The power to pardon needs to be removed all together. All it does is show that the President overrides the department of justice. How anyone ever thought this should be a thing, I have no idea.
The power to pardon needs to be removed all together. All it does is show that the President overrides the department of justice. How anyone ever thought this should be a thing, I have no idea.
I think a congressional pardon power to allow national leniency on previously accepted sentences that are now viewed as unjust might be worth holding onto. It being such a casual presidential power has made it ripe for corruption for a long time but I would weigh that with civil rights era pardons for sham trials - I think we do still need a national sanity check relief valve for local injustices.
And the dysfunction of congress probably works in our favor here since pardons should be exceptional - not routine. A routine pardon is just a demonstration of the justice department failing at a systemic level.
> I think a congressional pardon power to allow national leniency on previously accepted sentences that are now viewed as unjust might be worth holding onto.
That sounds like a perfectly reasonable thing to do. For the branch of government in charge of making and changing laws.
It sounds more fit for the branch of government in charge of enforcing the laws. Specifically, with laws that are made by the branches responsible for making/changing them, which would be ridiculous on their face.
If the branch responsible for making and changing laws was also responsible for the reversion of enforcing those laws - effectively what a pardon is - then there's absolutely no check on gratuitous law being passed.
> If the branch responsible for making and changing laws was also responsible for the reversion of enforcing those laws - effectively what a pardon is - then there's absolutely no check on gratuitous law being passed.
I mean, it is a normal thing for a legislature to remove and amend old laws. That's not "a check," but it's a normal part of what it means to be a legislature. You're not just appending new laws, you're maintaining the entire set of laws.
And as for checks, judicial review is the obvious one.
I heard the intention was that sometimes it's against the public good to prosecute some people even though they have comitted crimes. Good examples of it being used as intended was pardoning the perpetrators of the whiskey rebellion, the confederate army, vietnam draft dodgers and more controversially, Nixon. I guess it's also intended in cases where obvious miscarriages of justice have been committed. It made sense in 1785 or whenever but along with lots of the rest of the constitution it's long obsolete and has been twisted, stretched and mangled into a hideous caricature of itself over the centuries.
How hard can it be to specify that pardons can be given by a committee of 25 randomly selected individuals with an Ivy league education when at least 2/3 is in favor with no existing financial ties and no information regarding the identity of whoever's fate is at stake?
Right, not hard at all, but apparently whoever wrote the Constitution was a fucking moron.
I think you're onto something, for a kind of second-chance review function, but instead of "with an Ivy League education", perhaps you most want people knowledgeable about both judicial process and society.
"Ivy League education" isn't a totally bad predictor, but it's going to be very biased towards people with privileged socioeconomic backgrounds, who therefore may have blind spots of aspects of society that apply to the situation. (No matter how many books they've read, classes they've taken, years of volunteering with the less-advantaged they've done, and hours of NPR they've listened to.)
The US Constitution wasn't written with the wellbeing of random ordinary citizens in mind. You could argue it was the exact opposite in fact.
More importantly it was written under the assumption that political elites would understand and act against the risk of electing a broken demagogue.
But alas, the modern GOP’s cravenness beggars belief.
> The power to pardon needs to be removed all together. All it does is show that the President overrides the department of justice.
The Department of Justice is subordinate to the President as part of the executive branch with or without the pardon power; if you want something other than "the President overrides the Department of Justice" as a matter of Constitutional law rather than an intermittently-observed convention of restraint (which Trump absolutely has not observed outside of the pardon power), you need a fundamental reformation of the Constitutional structure of government, far beyond the elimination of the pardon power.
While it’s true that the Department of Justice sits within the executive branch, the assertion that it is simply “subordinate” to the President - functioning as his personal legal arm - is an oversimplification that misses both the design and evolution of constitutional governance. The President does not have unlimited authority over the DOJ. The DOJ’s powers are exercised pursuant to laws enacted by Congress, and its officials - especially the Attorney General and U.S. Attorneys - swear oaths to uphold the Constitution, not to serve as personal agents of the President’s will.
