Constitutional Law

Is president's pardon power unlimited? Arpaio pardon raises unusual issue

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Updated: President Donald Trump on Friday night pardoned former Maricopa County, Arizona, Sheriff Joe Arpaio, who was found guilty of contempt last month for violating a federal judge’s order to stop immigration arrests.

An Arpaio pardon could be challenged in court—and there are some good arguments in favor of blocking it, according to a New York Times op-ed by Northwestern law professor Martin Redish.

His argument: Arpaio was convicted for violating constitutional rights in defiance of a court order involving racial profiling. Courts seeking to stop constitutional violations can only enforce their orders through injunctions, with the threat of contempt for noncompliance. A pardon by Trump signals to government agents that they could be pardoned for violating a judicial injunction that blocks the president’s policies, circumventing the only effective means of enforcing constitutional restrictions on his behavior. And that implicates the due process clause.

“I am not suggesting that the pardon power itself provides for a due process exception,” Redish writes. “To the contrary, on its face the pardon power appears virtually unlimited. But as a principle of constitutional law, anything in the body of the Constitution inconsistent with the directive of an amendment is necessarily pre-empted or modified by that amendment. If a particular exercise of the pardon power leads to a violation of the due process clause, the pardon power must be construed to prevent such a violation. …

“If the president can immunize his agents in this manner, the courts will effectively lose any meaningful authority to protect constitutional rights against invasion by the executive branch. This is surely not the result contemplated by those who drafted and ratified the Fifth Amendment, and surely not the result dictated by precepts of constitutional democracy.”

Redish acknowledges he is presenting “a novel theory” and many scholars argue the only possible redress for such a pardon would be impeachment.

Updated at 9 a.m. on Aug. 28 with Trump having pardoned Arpaio.

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