As reported by Jennifer Rubin at the Washington Post, a group called Protect Democracy has argued in a letter to the Justice Department that the pardon of former Arizona sheriff Joe Arpaio is legally invalid as a violation of the due process clause. They adopt an argument first made in the New York Times by Professor Martin Redish. The group contends that:
While the Constitution’s pardon power is broad, it is not unlimited. Like all provisions of the original Constitution of 1787, it is limited by later-enacted amendments, starting with the Bill of Rights. For example, were a president to announce that he planned to pardon all white defendants convicted of a certain crime but not all black defendants, that would conflict with the Fourteenth Amendment’s Equal Protection Clause.
Similarly, issuance of a pardon that violates the Fifth Amendment’s Due Process Clause is also suspect. Under the Due Process Clause, no one in the United States (citizen or otherwise) may “be deprived of life, liberty, or property, without due process of law.” But for due process and judicial review to function, courts must be able to restrain government officials. Due process requires that, when a government official is found by a court to be violating individuals’ constitutional rights, the court can issue effective relief (such as an injunction) ordering the official to cease this unconstitutional conduct. And for an injunction to be effective, there must be a penalty for violation of the injunction—principally, contempt of court.
I’m sympathetic to the sentiment. Indeed, it is precisely because the Arpaio pardon is so corrosive of the constitutional order that I’ve argued that it is an impeachable offense. Nonetheless, trying to invalidate the pardon itself is a non-starter.
Lots of constitutional language is vague or necessarily subject to interpretation in light of unforeseeable events. The pardon clause is not of that sort. Article II, Section 2 says that the president, “shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” That is as plain and unequivocal as any sentence the framers ever wrote. The framers could have written exceptions or qualifications into the constitution’s absolute grant of presidential authority. They could have made pardons subject to review by the Supreme Court. Or to override by Congress. Or something else. They didn’t. In short, the constitution made the president’s pardon power absolute, with one single exception – matters subject to impeachment.
The Protect Democracy authors contend that the plain scope of the pardon power in the original constitution is somehow limited by the later-enacted provisions of the Bill of Rights, specifically the 5th Amendment’s guarantee of due of process of law. But just because the Bill of Rights was enacted after the original constitution doesn’t make it a warrant for rewriting any portion of the original constitution that one now finds inconvenient.
Let’s consider the argument for a due process limitation on presidential pardon power:
To begin, because the constitution is America’s fundamental law, in constitutional disputes of this sort, the contestants are necessarily confined to certain forms of argument.
First, one can argue from the text, particularly where the text is ambigous or open-ended. (Textualism.) But the Article II text defining the presidents’s pardon power is clear and unequivocal. And the due process clause says nothing whatever about pardons.
Second, one can argue from a combination of textual and extra-textual sources that the framers intended something not obvious from the text. (Originalism.) Here the argument would have to be that the authors or ratifiers of the 5th Amendment due process clause intended it to modify the unequivocal pardon language of Article II. There is no evidence whatever for this position. Indeed, there is not the faintest hint of a suggestion that anyone in the founding generation ever even thought about the pardon power in connection with the due process clause.
Third, one can argue that, while a particular problem now at issue was not contemplated by the framers because technology or physical conditions or social arrangements have changed in ways they could not have anticipated, had they been able to anticipate modern conditions, they would have wanted the constitutional language to cover the problem. (A more elastic originalism.) A classic example is the judicial expansion of the 4th Amendment, which speaks of searching “houses, papers and effects,” to cover electronic communications 18th century politicians could not have envisioned. But in this case, Mr. Trump’s pardon of Arpaio is hardly something the framers could not have anticipated. Many of them were practicing lawyers. They understood courts, injunctions, and the power of courts to enforce their own orders. Had they wanted to carve out an exception to the pardon power for criminal contempt convictions, they could plainly have done so in Article II. They didn’t. And there is no hint that those who enacted the due process clause only a few years later (most of them the same people) had any other view of the question.
Moreover, and this seems to me key, the framers did anticipate that a president might abuse the pardon power, and they provided a remedy: impeachment. As I discussed in my last post, no less a figure than James Madison made that express point at the Virginia ratifying convention.
Fourth, one can disavow any interest in the intentions of the framers and treat the language of the constitution as a mere framework for an evolving set of rules, norms, and governing principles. But even the most elastic living constitutionalist cannot (or at least should not) completely ignore what the constitution itself says. The language of Article II, Section 2 is unequivocal. To use the vague concept of “due process” to negate the plain meaning of another section of the constitution requires a far more powerful argument than the good folks at Protect Democracy muster.
For example, they assert that if a president were to announce that “he planned to pardon all white defendants convicted of a certain crime but not all black defendants, that would conflict with the Fourteenth Amendment’s Equal Protection Clause.” This is, frankly, remarkably sloppy stuff. In the first place, merely announcing an intention to behave in a racially discriminatory way does not violate the 14th Amendment. Moreover, even if the president were to act on his stated intention and begin issuing pardons only to white defendants, that might violate the spirit of the equal protection clause, but that would not invalidate the white pardons. Nor is it plausible to suggest that a court would order the president to start issuing pardons to similarly situated black persons.
Or consider an analogous hypothetical – assume a president announced that he intended to nominate only white cabinet members, and then did so. Would that be outrageous? Sure. Would that violate the equal protection clause? No. Because the president’s power of nomination is plenary and not governed by legal rules. And even if one could construct some contorted argument that the 14th Amendment was violated, what would be the remedy? Does anyone seriously imagine that courts could order the president to withdraw nominations of the white cabinet officers, or order the president to substitute black ones?
In each of these hypotheticals, the president would be exercising, however deplorably, an undoubted constitutional power. And in each case, there would be no constitutional mechanism to reverse the exercise of that power in the particular case. There would be other constitutional remedies — but they are political and rest primarily with the public and Congress and not the courts. In the second case, Congress could refuse to confirm all or some of an avowedly racist slate of nominees. In both cases, if the president were in his first term, an outraged public could refuse to re-elect him. Or Congress could impeach him immediately.
A due process based judicial review of presidential pardons would have to be consistent with the checks-and-balances structure written into the constitution we have. It is not. The pardon power was designed in large measure as an executive check on judicial excesses. It would hardly make sense to give the judiciary a check on that check. And I can’t imagine how a court could fashion an appropriate standard of review of the pardon decision that wouldn’t give courts the final word on a question expressly, unqualifiedly, reserved to the president.
The real meat of Protect Democracy’s argument is that the due process clause must be read to provide a judicial remedy for every improper executive action. That is not so. The constitution gives the judiciary the power to effect case-specific remedies for some executive improprieties, but not all. Sometimes the constitution provides no remedy except political ones.
The Arpaio pardon is scandalous. But it will stand. Judges have no power to overturn it. Nonetheless, Congress has the power to remove — to impeach — the man who awarded it.