The Supreme Court has recognized a few limitations on the Presidential pardon power – it is only applicable to federal crimes, the acts being pardoned must be in the past (i.e. a President cannot pardon future or ongoing criminal activity), the recipient must accept the pardon, etc. But Supreme Court precedents on the pardon are few. For instance, Presidents have pardoned for unspecified offenses that may or may not have been committed (e.g. Ford’s pardon of Nixon) but the validity of such a pardon has never been explicitly tested.
If a President were found to have issued a pardon as part of a criminal act (i.e. being bribed), he could be criminally prosecuted. Would the pardon itself still stand? Hard to say how the courts would find.
Congress could explicitly make all of these (and more) illegal. Explicitly, easily, and immediately, as well as limiting them to periods when the President will pay a political price for issuing them.
It is not an argument. It is an opinion just as valid as your opinions.
One: he could have been convicted on federal drug charges which the President could pardon.
Two: If convicted by the state, he could be pardoned by the Governor which is an analogue of a Presidential pardon.
First of all, you make the same argument in presenting your opinion that the bar is set too high as an argument because only 27 amendments have passed. So tu quoque.
Second of all, it is NOT a circular argument, it is an opinion. You seem to have a double-standard there that your opinions are correct and different ones are not. But to that specific statement. I never said “I would argue it is set at the perfect height.” I said “Some” because I have read opinion pieces that other feel some state constitutions are entirely to easy to amend and that amendments are made on political whims. A prime example is Texas
The Texas Constitution is one of the longest in the nation and is still growing. As of 2022 (the 87th Legislature), the Texas Legislature has proposed a total of 700 amendments. Of these, 517 have been adopted, and 180 have been defeated by Texas voters, and three amendments never made it to the ballot. Thus, the Texas Constitution has been amended 517 times since its adoption in 1876.
You may think that over 3.5 amendments per year is the perfect amount. But here’s the thing, other people are entitled to their opinion as well.
In order: no, no, no (separation of powers), it can’t, it could try but it would take SCOTUS undoing over 200 years of precedence and breaking the backbone of our three-branch system to uphold it so in reality it won’t happen, no one would have standing which is another reason no court would overturn a pardon, zero.
The Constitution provides that an amendment may be proposed either by the Congress with a two-thirds majority vote in both the House of Representatives and the Senate
Then I don’t understand your argument about amending the Constitution throught he courts: every way seems blocked.
And concerning the tu quoque: well, yes, the both of us. We present our opinions as arguments. Not very convincingly, it seems. Too bad.
It would be fact-dependent, but it’s entirely possible that the SC could overturn a specific pardon without “breaking the backbone of our three-branch system” – particularly if the exercise of the pardon conflicts with another Constitutional requirement. For instance, a pardon issued by a President in furtherance of a criminal scheme could be found to conflict with the Constitutional requirement that the President, “take Care that the Laws be faithfully executed.”
Fine, but you need 3/4 of the states on board as well. Kinda undermines your statement that they could do so, “explicitly, easily, and immediately.”
No, you’re wrong here too. The rest of the sentence I quoted above cites an alternative way of amending the Constitution, which is to get 3/4s of state legislatures aboard. It is an alternate method, not an additional requirement, and the archives note that it is a very rarely used method. Practically speaking, the only way it’s been amended is by a vote of Congress, which could theoretically happen in an afternoon.
And as I tried to argue in my OP: does the concession of a pardon in itself not violate the three branch-system? Congress approves a law (Legislative), a tribunal applies this law to convict a criminal, i.e., a person that has not respected the laws of the USA as rightfully adopted by the Legislative (Judicative). And then comes the Executive and declares both other branches of Government irrelevant in a concrete case, just because it can. No restrictions, no limitations. How does this square with the separation of powers?
I . . . don’t understand the point you’re making. My point is that Congress cannot “explicitly, easily and immediately” overturn the President’s Constitutional pardon power through any avenue – legislation, proposing a Constitutional amendment to the states, or convening an Article V convention upon petition from the states.
Are you thinking of something like the Blagojevich scenario where his right to name a replacement senator was called into question when it was revealed he was selling it? I don’t think SCOTUS would take it on if federal pardons were being sold calling it a political question. I think they would punt and leave it to the House to decide if that is an impeachable offence.
The Courts interpret the Constitution. The two cases I gave fundamentally changed how those provisions in the Constitutions (Privileges & Immunities and the Interstate Commerce Clause) had always been interpreted so in effect it “amended” the Constitution through case law.
I think you have a misunderstanding of why the Constitution gets amended. If there is an issue that affects all of the stakeholders, the Feds, the States and the People then we amend the Constitution accordingly. WHEN that’s the case, amendments get passed very quickly. In this case, I think (opinion) not enough people care about these pardons to change the supreme law of the land OR they (opinion) feel like I do that these are rare enough [and the courts are corrupt anyways] that we accept the bad parts because we want the good part.
It’s called Checks and Balances. Same reason the Courts can call a law passed by Congress invalid as unconstitutional or how Congress can remove a judge/justice or President/VP/cabinet member through impeachment & conviction.
I wonder if the president can accept bribes for pardons and then subsequently issue a separate set of pardons for the payment of said bribes, while also pardoning himself for accepting the bribes (assuming he can pardon himself, of course).
If you read Article V, there are two ways to propose amendments to the Constitution - 2/3rds of each house of Congress propose them directly, or 2/3rds of the states ask Congress to call a Constitutional Convention to propose new amendments.
However, the amendments so proposed are not ratified until they gain approval of 3/4th of states, either by passage by the state legislatures or by special conventions in 3/4 of states (I’m not sure this second path to passage has ever been used).
Simple proposal of an amendment by Congress does not add it to the Constitution.
Say Joe Biden decides to pardon every single convict currently imprisoned in the U.S. Federal system this afternoon. “Just let 'em all loose!!! Now!!!” he orders in his formal pardon. And so every prison opens its doors and murderers, bank robbers, rapists and double-parkers all walk out, free men and women.
I sense that, at this point, Republicans in Congress might think he’s gone too far, and perhaps a majority of Democrats might agree with them. Since the wholesale pardoning is an ironclad right of the President, they can’t reverse the pardon, which was a perfectly legal act as stated clearly in the Constitution. But to prevent such a travesty of justice from being repeated by “Let 'Em Loose” Biden or any future president, both houses of congress meet and agree on a modification of the pardoning powers as enumerated in the Constitution, and institute an amendment saying, oh, “All pardons must be approved by a majority of Congress” or maybe “the governor of each state housing the prisoner must approve” or “the victims of each crime must agree to the pardon” or really any goddamned thing they want to add to the laws, because, being Congress, that is their function.
Let’s say the President pardons a billionaire in return for a bribe. There’s no doubt about it – it’s all on tape, the President explicitly says, “once you transfer the $10 million into my offshore account, I’ll issue your pardon.” The billionaire does, and the President issues his pardon the next day.
There’s two issues – how the President can be held accountable for his criminal act, and whether the pardon is valid. On the first issue, the Court could reasonably punt to the House (the SC has never explicitly ruled whether the President can be criminally prosecuted for acts in office). But determining the validity of the pardon would have to fall to the judiciary, in the context of some authority (say the next President’s Department of Justice) attempting to bring or reinstate charges for pardoned crimes against the billionaire.
I guess. Nobody here was arguing that the Constitution can’t be amended. It’s a little more complicated than Congress “instituting” an amendment, though.