Biden’s Pot Pardons Are the Wrong Means to the Right End

Y et again, President Biden has usurped powers that belong to Congress:

President Biden on Thursday pardoned thousands of people convicted of marijuana possession under federal law and said his administration would review whether marijuana should still be in the same legal category as drugs like heroin and LSD.

The pardons will clear everyone convicted on federal charges of simple possession since it became a crime in the 1970s. Officials said full data was not available but noted that about 6,500 people were convicted of simple possession between 1992 and 2021, not counting legal permanent residents. The pardons will also affect people who were convicted under District of Columbia drug laws; officials estimated that number to be in the thousands.

I am an unapologetic opponent of the federal War on Drugs, up to and including its prohibition of hard drugs such as heroin. I oppose it on the grounds of individual liberty: Governments should not tell free people what they can put into their own bodies. I oppose it on pragmatic grounds: Drugs are bad news, but our fight against them tends to yield worse outcomes than those we are attempting to prevent. And I oppose it on constitutional grounds: Under the Constitution as written, the federal government has no authority to superintend drugs beyond the regulation of imports and exports and the administration of genuinely interstate matters, and its insistence otherwise has done great damage to the integrity of the Constitution itself, and to the balance of power between Washington, D.C., and the states.

But the law is the law, and, unless we wish our chief executives to morph into dictators, those of us who covet reform must insist that it come via the correct channels. Which in this case, under our American system of government, means that the law must either be changed by Congress or struck down by an Article III court. Yesterday, President Biden said that “no one should be in jail just for using or possessing marijuana.” I wholeheartedly agree. But this isn’t Biden’s call to make. As the president, his job is to “faithfully execute the laws” as they are written, not as he would like them to be written. And, unfortunately, federal law as written — in part, by Senator Biden — makes the possession of marijuana a crime.

If one squints a little, one can make a superficially plausible case for Biden’s action. There is no doubt that the Constitution confers a pardon power upon the president. There is no doubt that the conferring clause is somewhat vague (“[the president] shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment”). And, as the Supreme Court has made repeatedly clear, there is no doubt that the matter is functionally non-justiciable. Moreover, by requiring potential pardonees to apply for their reprieves on a case-by-case basis, Biden has left himself adequate room to insist that his action is limited and targeted, and, thus, that it coexists neatly with the text of the Constitution and the legitimate traditions that text has borne.

But this is political sophistry, and we all know it. In The Anti-Federalist Papers, George Clinton worried that the granting of a pardon power to the president would yield “a vile and arbitrary aristocracy or monarchy.” Alexander Hamilton disagreed, writing in Federalist No. 74 that, without some final check on the most grievous of mistakes, American “justice would wear a countenance too sanguinary and cruel.” One does not have to disagree with Hamilton per se to notice that nowhere within his explanation did he suggest the pardon power could also be used to nullify laws that the executive branch happened to dislike. Quite clearly, that prospect was not on the table. And how could it have been, given that it would have undermined the very separation of powers that, at the time Hamilton’s letter was written, he was attempting to sell to the country at large?

Some observers have attempted to draw an analogy between President Biden’s move and Jimmy Carter’s decision to issue a blanket pardon for Americans who had dodged the draft during the Vietnam War. But, irrespective of the legality of what Carter did, there is a key difference between Biden’s action and Carter’s action, and that key difference is that, by the time Carter issued his order, the underlying political matter had been irrevocably resolved. Carter’s pardon was announced on January 21, 1977, by which point the Vietnam War had been over for two years, the draft had been ended for four years, and the Gulf of Tonkin Resolution that had enabled the war in the first place had been repealed for six years. As Dan McLaughlin correctly pointed out yesterday, if Congress had repealed the laws that Biden now dislikes, he “might have a case for making that repeal effectively retroactive via a blanket presidential pardon.” But, alas, Congress has done nothing of the sort. By wiping the slate clean retroactively, and by making it clear that his administration will use its prosecutorial discretion to avoid enforcing the law in the future, Biden has usurped Congress’s power.

As ever, one must ask where it will all end. If this is how our system of government is to work going forward, then there is nothing to prevent the next Republican president from tweeting, “No one should be in jail just for possessing an illegal firearm,” from pardoning everyone who is in jail for possession of an illegal firearm, and from instructing his administration to stop enforcing the legal prohibitions against such possession in the future. If that happened, the argument would be identical: that the pardonees are peaceful people, that their convictions represent only a small portion of the total gun-crime convictions, and that the constitutionality of the underlying laws was in dispute. After all, the next president might say: The president has a pardon power, that power is broad, and recipients will have to individually apply. Ergo . . . we just got rid of the 1968 Gun Control Act.

As it happens, I’d like that outcome, too. But I’d abhor the route taken to get there, because it’s not the one that the Constitution prescribes.