12 Nov 2014

The President has been teasing the public about pardoning millions of illegal aliens through an Executive Order. Constitutionally, the President could in fact take this act.

Article II, Section 2, of the Constitution gives the President the power to pardon criminals for “offenses” against the United States. Politically, there could, and in my view there should, be a high price to pay for such recklessness and disregard of the public good, including impeachment. It is worth noting that the last time amnesty was granted, in 1986, it was done so by an act of Congress signed into law by President Reagan. That is far different than a unilateral act.

The political consequences are one thing. If the inability to understand the will of the voters in 2014 is insufficient to cause the amnesty proponents to reconsider, nothing we can say would alter that reality.

My focus here is the legal consequences of such a grand pardon-amnesty. The President is constitutionally free to pardon criminals who have violated federal laws. The President is also free to pardon thousands (and now perhaps millions) of criminals at once. In January 1977, Jimmy Carter pardoned all Vietnam War draft dodgers. President Washington pardoned convicts involved in the Whiskey Rebellion. President Lincoln pardoned Civil War deserters if they returned to their units. The precedent and the power exists to take this action. Once the proclamation of pardon is issued, then an accompanying Executive Order would be signed giving the implementing instructions to federal agencies.

Note, however, that the pardon power cannot create law. The President cannot grant citizenship through executive orders or pardons. He cannot give non-citizens the right to vote or access to free health care by executive order or pardons. Congress has the sole power to create substantive laws. Nor can he allow more illegal immigrants to come here tomorrow through the pardon power. In short, the President has no substantive lawmaking power—either under his pardon power or executive order power. His primary Constitutional instruction is to faithfully execute the laws Congress passes.

The power to pardon is the power to pardon up to a certain date (the date of the pardon) for certain specific illegal acts or crimes. President Carter did not, and could not, pardon all draft dodgers who would dodge a future draft in 10 or 20 years. President Clinton pardoned Marc Rich who was on the lam for tax fraud. But if Mr. Rich returned to the U.S. and then, after his pardon, again violated the tax laws, the earlier pardon would not prevent prosecution for subsequent violations. President Ford granted President Nixon a pardon prospectively—that is, prior to any charge or conviction, but it was based on any alleged crime committed up to that point. Ford did not issue a pardon for any future crimes not yet committed, nor could he. It is currently a crime to come to the United States without a visa. If a pardoned alien leaves the U.S. and returns illegally, that is still a crime and it would not be cleared by the earlier pardon.

It is not a crime, however, to remain here illegally. Remaining in the United States is a civil infraction, not a crime. President Obama could wipe all criminal acts clean—up to the date of the pardon, but there appears to be no basis to pardon non-criminal acts. The Supreme Court ruled long ago (1866) that you don’t have to be convicted to receive a pardon, but the action at issue is always criminal in nature. See Ex parte Garland (U.S. 1866). This is because the Constitution requires an “offense” against the United States, and an “offense” is criminal. It is generally accepted that deportation is not a criminal matter but a civil administrative matter.

There are three ways a visitor to this country can become an illegal alien. You can come here without authorization or inspection (walk across the border), you can stay longer than allowed after legal entry through a visa or border card, or you could violate the terms of your legal entry (i.e., here on a student visa but you never go to school). The reason this is important, in that there is some debate whether the President’s pardon power could apply to those who come here legally and simply overstay their visa.

For those that contend that the President can only pardon crimes (“offenses”), the estimated 40% of the illegals here that got here by overstaying a visa have not committed a “crime” but a civil infraction. (The Pew Hispanic Center estimated up to 50% of the illegal aliens in the United States overstayed their visas). The pardon power may not impact their status. Sneaking in is a crime; remaining here after your visa expires is a civil infraction. The President can only pardon criminal “offenses” against the U.S. which would, if estimates are correct, apply to 60% of the group of somewhere between 11 and 30 million.

The penalties for overstaying include certain time-bars, including being banned from the U.S. for a period of three years or ten years (all determinant on how long the person remained here unlawfully and other factors). Further, some illegal aliens have been deported once and came back. Congress has barred them from ever obtaining residency or a visa. If Obama issued a mass amnesty or pardon, since being barred from getting a visa or a green card is not a criminal matter, the pardon would have no impact in this category.

Assuming such a pardon is issued, the crime of entering illegally could be wiped clean. But those same aliens would still be remaining here illegally—that is, without a proper entry and visa. And that is still a civil violation subject to deportation. The President cannot issue visas or override the law governing visas and immigration. The President cannot issue prospective pardons. Thus, if one of the newly minted pardoned remains in the country the day after the pardon, or works in the country without the proper work visa, that is a civil violation subject to deportation.

This is no different than if a person was convicted of bank robbery 5 years ago (or, a better analogy, not convicted but did in fact rob a bank 5 years ago and could be convicted), a pardon could remove that act as a basis for criminal prosecution. But if you go out the next day and rob a bank, that’s a new crime, committed after the pardon. And since the President cannot issue blanket pardons for all future crimes, and he cannot pardon civil matters at all, the pardon becomes irrelevant the day after it is issued except no one goes to jail (and that is probably important to many, but it does not give millions of people a free pass to carry on here as they can still be deported).

In short, the President can pardon as many people as he wants for past crimes. He has no ability to issue a pardon for crimes yet to be committed or for civil infractions. Thus, the legal permanence of this pardon may be short-lived. The next day, each pardoned criminal would arguably be subject to civil removal and none of the millions would be citizens.

The net result is that in 2 years, with a new President who takes seriously the oath to faithfully execute the laws of the United States, all of those pardoned criminals would still be subject to removal, would still be illegal to hire, and would still not be citizens, would still not be lawful voters or lawful residents.