ArtII.S2.C1.3.8 Congress's Role in Pardons

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.

The Supreme Court has recognized that Congress cannot substantively limit the effect of a pardon through legislation. In Ex parte Garland, the Court held that the power of the President to pardon “is not subject to legislative control. Congress can neither limit the effect of his pardon, nor exclude from its exercise any class of offenders. The benign prerogative of mercy reposed in him cannot be fettered by any legislative restrictions.” 1 In United States v. Klein, the Court voided a law that sought to bar the use of a pardon or amnesty as a substitute for proof of loyalty necessary to recover property abandoned and sold by the government during the Civil War.2 The Klein Court held that the provision was an impermissible attempt to change the effect of pardons by requiring courts to “treat them as null and void,” i.e., to “disregard pardons . . . and to deny them their legal effect.” 3 Over a century after Klein, in rejecting the proposition that a condition attached to clemency must be authorized by statute, the Court in Schick v. Reed reaffirmed that “the power [of clemency] flows from the Constitution alone, not from any legislative enactments, and . . . it cannot be modified, abridged, or diminished by the Congress.” 4

Despite the Supreme Court’s rigid view of the limits of legislative authority over pardons, Congress may have a role to play in exercise of the pardon power through other legal and constitutional processes. For instance, there is historical precedent for Congress facilitating exercise of the power by funding positions in the Department of Justice to assist in considering clemency petitions.5 The Court in The Laura also upheld a statute vesting in a subordinate officer, the Secretary of the Treasury, the authority to remit fines or penalties provided for in laws related to steam-vessels, with exceptions, rejecting the argument that the law encroached on the President’s power to pardon based on precedent for the practice going back to England.6

Beyond legislation, Congress has invoked its Article I authority to conduct oversight as a more indirect constraint on use of the pardon power,7

119–20 (1999)). and the Supreme Court has alluded to the possibility of impeachment as a check on misuse of the power.8 Congress can also seek to amend the Constitution to clarify or constrain the President’s clemency authority.9 These constitutional processes are subject to constraints, which are discussed in more detail in their respective annotations.10

71 U.S. 333, 380 (1866); see also Ex parte Grossman, 267 U.S. 87, 120 (1925) ( “The executive can reprieve or pardon all offenses after their commission, either before trial, during trial or after trial, by individuals, or by classes, conditionally or absolutely, and this without modification or regulation by Congress.” ). back
80 U.S. 128, 143 (1871). back
Id. at 148. back
419 U.S. 256, 266 (1974). back
See, Act of March 3, 1865, ch. 98, 13 Stat. 516 (authorizing Attorney General to employ and provide salary for “pardon clerk,” among others). In a concurring opinion in an otherwise-unrelated 1990 Supreme Court decision, Justice Byron White noted that statutory appropriations restrictions may fall if “they encroach on the powers reserved to another branch of the Federal Government,” using as an example a hypothetical effort by Congress to “impair the President’s pardon power by denying him appropriations for pen and paper.” Off. of Pers. Mgmt. v. Richmond, 496 U.S. 414, 435 (1990) (White, J., concurring). back
114 U.S. 411, 412–414 (1885). In the later case of Brown v. Walker, the Court upheld what was essentially an immunity statute for testimony given to the Interstate Commerce Commission, but in doing so suggested that Congress has “the power to pass acts of general amnesty[.]” 161 U.S. 591, 601 (1896). The Court has not revisited its suggestion that Congress has some degree of clemency authority parallel to the President’s, though the validity of the suggestion has been disputed in other quarters. See id. at 609 (Field, J., dissenting) ( “Congress cannot grant a pardon. That is an act of grace which can only be performed by the president.” ); Legislative Proposal to Nullify Criminal Convictions Obtained Under the Ethics in Government Act, 10 Op. O.L.C. 93, 94 (1986) ( “[T]he Constitution gives Congress no authority to legislate a pardon for any particular individual or class of individuals[.]” ). back
See, e.g., Pardon of Richard M. Nixon, and Related Matters: Hearings Before the Subcomm. on Criminal Just. of the H. Comm. on the Judiciary, 93d Cong. 90–151 (1974) (testimony of President Gerald Ford). The Department of Justice has, in the past, taken the position that instances of Executive Branch compliance with congressional requests for information regarding pardon decisions have been purely voluntary and are not indicative of congressional authority to review clemency decisions. See Letter from Janet Reno, Att’y Gen., to President Bill Clinton (Sept. 16, 1999) (quoted in H.R. Rep. No.
119–20 (1999)
). back
Ex parte Grossman, 267 U.S. 87, 121 (1925) (indicating that if the President ever sought to “deprive a court of power to enforce its orders” by issuing “successive pardons of constantly recurring contempts in particular litigation,” such an “improbable” situation “would suggest a resort to impeachment, rather than a narrow and strained construction of the general powers of the President” ). back
U.S. Const. art. V. back
See ArtI.S2.C5.3 Impeachment Doctrine; ArtV.3.2 Congressional Proposals of Amendments. back