Article II, Section 2, Clause 1:

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

Amnesty is essentially identical to pardon in ultimate effect, with the principal distinction between the two being that amnesty typically “is extended to whole classes or communities, instead of individuals[.]” 1 As with other forms of clemency, amnesty may be partial or conditional.2 Among others, prominent examples of amnesty ocurred during and after the Civil War and the Vietnam War. For instance, Presidents Abraham Lincoln and Andrew Johnson issued a series of proclamations offering and ultimately granting amnesty to those who participated in the Civil War on the side of the Confederacy,3 and the Supreme Court decided several cases addressing the implications of such amnesty for property seized by statute.4 Beyond the Civil War, a more recent historical example of amnesty came in the 1970s, when President Jimmy Carter granted amnesty to many who violated the Selective Service Act by evading the draft during the Vietnam War.5

Footnotes

1

Knote v. United States, 95 U.S. 149, 153 (1877); see id. (indicating that distinction between the two terms “is one rather of philological interest than of legal importance” ); Brown v. Walker, 161 U.S. 591, 601–02 (1896) (dismissing any “distinction between amnesty and pardon” as “of no practical importance” and describing amnesty as “a general pardon for a past offense” that “is rarely, if ever, exercised in favor of single individuals, and is usually exerted in behalf of certain classes of persons, who are subject to trial, but have not yet been convicted” ). In Burdick v. United States, the Court suggested that there are other “incidental differences of importance” between pardon and amnesty, including that amnesty “overlooks offense” rather than “remit[ting] punishment” and is “usually addressed to crimes against the sovereignty of the state, to political offenses, deemed more expedient for the public welfare than prosecution and punishment.” 236 U.S. at 95.

2

See Semmes v. United States, 91 U.S. 21, 26 (1875) (describing proclamation of amnesty with certain exceptions and recognizing that property at issue fell “within [an] exception contained in that proclamation; which is all that need be said upon that subject” ).

3

See United States v. Klein, 80 U.S. 128, 139–41 (1871) (tracing series of proclamations and ultimate grant of amnesty).

4

See United States v. Padelford 76 U.S. 531, 543 (1869) (holding that amnesty covering offenses connected with the rebellion operated as “a complete substitute for proof that [the recipient] gave no aid or comfort” to the same and that “he was purged of whatever offence against the laws of the United States he had committed . . . and relieved from any penalty which he might have incurred” ); see also Armstrong v. United States, 80 U.S. 154, 155–56 (1871) (ruling amnesty for participation in rebellion entitled claimant to proceeds of property under Abandoned and Captured Property Act); Pargoud v. United States, 80 U.S. 156, 157 (1871) (same); but cf. Knote, 95 U.S. at 154 (holding that amnesty for participation on the side of the Confederacy did not entitle a recipient to claim monies from property seized and paid into the Treasury, as pardons and amnesties “cannot touch moneys in the treasury of the United States, except expressly authorized by act of Congress” ); Hart v. United States, 118 U.S. 62, 67 (1886) ( “[N]o pardon could have had the effect to authorize the payment out of a general appropriation of a debt which a law of congress had said should not be paid out of it.” ). For the Court’s treatment of Congress’s subsequent effort to prevent pardon recipients from taking advantage of the restoration procedures under the Act, in Klein, see ArtII.S2.C1.3.8 Congress’s Role in Pardons.

5

See Exec. Order No. 11967, 42 Fed. Reg. 4393 (Jan. 21, 1977).