The Supreme Court has repeatedly affirmed that while the President may remove executive officers, he cannot lawfully direct them to commit acts that are unconstitutional, obstruct justice, or violate statutory mandates. The constitutional structure also relies on normative independence - a separation within the executive branch that maintains rule of law. This is not a “convention of restraint” but an operational necessity derived from the Take Care Clause (“he shall take Care that the Laws be faithfully executed”). That clause doesn’t mean “whatever the President says is law”; it means the President must ensure that the law itself is enforced faithfully, even when doing so constrains his own interests.
Finally, while the pardon power is broad, it’s not the linchpin of executive authority over the DOJ. Removing or limiting that power wouldn’t change the fact that the DOJ’s prosecutorial discretion must still be exercised consistent with law, ethics, and constitutional constraints - not simply the President’s personal preferences. Our system is not designed for a monarch with “absolute control” over prosecutions. It’s designed for a chief executive bound by law and accountable through oversight, impeachment, and ultimately, the electorate.
> While it’s true that the Department of Justice sits within the executive branch, the assertion that it is simply “subordinate” to the President - functioning as his personal legal arm - is an oversimplification that misses both the design and evolution of constitutional governance.
The idea of the republic as opposed to a monarchy is that no part of the government is anyone's personal...well, anything...but that doesn't really negate the degree of control the President exercises, both in theory and in practice barring highly variable personal restraint, over the DoJ.
> The Supreme Court has repeatedly affirmed that while the President may remove executive officers, he cannot lawfully direct them to commit acts that are unconstitutional, obstruct justice, or violate statutory mandates.
That doesn't mean the President doesn't override the DoJ, it means the President doesn't override the law.
> The constitutional structure also relies on normative independence - a separation within the executive branch that maintains rule of law.
Yes, that it relies on this but does not actually provide any mechanism by which it can effectively be assured is the fundamental design issue I am referring to being necessary to address if one wants "the President overrides the DoJ" not to be a simple fact independently of whether or not the pardon power exists and is vested in the President's discretion.
> Finally, while the pardon power is broad, it’s not the linchpin of executive authority over the DOJ.
I literally said that the pardon power is irrelevant to that, which is the exact opposite of describing it as the lynchpin.
> Removing or limiting that power wouldn’t change the fact that the DOJ’s prosecutorial discretion must still be exercised consistent with law, ethics, and constitutional constraints - not simply the President’s personal preferences.
To the extent that is true, that is only a negative constraint on prosecution applied by the courts, it can never compel a prosecution that the executive has declined. (Congress, of course, could punish the President for preventing prosecutions, via the impeachment power, but that’s hardly a substitute for real independence from the President of all or part of the prosecutorial power if that is what is desired. Or, for that matter, much of a remedy at all if more than 1/3 of the Senate is on board with the President's conduct.
The de facto absolute Presidential authority over DoJ stems from two powers:
1. The ability to dismiss the Attorney General at will (alternative: Congress)
2. The ability to pardon at will (alternative: Congress)
Remove those two Presidential powers, and the DoJ becomes much more independent.
Imho, the DoJ side of the judiciary branch is important enough to the separation of powers that this should have been done a long time ago.
The Attorney General should be elected, like most of the state AGs are. An elected AG with the DoJ underneath them would be much more independent.
A fragmented executive power, like most states have, does solve problems stemming from the unitary executive, but also increases the difficulty of ascribing responsibility for bad outcomes whose source isn't exclsuviely in one bailiwick, complicating effective democratic accountability.
You could probably make a good case that doing this for just the AG is still a good thing.
(Of course, federally, that becomes both a major Constitutional change and raises the question of how they would be elected? The same Electoral College that elects the President? A separate electoral college? Direct election unlike the President? Of course, the first problem is one with any means of making the DoJ independent of Presidential control.)