To date President Obama has used his pardon powers as president fairly sparingly. In an op-ed in the New York Times Peter Markowitz makes a suggestion that I think is rather shocking—the president should use his pardon powers to pardon millions of illegal immigrants:
It’s a common assumption that pardons can be used only for criminal offenses, and it’s true that they have not been used before for civil immigration violations. However, the Constitution extends the power to all “offenses against the United States,†which can be interpreted more broadly than just criminal offenses.
The enormous administrative undertaking that would be required to put into effect the deferred deportation program — which some in Congress had hoped to defund — would thus be wholly unnecessary. Indeed, Congress would be impotent to restrict the president’s pardon as the Supreme Court has made clear that “Congress cannot interfere in any way with the president’s power to pardon.†If immigration enforcement agencies or any future administration failed to respect the pardon, individual beneficiaries could use it as a shield in any deportation proceedings that followed.
President Obama has plenty of time left to issue such a pardon. There is solid historical and legal precedent for him to do so. And although it would probably bring about legal challenges, opponents could not use the legal system to simply run out the clock, as they have with his deferred deportation program. A deferred deportation program could be undone by a President Trump. Unconditional pardons, in contrast, are irrevocable.
The differences between Jimmy Carter’s pardoning of a half million Viet Nam war draft dodgers and pardoning illegal immigrants could not be starker. President Carter pardoned American citiznes; he pardoned people who had avoided what had become an unpopular war; since the draft had ended in 1973 there was no moral hazard involved; it was a popular action. Quite to the contrary I can think of little more likely to spark a rebellion than what Mr. Markowitz is proposing, an action that, presumably, would be taken after Hillary Clinton has been safely elected president.
He could also pardon all the federal drug war prisoners, issue upgraded discharge papers to vets with drug related discharges, reclassify marijuana etc, yet, he has not. Bold, decisive, stroke of the pen action that might tip an election has not been his forte.
“the Constitution extends the power to all “offenses against the United States,†which can be interpreted more broadly than just criminal offenses.”
There is an argument that civil offenses, such as legal violations which give rise to fines and forfeitures should be pardonable, as they are offenses which traditionally might have been treated as crimes and serve a similar purpose.
The Constitution gives Congress the right to establish a uniform rule of naturalization, which is the means by which an individual is given the privileges of a native citizen. I frankly don’t see how this approach doesn’t run into the same problem as the deferred deportation program. When Trump is President and he seeks to deport someone who claims that Obama pardoned him, what status or privilege has that individual obtained that prevents deportation? Has that individual become a naturalized citizen? A permanent resident? Can he vote? Is his non-removal status conditioned on not violating any criminal laws? Are companies that hire them pardoned as well? These are all matters that the Constitution gave Congress the power to decide, and I don’t see how this argument doesn’t lead to the ability for any President to simply make their own immigration rules.
SO if Obama pardons an illegal immigrant today, what are they tomorrow? Still an illegal immigrant as far as I can tell. Seems kind of like a dumb idea.
Steve
@steve, right. A pardon is for past violations, although they may not have been charged yet. This would be like pardoning violations of automatic weapons laws; it may forgive specific offenses that took place entirely in the past, but the next day anyone who still possessed automatic weapons without a specific license would be committing a crime, just like an individual in the country without permission would still be subject to deportation.
As I read the relevant statute the infraction is in entering the country without having presented yourself to the designated federal official. Pardons wouldn’t give them work permits or require the states to issue them drivers licenses, etc. but it would prevent those pardoned from being deported. At that point the political struggle would change towards granting them work permits, requiring the states to give them drivers licenses, enabling them to obtain insurance, receiving healthcare and educational benefits, etc.
I don’t have any background in immigration law, but it appears to me that the requirement to present oneself to the proper federal authorities upon arrival is in order for one’s status to be determined (or refused). Its the means by which a person is determined to be an alien who can be deported (subject to proof of any grounds claimed for asylum). I guess the crux here is whether a pardon for something like illegal entry could create a status as legal permanent resident? If an individual overstays a visa, is that an offense, or is removal just enforcing the original agreement?
I think those illegal immigrants simply called “undocumented,” are not “offenders” in the sense that criminal law has used the laxity of civil law to punish people through other procedures with less safeguards. Its the opposite. Undocumented immigrants simply lack the right or privilege to be inside a sovereign country. They are being removed as the most direct and expedient means of enforcing the rights of sovereignty, and in the process likely waiving the variety of criminal offenses that might have taken place at the same time.
http://www.politico.com/blogs/under-the-radar/2013/03/obama-issues-rare-immigration-related-pardon-158297
Thanks for the link, Andy. Neither of the pardons mentioned in that article changed a person’s status; they were in the country legally, and the Presidents pardoned crimes that could have resulted in deportation.