The Corner

Law & the Courts

Pardonable Sins

How far does the president’s power to pardon go? Matthew Franck argued at NRO a while back that certain kinds of presidential pardons would run counter to the logic of checks and balances that informs the Constitution—including its provision for a pardon. He argued that point ably and, to my mind, persuasively, suggesting that courts need not recognize the validity of a presidential self-pardon. (I’d add a humble textualist argument to his case: It strikes me as entirely possible that a “pardon” was understood at the time of ratification as something that by definition had to be done for another; in the same way that you cannot “offend” yourself, you cannot pardon yourself for an offense.)

But the arguments that Trump’s pardon of Sheriff Joe Arpaio is unconstitutional, made here and here, strike me as much less persuasive. The main argument for this position attempts to reason from the logic of the Constitution, too. The problem is that it assumes that judicial supremacy is a kind of master principle of the Constitution. It assumes, that is, that the Constitution establishes the federal courts as the final word on the meaning of constitutional provisions and that anything that keeps them from being that final word is unconstitutional. Therefore it is unconstitutional for a president to use the pardon to stop courts from determining that an official has violated the Constitution and rectifying the violation; and that’s what Trump did in the Arpaio case.

The problem is that a conception of judicial power this exalted just isn’t anywhere in the Constitution, isn’t required for it to function, and runs against the very existence of the pardon power. If it’s an attack on the rule of law whenever a president blocks the courts from saying what the law means for particular cases, then every pardon is such an attack. There’s just no getting around the fact that the Constitution includes a pardon power as, among other things, a check on judicial power.

Ramesh Ponnuru is a senior editor for National Review, a columnist for Bloomberg Opinion, a visiting fellow at the American Enterprise Institute, and a senior fellow at the National Review Institute.


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