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37 posts from July 2017


John Marshall on the Pardon Power
Michael Ramsey

Stephen Sachs comments:

Your post made me think of this Marshall passage from United States v. Wilson, 32 US 150 (1833):
Whether the pardon reached the less offence or not, the first indictment comprehended both the robbery and the putting life in jeopardy, and the conviction and judgment pronounced upon it extended to both. After the judgment no subsequent prosecution could be maintained for the same offence, or for any part of it, provided the former conviction was pleaded. Whether it could avail without being pleaded, or in any manner relied on by the prisoner, is substantially the same question with that presented in the second point, which is, "that the prisoner can, under this conviction, derive no advantage from the pardon, without bringing the same judicially before the court by plea, motion or otherwise."

The constitution gives to the president, in general terms, "the power to grant reprieves and pardons for offence against the United States."

As this power had been exercised from time immemorial by the executive of that nation whose language is our language, and to whose judicial institutions ours bear a close resemblance; we adopt their principles respecting the operation and effect of a pardon, and look into their books for the rules prescribing the manner in which it is to be used by the person who would avail himself of it.

A pardon is an act of grace, proceeding from the power entrusted with the execution of the laws, which exempts the individual, on whom it is bestowed, from the punishment the law inflicts for a crime he has committed. It is the private, though official act of the executive magistrate, delivered to the individual for whose benefit it is intended, and not communicated officially to the court. It is a constituent part of the judicial system, that the judge sees only with judicial eyes, and knows nothing respecting any particular case, of which he is not informed judicially. A private deed, not communicated to him, whatever may be its character, whether a pardon or release, is totally unknown and cannot be acted on. The looseness which would be introduced into judicial proceedings, would prove fatal to the great principles of justice, if the judge might notice and act upon facts not brought regularly into the cause. Such a proceeding, in ordinary cases, would subvert the best established principles, and overturn those rules which have been settled by the wisdom of ages.

Is there any thing peculiar in a pardon which ought to distinguish it in this respect from other facts?

We know of no legal principle which will sustain such a distinction.

A pardon is a deed, to the validity of which delivery is essential, and delivery is not complete without acceptance. It may then be rejected by the person to whom it is tendered; and if it be rejected, we have discovered no power in a court to force it on him.

It may be supposed that no being condemned to death would reject a pardon; but the rule must be the same in capital cases and in misdemeanours. A pardon may be conditional; and the condition may be more objectionable than the punishment inflicted by the judgment.

The pardon may possibly apply to a different person or a different crime. It may be absolute or conditional. It may be controverted by the prosecutor, and must be expounded by the court. These circumstances combine to show that this, like any other deed, ought to be brought "judicially before the court by plea, motion or otherwise."

More on Presidential Self-Pardons

David Weisberg responds to Andrew Hyman: 
I have argued that Pres. Trump has power, under the Constitution, to pardon himself.  Andrew Hyman takes the position  that the president has no such power.  I think his arguments are ill-founded.
Mr. Hyman argues that the use of the word “grant” in Art. II, Sec. 2—“The President…shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in cases of Impeachment.”—implies that the president cannot pardon himself, because a grant necessarily involves two people: a grantor and a grantee.  Therefore, the Constitution should be understood as not permitting the president to “grant” a pardon to himself.
In support of the idea that a valid grant necessarily involves two persons, Mr. Hyman refers to cases of real property conveyance.  He acknowledges that, even in the real property context, some courts have held that a grantor can be the same person as the grantee, but he apparently accepts a holding of the Colorado Supreme Court that “the general rule [is] that a grantor and grantee cannot be the same person for purposes of conveying property[.]”
The real property cases, I think, provide no helpful guidance for interpreting the word “grant” in the Pardon Power Clause.  In the real property context, a “grant” from Mr. A to Mr. A is inherently problematic because Mr. A is granting to himself something—i.e., a piece of property—that he already owns.  That is a puzzler.  But, in the context of the Pardon Power Clause, there is no analogous problem or puzzle: the president would be granting himself something—i.e., a pardon for federal offenses—that he most definitely does not already possess.  The two cases are, in that sense, entirely different.
Mr. Hyman asserts that the president could properly self-pardon if the Pardon Power Clause stated that the President “shall have Power to Pardon Offenses against the United States, except in Cases of Impeachment.”  But this formulation materially alters the plain meaning of the Clause, because it omits entirely reprieves, which the president is explicitly empowered to grant.  How would Mr. Hyman’s hypothetical clause read if it included reprieves?  It would be incoherent: the President “shall have Power to Reprieve and Pardon Offenses against …etc.”  But offenses aren’t reprieved; convicted criminals who have been sentenced to death are reprieved.  The word “grant”—or some close synonym like “issue”—must be used in the Clause if the president is to have the power to grant reprieves.
Finally, Mr. Hyman and others refer to the maxim that no one is permitted to be a judge in his or her own case.  This maxim is inapposite.  Granting a pardon is a political act; it is not a judicial act.  The validity of a pardon—e.g., the validity of a presidential self-pardon—is a question of law for the courts.  But the granting of a pardon is not a question of law and cannot be compelled or forbidden by the courts.  In granting a pardon to himself, the president would not be acting as a judge.  He would be acting as a pardoner.

