Editors at National Review Online urge a significant change in federal executive power.
Our Constitution was framed by wise men, and it has served us well. But they were also wise to give us the power to amend it. The time has come to use that power to rein in or abolish presidential pardons.
Article II gives the president the sole and unchecked “Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” This is limited only in two ways: it cannot prevent removals from office by impeachment, and it applies only to federal, not state, crimes. It is the closest thing to a royal power possessed by any one official of the national government. Once issued and accepted, a pardon cannot be stopped by legislation or the courts, or undone by a subsequent president. The only real remedies for presidential abuse are political and reputational.
From the beginning, the pardon power had its republican critics, but it long served its purpose. Alexander Hamilton argued, in Federalist No. 74, that presidential pardons could be best deployed in negotiating with rebels to lay down their arms. It was instead more commonly used to close eras of rebellion after the fact, from George Washington pardoning the leaders and participants in the Whiskey Rebellion six years later to more controversial pardons after the Civil War and after the draft resistance of the Vietnam era. …
… But several factors have conspired to produce more abusive pardons and fewer constraints for an already overbroad power. Since the failure of the Clinton impeachment, our presidential politics has de-emphasized character. The decline of Congress has left presidents less able to be checked. Lawfare and the vast expansion of federal criminal law have led partisans to rationalize tribal protection of their own side. Successive White Houses have grown bolder in disregarding an institutional pardon process, in back-loading pardons to the end of a presidency when political checks are least effective, and (in a Biden-era innovation) in letting staffers mass-produce pardons signed by autopen that are only nominally presidential decisions.
