I'm Pretty Sure That's the Purpose of the Pardon

Two left-leaning legal groups are suing in Federal court, arguing that President Trump's recent pardon limits the power of the courts. Well, the word they use is 'undermine.'

The pardon power exists to limit the power of the courts, just as any of the other checks and balances do. Most commonly, it is used to limit the power of the court when it issues unjust rulings, or unduly harsh ones. But that's not the only way in which the pardon exists to limit the courts; President George H. W. Bush used it to limit the courts' role as a fact-finding agent during the Iran-Contra period. Especially when the courts enter into political disputes, it is reasonable for the other branches to exercise their powers to limit the courts' role.

Indeed, when the branches come into direct conflict like this the resolution is found in the fact that there are three branches rather than some even number. Congress could impeach a president for a use of the pardon power they found unacceptable; if they do not, then de facto they are endorsing the President's use of this power. The courts are not meant to exercise dominance over the other two branches of the government; they are only co-equal to the other branches. When the other two branches are opposed to the courts, the courts should give way.

It'll be interesting to see if they do, though. In general, if you ask a Federal judge if Federal judges should have more power, the answer is nearly always "Yes." Finding judges who believe in courts' being constrained by the Constitution, rather than exercising a plenary power to rewrite it at will, is one of the key difficulties in selecting a better judiciary. My guess is that the courts are likely to accept this argument that no President should be able to limit their authority in this way, even though limiting the courts' power is one of the reasons that the pardon power exists.


J Melcher said...

Ask this: What authority should society empower to overrule a jury? If a court -- which after all should be a group of people working through a process -- tends to represent the community, virtues and flaws altogether, then there will be instances where a jury convicts their preconceived stereotype of an accused person, rather than the individual. Tom Robinson in _To Kill a Mockingbird_, for fictional instance.

The jury itself serves as a check on the executive, and the executioner. In the present set-up no one may lose life and property (though they may increasingly lose time) if a jury declares one not guilty. But the balance is that the executive may, in certain circumstances, check the excesses of a jury and pardon a person that jury has (plausibly, mistakenly) convicted.

So far I think the situation is set up correctly.

The issue gets lots fuzzier when "the courts" refers instead to "a judge". On what basis does a governor overrule another elected official, or an independent offical appointed and confirmed by a prior governor? And why would the argumental basis be different for a federal dispute between the president and federal judge? If the voters in a state want, say, immigrants more closely observed or gays barred from the privileges intended for married/coupled men-and-women, and a judge overrules the voters, does a governor (or president) have the authority to over-over rule the judge? Should a president?

MikeD said...

Literally EVERY Presidential pardon has overturned the finding of a court. Every last one. It's in the nature of a pardon. To complain about this one literally shows nothing more than the plaintiffs are upset at the recipient of the pardon in this one case, and nothing more. Well, too bad. You want more drug dealers and 1960s terrorists pardoned? Get your candidate elected next time.

For the record, I don't give a good "gosh-darn" about Joe Arpaio. I think the accusation that he was in contempt of the court for violating its order demanding that he stop targeting Hispanics for immigration status is factually correct. He didn't want to stop, so he didn't. But literally the previous president pardoned a terrorist who had many times been offered clemency if he would only renounce violence, which he refused to do. So don't come crying to me about "undermining the judicial system".

*I want to use MUCH stronger language throughout this comment but I also will not track muddy shoes through my host's place (so to speak).

Ymar Sakar said...

All the talk about Trum talking the good talk, is meaningless to me. These actions, however, meant quite a bit more.

It takes a certain amount of guts to do it in the first year. But there are plenty of things Trum can't do, such as prosecute the pedo pizza gate ring leaders. Else he'll end up like his obsession with JFK's assassination: dead. I wonder if he realizes this or not. Bannon might have. Well, we'll see with the "gray hairs".

Ymar Sakar said...

One of the weirder results of studying the Old Hebrew bible and other translations, is that people tend to use the term "judge" to mean having an opinion.

Then they use "judge" in the US legal system to mean someone that can determine their life and death. Were they never taught that the Israelis used "judge" in the same sense? They have theological laws that were based on the Torah, which included stoning people for adultery. And for other things that we wouldn't take notice of.

That was what it meant to "judge" someone.

Western Christianity had lots of problems with interpreting scriptures. This isn't even the tip of the iceberg.