Brianne Gorod on the Domestic Emoluments Clause
Michael Ramsey

Brianne J. Gorod at Take Care Blog: New White Paper on Trump and the Domestic Emoluments Clause. From the introduction:

Six months into Donald Trump’s presidency, the legal troubles faced by this President and his Administration appear to be growing on a daily basis.  While much of the current focus is, quite reasonably, on dealings between Trump’s campaign and his businesses and foreign governments, no one should forget that dealings between Trump’s businesses and governments here at home also raise serious legal questions.

As others and I discuss in a new white paper released today, the Domestic Emoluments Clause—which prohibits the President from receiving any “emolument” from “the United States, or any of them,” other than his fixed compensation from the federal government—is a critically important provision in our Constitution.  And its implications for Trump and his businesses are significant.

When the Framers drafted the Constitution, they were deeply concerned about the corrosive and destructive effects that corruption could have on the young nation.  On one hand, the Framers were concerned with foreign nations and how they might try to meddle in the nation’s internal affairs—hence, their adoption of the Foreign Emoluments Clause and its prohibition on federal officials accepting benefits from foreign governments without first obtaining the consent of Congress.  On the other, they were also deeply worried about corrupting forces within the nation itself.  And with good reason: their experience under British rule had taught them how leaders could be tempted to put their own interests above the interests of the people they were supposed to serve.


The President May Not "Grant" Himself a Pardon
Andrew Hyman

Can the President of the United States pardon himself or herself? This has been the subject of much recent discussion, including here at the Originalism Blog where Mike Ramsey and also Mike Rappaport both leaned a bit toward “no” for different reasons.  I agree that the answer is no, but for a reason that is different from any I have seen written about at this blog or elsewhere.

Before addressing the difficult question of whether the President can pardon himself, let’s get the easy issue out of the way: he can be pardoned by the Vice-President. Section three of the Twenty-Fifth Amendment is very clear about this. It says that the powers of the presidency, including the pardon power, devolve upon the Vice-President whenever the President decides to voluntarily take a break from the office by becoming unavailable. During that period, the Vice-President would be free to pardon the President, and then the President could take back the reins of the presidency. This understanding of vice-presidential power has been explicitly endorsed by the executive branch since 1974, if not earlier. The New York Times also mentioned it favorably a few days ago.

But now suppose the President would like to pardon himself, perhaps because the Vice-President does not want to do it, or in order to spare the Vice President the sort of stigma that befell Gerald Ford when he pardoned Richard Nixon. The idea of a self-pardon is not absurd at all. In England, the King could not be charged with crimes nor be impeached, and so it would have made sense for the authors of the U.S. Constitution to limit that immunity---without entirely destroying it---by making the President subject to impeachment, as well as subject to prosecution and conviction under state law, while still allowing the President to pardon himself for violations of federal law. That may seem like an obnoxious concept, but it would offer a President substantial protection from prosecution by an overzealous and vengeful successor President, and would also protect the President from statutes that impose criminal penalties for official presidential acts(this link shows Ohio Senator and future SCOTUS Justice Stanley Matthews suggesting a self-pardon power).  So the notion is plausible, but of course that does not mean that the Constitution allows it, and I do not think it does.  

The Supreme Court stated in the 1974 case of Schick v. Reed that “We therefore hold that the pardoning power is an enumerated power of the Constitution and that its limitations, if any, must be found in the Constitution itself.” This is a reasonable rule of interpretation. The Constitution itself says that the President “shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” I believe the key word here is not "pardon" but rather the word "grant" which means to agree to give or allow something requested, or to give something from a grantor to a grantee.  The strong implication is therefore that two people are involved in a grant.  Whereas it was a common concept in 1789 to forgive one's self for wrongdoing, it was not common in 1789 to say that one grants something to one's self.  This is apparently why no one in the late 1780s so much as hinted that a president could grant a pardon to himself, despite considerable public discussion about the pardon power (e.g., according to George Mason’s widely published "Objections to the Constitution", “The President of the United States has the unrestrained power of granting pardons for treason, which may be sometimes exercised to screen from punishment those whom he had secretly instigated to commit the crime, and thereby prevent a discovery of his own guilt”). 

