agencies.

Note, however, that the pardon power cannot create law. The President cannot grantcitizenship through executive orders or pardons. He cannot give non-citizens the right to voteor access to free health care by executive order or pardons. Congress has the sole power tocreate substantive laws. Nor can he allow more illegal immigrants to come here tomorrowthrough the pardon power. In short, the President has no substantive lawmaking power—either under his pardon power or executive order power. His primary Constitutional instructionis to faithfully execute the laws Congress passes.

The power to pardon is the power to pardon up to a certain date (the date of the pardon) forcertain specific illegal acts or crimes. President Carter did not, and could not, pardon all draftdodgers who would dodge a future draft in 10 or 20 years. President Clinton pardoned MarcRich who was on the lam for tax fraud. But if Mr. Rich returned to the U.S. and then, after hispardon, again violated the tax laws, the earlier pardon would not prevent prosecution forsubsequent violations. President Ford granted President Nixon a pardon prospectively—that is,prior to any charge or conviction, but it was based on any alleged crime committed up to thatpoint. Ford did not issue a pardon for any future crimes not yet committed, nor could he. It iscurrently a crime to come to the United States without a visa. If a pardoned alien leaves theU.S. and returns illegally, that is still a crime and it would not be cleared by the earlier pardon.

It is not a crime, however, to remain here illegally. Remaining in the United States is a civilinfraction, not a crime. President Obama could wipe all criminal acts clean—up to the date ofthe pardon, but there appears to be no basis to pardon non-criminal acts. The Supreme Courtruled long ago (1866) that you don’t have to be convicted to receive a pardon, but the action atissue is always criminal in nature. See Ex parte Garland (U.S. 1866). This is because theConstitution requires an “offense” against the United States, and an “offense” is criminal. It isgenerally accepted that deportation is not a criminal matter but a civil administrative matter.

There are three ways a visitor to this country can become an illegal alien. You can come herewithout authorization or inspection (walk across the border), you can stay longer than allowedafter legal entry through a visa or border card, or you could violate the terms of your legalentry (i.e., here on a student visa but you never go to school). The reason this is important, in that there is some debate whether the President’s pardon power could apply to those whocome here legally and simply overstay their visa. 

For those that contend that the President canonly pardon crimes (“offenses”), the estimated 40% of the illegals here that got here byoverstaying a visa have not committed a “crime” but a civil infraction. (The Pew Hispanic Center estimated up to50% of the illegal aliens in the United States overstayed their visas). The pardon power may notimpact their status. Sneaking in is a crime; remaining here after your visa expires is a civilinfraction. The President can only pardon criminal “offenses” against the U.S. which would, ifestimates are correct, apply to 60% of the group of somewhere between 11 and 30 million. 

Thepenalties for overstaying include certain time-bars, including being banned from the U.S. for aperiod of three years or ten years (all determinant on how long the person remained hereunlawfully and other factors). Further, some illegal aliens have been deported once and cameback. Congress has barred them from ever obtaining residency or a visa. If Obama issued amass amnesty or pardon, since being barred from getting a visa or a green card is not a criminalmatter, the pardon would have no impact in this category.

Assuming such a pardon is issued, the crime of entering illegally could be wiped clean. Butthose same aliens would still be remaining here illegally—that is, without a proper entry andvisa. And that is still a civil violation subject to deportation. The President cannot issue visas oroverride the law governing visas and immigration. The President cannot issue prospectivepardons. Thus, if one of the newly minted pardoned remains in the country the day after thepardon, or works in the country without the proper work visa, that is a civil violation subject todeportation.

This is no different than if a person was convicted of bank robbery 5 years ago (or, a betteranalogy, not convicted but did in fact rob a bank 5 years ago and could be convicted), a pardoncould remove that act as a basis for criminal prosecution. But if you go out the next day androb a bank, that’s a new crime, committed after the pardon. And since the President cannotissue blanket pardons for all future crimes, and he cannot pardon civil matters at all, the pardonbecomes irrelevant the day after it is issued except no one goes to jail (and that is probablyimportant to many, but it does not give millions of people a free pass to carry on here as theycan still be deported).

In short, the President can pardon as many people as he wants for past crimes. He has noability to issue a pardon for crimes yet to be committed or for civil infractions. Thus, the legalpermanence of this pardon may be short-lived. The next day, each pardoned criminal wouldarguably be subject to civil removal and none of the millions would be citizens.

The net result is that in 2 years, with a new President who takes seriously the oath to faithfullyexecute the laws of the United States, all of those pardoned criminals would still be subject toremoval, would still be illegal to hire, and would still not be citizens, would still not be lawfulvoters or lawful residents.

Thomas Van Flein is General Counsel to Congressman Paul Gosar (R-AZ) and former counsel toSarah Palin.