Pardon Power: The Executive Cornerstone of the Separation of Powers

Abstract

This study investigates the under recognized procedural and administrative properties accompanying grants of presidential pardon. Of all the Article II powers vested in the executive branch, pardoning authority confers the president with the most administrative and procedural liberties. Procedural and administrative properties like single-branch control, rearward application, discretionary design, statute interposition, and binding directive parallel those similarly exhibited by Congress and the Supreme Court. These properties are inherent to the pardon power and are tacitly acknowledged by federal court opinions upholding this constitutional authority as a whole. Executive clemency’s notable scholars and critics alike see it solely for its mercy dictate, not for the procedural and administrative benefits it can give the president. Once identified, each pardon property will be compared to Congress and the Supreme Court’s respective procedural attribute. These comparisons will make evident the equivalent administration of duties among the executive branch and its constitutional counterparts. Moreover, these comparisons will be considered in the reform settings of those critical of the pardon’s already sweeping and permanent nature. The primary objective of the critics’ reforms is to bring transparency to the pardoning process. But their efforts to reform and rid the pardoning process of abuse simultaneously impair the procedural advantages it can offer the president. Historical and contemporary grants of clemency confirm this argument’s perspective of pardon. Virtually all reforms would structurally vitiate one or many of the mentioned pardon properties. If their reforms are enacted, the president can no longer be considered a procedural or administrative coequal in relation to Congress and the Supreme Court. Therefore, the president’s policy lever of clemency must remain untouched.