It is true that on several occasions courts have said that a grantor and grantee may be the same person, but generally speaking this must be affirmatively stated by positive law.  For example, in a 2004 case, the Colorado Supreme Court said, “The [lower] court also noted that Taylor's conveyance to himself was contrary to the general rule that a grantor and grantee cannot be the same person for purposes of conveying property….[But,] section 38-31-101 expressly allows the owner of property to become both the grantor and the grantee for purposes of establishing a joint tenancy. This concept directly conflicts with the four unities doctrine and the notion that one could not be a grantor and a grantee.”

Regarding the ancient principle that no one can be a judge in his own case, I agree with Mike Ramsey that this was a common law principle applicable to various judicial proceedings, and was not applicable in executive and legislative proceedings.  And I agree with Mike Rappaport that the idea of a royal self-pardon against criminal process would not necessarily have been nonsensical, because "perhaps the King still had this power, but it was simply unnecessary to use."  Even if it was nonsensical in England, I think a self-pardon might well have made sense in the U.S. Constitution if the clause in question had said something like the President “shall have Power to Pardon Offenses against the United States, except in Cases of Impeachment.”  But the clause does not say that, and instead uses the word "grant" which implies that two people are involved: a grantor and a grantee.  The old English legal lexicographer Giles Jacob wrote in 1729 that requisite to every good grant is that there is agreement and acceptance of the thing granted, between grantor and grantee, which again implies that two people are involved.  Not one.

Abbe Gluck: Justice Scalia’s Unfinished Business in Statutory Interpretation
Michael Ramsey

Abbe R. Gluck (Yale Law School) has posted Justice Scalia’s Unfinished Business in Statutory Interpretation: Where Textualism’s Formalism Gave Up (Notre Dame Law Review, Vol. 92, No. 5, 2017) on SSRN. Here is the abstract:

Justice Scalia, in the end, was no interpretive formalist. He would not be pleased to hear this claim, but the fact is that formalism has not succeeded in statutory interpretation, and in fact, the textualism that Justice Scalia deserves so much credit for creating never really embraced formalism at all.

Textualism lacks all the conditions necessary for formalism. It does not have a defined set of predictable rules ordered to ensure objective application. Instead, we have more than one hundred interpretive presumptions — the presumptions favored by textualists — with no defined method of choosing among them. These doctrines of the field are not treated as precedent or even as law that a higher court or Congress is entitled to make. Instead, they occupy the unique status of being viewed as inherently personal to the individual judge, a status not shared by any other doctrines applied by Article III courts. The doctrines do not have a theorized jurisprudence that legitimates their source, ties them to a sovereign lawmaking power, or even indicates where the rules come from. Justice Scalia himself was never willing to admit that many canons — including ones he himself invented — are judicial creations, and hence, federal common law; to the contrary, he argued that treating them as common law might be unconstitutional.

Justice Scalia’s incomparable contributions to statutory interpretation deserve great recognition. But even though his successful effort to create the modern field was ostensibly grounded in the rule of law, he either never really wanted formalism to succeed, or did not fully appreciate its implications. What would it take to make statutory interpretation truly formalist? Why did Justice Scalia’s vision fall short? Answering these questions is essential to understanding his legacy, what textualism really is, and what he wanted it to be.

At Legal Theory Blog, Larry Solum says: "Highly recommended.  Download it while it's hot!"


David Weisberg on Presidential Self-Pardons
Michael Ramsey

David Weisberg comments:

The question whether the president could pardon himself must be answered in the affirmative, because if the Framers intended to exclude such pardons they could have very easily included the requisite language in the Constitution.  “[H]e shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.”  Delete the period and add: “and in Cases in which he himself is accused of such an Offense.”  If that’s what they meant, why isn’t that what they wrote?
To argue that the president can’t pardon himself because it would make no sense for a king (who was not subject to the criminal law at all) to pardon himself is to overlook one supremely important fact: in creating the presidency, the Founders were very deliberately not creating a monarchy.  A monarchy is something they were striving to avoid, not to replicate.  Therefore, the fact that a king in some sense could not pardon himself tells us, I think, nothing about what the Founders intended with regard to the president’s pardon power.  Again, why didn’t they include the appropriate language in the document itself?
Note:  At NRO, Andy McCarthy and Michael Stokes Paulsen reach similar text-driven conclusions.

