« David Barron and Martin Lederman on Congress' Power to Limit War
Michael Ramsey
| Main | Rob Natelson on Calling a Constitutional Convention
Michael Ramsey
»

09/13/2013

Andrew Hyman on Judge Kavanaugh on Prosecutorial Discretion
Michael Ramsey

Andrew Hyman writes:

Regarding Judge Kavanaugh's recent argument that the president can decline to prosecute due merely to disliking the policy that Congress has enacted, here are a few thoughts respectfully differing with that argument.

Judge Kavanaugh derives this unlimited prosecutorial discretion from the pardon power.  But he implicitly acknowledges that there are limits to the pardon power: "the President has absolute authority to issue a pardon at any time AFTER an unlawful act has occurred" (emphasis added).  Not BEFORE an unlawful act has occurred.  Indeed, under English law, the prerogative of the crown did not extend to pardon future offenses, and instead only covered past offenses.  The same is true here in the U.S.

This prohibition on pardons BEFORE an unlawful act has important implications for pardons that occur AFTER an unlawful act.  The most important implication is that a pardon cannot be justified by the mere fact that the President has a policy disagreement with a law; otherwise, there would be no reason to make the President wait until after an unlawful act has occurred to issue the pardon.  If the president could so easily justify a pardon after an unlawful act, then it would "hold out the prospect of impunity" as Alexander Hamilton wrote in the Federalist.

At the very least, it would be entirely proper for Congress to enact that no presidential pardon shall issue due merely to a presidential policy disagreement with the law in question.

I also disagree with Judge Kavanaugh that allowing the president an absolute power to dispense with criminal laws would enhance liberty; many criminal laws are designed to protect people from other people, and the liberty of the protected people would certainly be diminished if the president could simply decline to protect them (e.g. consider laws against rape, child abuse, et cetera).  As Vladimir Putin recently wrote in the New York Times, "The law is still the law, and we must follow it whether we like it or not."