Financial Constraints on the Pardon Power?

Mark proposes that Congress limit the president’s ability to pardon Scooter Libby by limiting his ablity to use Congressionally appropriated funds for that purpose. He argues that this position is consistent with the framers’ intent, because they were “Whigs.” This is a defensible position, but both on the basis of original intent and a larger understanding of the structure of the constitution, I think it’s wrong.

While by no means foolproof evidence of original intent, Federalist #74, where the pardon power is discussed in greatest detail, is probably the best place to start. Hamilton states that:

Humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed. The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel. As the sense of responsibility is always strongest, in proportion as it is undivided, it may be inferred that a single man would be most ready to attend to the force of those motives which might plead for a mitigation of the rigor of the law, and least apt to yield to considerations which were calculated to shelter a fit object of its vengeance. The reflection that the fate of a fellow-creature depended on his sole fiat, would naturally inspire scrupulousness and caution; the dread of being accused of weakness or connivance, would beget equal circumspection, though of a different kind. On the other hand, as men generally derive confidence from their numbers, they might often encourage each other in an act of obduracy, and might be less sensible to the apprehension of suspicion or censure for an injudicious or affected clemency. On these accounts, one man appears to be a more eligible dispenser of the mercy of government, than a body of men.

At the very least, this suggests that the Framers were not universally embarassed by the pardon power. And I don’t think the issue is whether Congress was less powerful than parliament, as Mark suggests. Parliament had developed some specific powers to constrain the Crown that were quite considerable, but they did so from the starting point of an extraordinarily strong executive. The Framers started out from the assumption of a very strong legislature and were quite concerned to develop an executive power could effectively check it. That is, esp. after the failure of the Articles of Confederation, the founders knew that they were in a different circumstance from that facing the British Whigs. Consider finally Hamilton’s concern for the dangers to liberty that could come from the whims of the people:

It is a just observation, that the people commonly intend the PUBLIC GOOD. This often applies to their very errors. But their good sense would despise the adulator who should pretend that they always reason right about the means of promoting it. They know from experience that they sometimes err; and the wonder is that they so seldom err as they do, beset, as they continually are, by the wiles of parasites and sycophants, by the snares of the ambitious, the avaricious, the desperate, by the artifices of men who possess their confidence more than they deserve it, and of those who seek to possess rather than to deserve it. When occasions present themselves, in which the interests of the people are at variance with their inclinations, it is the duty of the persons whom they have appointed to be the guardians of those interests, to withstand the temporary delusion, in order to give them time and opportunity for more cool and sedate reflection.

The presidency was designed in large part to be a check on the people’s respresentatives in Congress–where they thought the real power and authority would reside–while the English parliament developed powers primarily to check a powerful executive. The fact that the English parliament developed certain very substantial powers does not mean that those should be considered the baseline for American experience.

Finally, I have to say I think it very bad form to constrain the president’s few unilateral powers through the power of the purse. The pardon power, as suggested by the quote above from Hamilton, exists for a very good reason. Pardoning Libby is, I suspect, a significant abuse of the pardon power, but it IS a discretionary power. One very important reason for it to exist is precisely to protect individuals against the danger of a judiciary possessed of excessive zeal, or vindictive juries. Neither Mark nor I think that this is the case here, but by setting a precedent for Congress to through a spanner in the works when the president performs his constitutionally granted power of the pardon, we will have created a dangerous precedent. Not only that, as Mark’s lawyer-friend notes, there will certainly be unintended consequences for individuals who are not really the target of Mark’s ire in this case.

There are only two significant checks on the president’s pardon power. First, exposure. Clinton’s pardon of Mark Rich had a very strong, if perhaps short-term, impact on his popularity. It is wholly legitimate for members of Congress to state in the strongest possible terms their belief that Libby does not deserve a pardon. Second, impeachment. A president who flagrantly abuses the pardon power can be removed from office. I don’t get a sense from anything I’ve read that the framers anticipated any other checks on this extraordinary, but also necessary, power.

Author: Steven M. Teles

Steven Teles is a Visiting Fellow at the Yale Center for the Study of American Politics. He is the author of Whose Welfare? AFDC and Elite Politics (University Press of Kansas), and co-editor of Ethnicity, Social Mobility and Public Policy (Cambridge). He is currently completing a book on the evolution of the conservative legal movement, co-editing a book on conservatism and American Political Development, and beginning a project on integrating political analysis into policy analysis. He has also written journal articles and book chapters on international free market think tanks, normative issues in policy analysis, pensions and affirmative action policy in Britain, US-China policy and federalism. He has taught at Brandeis, Boston University, Holy Cross, and Hamilton colleges, and been a research fellow at Harvard, Princeton and the University of London.