Lochlan Shelfer: How The Constitution Shall Not Be Construed
Michael Ramsey

Lochlan Shelfer (Independent) has posted How the Constitution Shall Not Be Construed (Brigham Young University Law Review, Vol. 2017, No. 2, 2017) to SSRN. Here is the abstract:

The dominant historical narrative of the Ninth Amendment views the Clause as an exclusively “Federalist” provision with one purpose: to protect against the fear among Federalists that the very enumeration of any rights in a Constitution would imply that the universe of unenumerated natural rights was left unprotected, or that federal power would be expanded by implication.

This narrative of the Ninth Amendment, however, is incomplete in that it ignores the Clause’s Anti-Federalist side. This Article argues that the Ninth Amendment was proposed and ratified partly in response to the Anti-Federalist fear that particular rights-guaranteeing provisions of the Constitution could be used, by means of negative implication, to deny the existence of analogous or functionally similar rights. Thus, the Ninth Amendment instructs readers not to interpret particular words or clauses in the Constitution to imply that similarly situated, analogous, or functionally similar rights are therefore left unprotected. This history suggests that, contrary to the arguments of a number of Ninth Amendment scholars, the Ninth Amendment applies to procedural and positive rights, in addition to natural rights, and the Ninth Amendment instructs readers how to interpret particular words of the Constitution, and not just the fact of the enumeration of rights.


Can the President Pardon Himself?
Mike Rappaport

Recently, the question whether the President can pardon himself has been in the news.  I have always found that to be a difficult question.  But unfortunately the framing of the question these days often leads people to misunderstand the issue.

The Pardon Clause provides the President “shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.”  Defenders of the view that the President can pardon himself argue that there is no limitation on the pardon power in the text of the Constitution.  They further argue that the explicit exception for cases of impeachment shows that no other exceptions are allowed.

This textual argument is then contrasted with a nontextual argument against presidential self pardons.  For example, Laurence Tribe, Richard Painter and Norman Eisen argue that the traditional common law principle that no person may be a judge in their own case shows that the pardon power does not cover self pardons.  But this principle does not appear to be in the constitutional text.  So we are left with an apparent dispute between a strong (or hyper) textualism and an apparent non-textualism.

In my view, this is not really the issue.  Let’s start again.  The textual argument in favor of self pardons assumes that the pardon power means the “power to pardon any person.”  But it is not clear that it does.  If one wants to understand the pardon power, the first place to look is the pardon power under the English law that the colonists inherited and that the Framers took as the precursor to American law.

Could the King pardon himself?  That is a hard question.  On the one hand, it appears that the King was thought to be immune from legal process and therefore the power to self pardon was unnecessary.  On the other hand, perhaps the King still had this power, but it was simply unnecessary to use.  Since it is not obvious which of these understandings is correct, the pardon power is unclear.  Thus, the question isn’t one of text versus non-text, but of what the text, which was based on historical terms, meant.

Moreover, it is even possible the apparently non-textual principle “that no person may be a judge in their own case” might be relevant.  Suppose that the pardon power might have had two meanings – one where the King could self pardon and one where he could not.  In choosing between the two meanings, it is perfectly legitimate to consider a well-accepted common law principle.  Such principles were used at the time of the Framing to resolve ambiguities.  This principle may even have wider application.  If it was unclear what the pardon power meant – there were not two distinct usages, but just a lack of clarity about what the power meant as to the issue of self pardons – then it is likely that an interpretive rule also allowed a traditional principle to resolve the uncertainty.

After writing most of this post, I came upon Mike Ramsey’s post on the same issue.  I was very happy to see that Mike had a very similar take upon the matter.  It is good to see that modern originalist analysis has a core.

Jill Wieber Lens: Justice Thomas, Civil Asset Forfeitures, and Punitive Damages
Michael Ramsey

Jill Wieber Lens (Baylor University - Law School) has posted Justice Thomas, Civil Asset Forfeitures, and Punitive Damages on SSRN. Here is the abstract:

For centuries, governments have used civil asset forfeiture laws to seize property used in criminal activity and then use civil proceedings to take ownership of that same property. Forfeitures have caught the attention of media, John Oliver, and the Supreme Court. In March, because of waiver, the Supreme Court denied certiorari in Leonard v. Texas, a case that claimed Texas’s civil forfeiture laws violated due process. Justice Thomas agreed with the denial, but wrote separately to question the constitutionality of civil forfeiture laws. The Court has always held civil asset forfeitures to be constitutional because of their long existence, and now Justice Thomas, the originalist, seems ready to disregard that history.

