Constitutional Basis

The President's pardon power is established under the United States Constitution, Article II, Section 2:

The President ... shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.

Although the original versions of the New York and Virginia Plans that provided the frameworks for debate at the Constitutional Convention included no provisions for pardon, revisions to both plans eventually did. Scholars have suggested that the basic idea, when presented, was not controversial and therefore prompted little debate. The Virginia Plan pardon clause, inserted by John Rutledge, lodged the pardon power with the new executive branch. Alexander Hamilton supported this strategy in Federalist 74, writing, 'It is not to be doubted, that a single man of prudence and good sense is better fitted, in delicate conjunctures, to balance the motives which may plead for and against the remission of the punishment, than any numerous body whatever.' Reflecting on recent American experience, he added that, 'in seasons of insurrection or rebellion, there are often critical moments, when a well-timed offer of pardon to the insurgents or rebels may restore the tranquility of the commonwealth.'

But how, if at all, should such a power be limited? A proposal introduced by Connecticut's Roger Sherman to make Presidential pardons subject to the consent of the Senate was considered but quickly rejected by the Convention (the Senate was deemed to be powerful enough already). So was Luther Martin's suggestion of confining pardons to convicted persons only; the Framers concluded that pre-conviction pardons might be useful to further national interests - immediately pardoning a captured spy, for instance, might produce yield important military intelligence. The Constitutional Convention did, however, agree that pardons could not be issued "in cases of impeachment"; this may have been prompted by concerns arising from a 17th century English constitutional crisis which had developed after King Charles II pardoned the Earl of Danby, Thomas Osborne, who had been impeached by Parliament.

With the single exception of impeachment, then, the pardon power emerged from Philadelphia as exclusive, broad, and unfettered by the regular checks and balances of the governmental structure.

See generally:

Shortly after President Gerald Ford痴 controversial pardon of Richard Nixon in 1974, then-Senator Walter Mondale of Minnesota proposed an amendment to the Constitution that would have added the following sentence to the pardon clause: "No pardon granted an individual by the President under section 2 of Article II shall be effective if Congress by resolution, two-thirds of the members of each House concurring therein, disapproves the granting of the pardon within 180 days of its issuance."

Since 1990 there have been at least two other attempts to amend the Constitution so as to limit, directly or indirectly, the existing pardon power of the President. In 1993, a member of the House of Representatives introduced a Resolution proposing the following language: "The President shall only have the power to grant a reprieve or a pardon for an offense against the United States to an individual who has been convicted of such an offense." The Resolution was referred to the House Judiciary Committee, which took no significant action. In 2000, the proposed Crime Victims Rights Amendment provided that a victim of crime or violence had the right "to reasonable notice of and an opportunity to submit a statement concerning any proposed pardon or commutation of a sentence". This language was strenuously opposed by officials of the U.S. Justice Department, who testified before Congress that it represented "an unprecedented incursion on the President's power to grant executive clemency requests".


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