Ridge Runner Chronicles: The Presidential Power That Has No Rudder – March 27, 2025
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By Bill Hoagland
Article II, Section 2, Clause I of the US Constitution provides in part that “The President shall have…[the] Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” This is the provision that grants to the President the exclusive power to pardon. It is a bare-boned provision and is a presidential power that seemingly has minimal guidance other than the fact that the offense that is the subject of the pardon must be a federal crime, not a state or local crime nor does it extend to impeachments. But does it require that a specific crime actually be committed before a pardon can be granted for that person? Or can the power be applied in a preemptive manner so that all crimes potentially attributed to a specific person be legally effective? Is there a limit on the number of pardons a President can grant? Could a President pardon himself? There are certainly lots of unanswered questions arising from this bare-boned provision, isn’t there? You could say that it is a presidential power without a rudder, drifting around in the open seas, waiting to be pushed around by prevailing political winds.
We will be hearing a lot about this “rudderless” power over the next few years. Truth is, there are not many Supreme Court decisions to provide guidance on these issues. That’s because for years, the Supreme Court was inclined to let the Executive Branch and specifically the President do whatever he wanted with respect to the power to pardon. But the times they are a changing and sooner or later, we can expect that this legal issue will be in front of the US Supreme Court for guidance.
Normally, in the absence of specific case law on the subject, persons interpreting specific clauses of the US Constitution endeavor to find out what the framers of the Constitution intended when the provision in question was drafted almost two hundred and fifty years ago. With that in mind, I recently read a book written by Jeffery Crouch, a law professor at American University, who researched the issue of what the framers intended when they agreed to this specific provision. Professor Crouch basically concludes that the original intent was to grant an exclusive, unlimited power to the President because the President needed the ability to deal with the issue of pardon quickly and decisively rather than having to debate every pardon in Congress before it became effective. And the assumption by the framers was that in exercising this power, the President would act by the guiding principle of what would be in the best interests of the country, not what was in the best interests of the President, the person being pardoned or any other specific beneficiary.
According to Professor Crouch, pardons were generally granted in accordance with the best interests of the country until President Ford pardoned former President Nixon. From then on, these pardons have increasingly been for personal or political reasons and not necessarily for what is best for the country. And the number of pardons granted by each President continue to increase. If you are curious, here are the numbers of pardons and commutations granted by the last four administrations: G.W. Bush 200; Obama 1,927; Biden 8,064; and Trump (to date) 1,700. (Many of the Biden pardons and commutations, by the way, related to marijuana convictions.) In my opinion, the increased number of pardons and commutations we have seen in the past three administrations dilute the importance of our established judicial processes. But more importantly, we are now seeing blanket pardons and pardons for family members, something not anticipated by the framers of the Constitution. Sooner or later, we need to consider amending the US Constitution and putting some restrictions on the number of pardons to be granted and restrictions on preemptive pardons, blanket pardons and self-pardons.
This Presidential power needs a rudder.
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■ Bill Hoagland has practiced law in Alton for more than 50 years, but he has spent more than 70 years hunting, fishing and generally being in the great outdoors. His wife, Annie, shares his love of the outdoor life. Much of their spare time is spent on their farm in Calhoun County. Bill can be reached at [email protected].