This Essay is the first to note the seeming inconsistency in Justice Thomas’s applications of originalism to two civil punishments—civil forfeitures and punitive damages. Justice Thomas seems eager to re-evaluate the constitutionality of civil forfeitures despite their long history. Justice Thomas has never, however, publicly entertained the possibility that history does not justify the constitutionality of punitive damages. No obvious reason exists to explain the distinction.

The Essay also generally examines the similarities between civil forfeitures and punitive damages, and cautions that even with Justice Thomas’s vote, any enthusiasm that the Court will find civil forfeitures unconstitutional should be tempered. The Court—minus Justice Thomas—eventually defined some constitutional limitations for the civil imposition of punitive damages, but little reform resulted until legislatures got involved.


Evan Bernick on "Understanding the Fiduciary Constitution" by Lawson and Seidman
Michael Ramsey

At the Library of Law and Liberty, Evan Bernick: Getting to the Essence of the Constitution (reviewing A Great Power of Attorney”: Understanding the Fiduciary Constitution, by Gary Lawson and Guy Seidman).  From the introduction:

Gary Lawson and Guy Seidman’s important new book, “A Great Power of Attorney”: Understanding the Fiduciary Constitution, seeks to explain what the Constitution of the United States is. ...

As one might guess from the title, Lawson and Seidman find that the Constitution is a fiduciary document—a legal instrument, familiar in private law, that empowers one person (the fiduciary) to control or manage the assets or legal interests of another (the beneficiary or beneficiaries) in order to promote the latter’s interests. As private law imposes a stringent set of duties on fiduciaries to protect beneficiaries against abuses of discretion, so the Constitution imposes similar duties upon government officials who are empowered to act on behalf of “We the People.” When James Iredell described the Constitution as a “great power of attorney” at the North Carolina ratifying convention in 1788, he was offering not merely an attractive analogy but an interpretive key to the document that he hoped would become the law of the land.

The implications of Lawson and Seidman’s conclusion are profound. But let me start by summarizing their empirical evidence before tracing some of the implications their conclusion has for constitutional meaning.

Most of the book is taken up with organizing the evidence that the coauthors (together with Robert Natelson, their frequent collaborator) have been amassing for years and have set forth in numerous articles and one book focusing on the fiduciary roots of the Article I’s Necessary and Proper Clause.  Lawson and Seidman begin by detailing the contours of fiduciary relationships and documents during the late 18th century. They then discuss how fiduciary principles were used by Americans to conceptualize the relationship between legitimate governments and their citizens. Then they move to the Constitution itself, specifying the ways in which its content and structure reveal its character as a fiduciary document. Lastly, they sketch how the various duties that attached to fiduciaries might be applicable to governmental actors under “this Constitution.”

And in conclusion:

Professor Randy Barnett and I have drawn upon the work of Lawson, Seidman, and Natelson to articulate a theory of good-faith constitutional construction that we plan to flesh out in a series of articles (and projected book.)  As the term “good faith” suggests, our theory is informed by fiduciary theory.

We argue that constitutional actors have a duty to follow their constitutional instructions in good faith, and to forebear from exercising their discretion under the Constitution’s letter (its text, consisting in its original public meaning) to undercut its original spirit (understood as the function or functions that a hypothetical member of the public would have reasonably understood particular provisions to serve). When constitutional actors cannot arrive at a determinate answer through interpretation, we argue that they should turn to the spirit of the relevant text to construct a rule that resolves the question at hand. I do not mean to suggest that Lawson, Seidman, or Natelson would agree with our approach—only to indicate the possibility that fiduciary theory could guide construction as well as inform interpretation.

The authors of “A Great Power of Attorney” are at pains, as I said, to disclaim any intention but that of shedding some light upon the meaning of an old document. What they have done is demonstrate to the satisfaction of this reviewer that it would be careless indeed for anyone who thinks and writes seriously about the Constitution’s meaning to neglect its character as a fiduciary instrument that creates a fiduciary government. That is a great achievement in and of itself.

(Thanks to Andrew Hyman for the pointer).