
Is It Time for a Constitutional Amendment on Presidential Pardons?
Thanks to Joe Biden, the language of such an amendment could be short and sweet.
Much as I’d like to see Hunter and James Biden sweat it out, and much as I’d like to see Anthony Fauci and Mark Milley and those evidence-destroying J6 Committee members held to account, this week’s dustup over decrepit Joe Biden’s autopen pardons may not ultimately amount to much.
Despite President Donald Trump having declared those rotten pardons to be “void, vacant, and of no further force or effect,” their legality seems to be on sound constitutional footing. Biden isn’t the first president to use an autopen, and an appeals court found last year that the writing component of a pardon isn’t even necessary.
Trump conceded as much on Air Force One on Sunday: “It’s not my decision — that’ll be up to a court — but I would say that they’re null and void because I’m sure Biden didn’t have any idea that it was taking place.”
Still, the bipartisan public outrage over the sleaziness of why, when, and how those pardons were issued does suggest the need for constitutional reform. Currently, under Article II, Section 2, the president has “power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.”
This isn’t technically an absolute power, but it’s certainly in the same nice neighborhood.
As for a constitutional amendment, it’s been 33 years since that document was last amended, and for good reason: Amendment is an extraordinarily heavy lift. Doing so requires a two-thirds majority vote in both the House and Senate, followed by ratification from three-fourths of the states.
That most recent amendment, the 27th, is also unique in that it was originally proposed as part of the Bill of Rights … in 1789. Talk about a long and winding road to ratification.
But the short-and-sweet language of the 27th Amendment, which deals with congressional compensation, suggests a path for approval of a check on the president’s pardon power. The language reads:
No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.
It’s brilliant, no? If you’re going to vote yourself a raise, you scoundrels, you’ll have to stand before the voters before you get one penny of it.
Similarly, the language of a new amendment on pardon power could ensure that the president is accountable to the voters for the pardons he issues. As Jeffrey Anderson writes in the Claremont Review of Books: “The Constitution should be amended to bar presidents from exercising the pardoning power in between Election Day and Inauguration Day — during which time, for outgoing presidents, there is essentially no check on that power to guard against its abuse.”
Here again, as with the 27th, the voters would serve as that check: If you’re going to let these scumbags skate, we’re going to make you and your party pay for it at the ballot box.
As Anderson notes, such an amendment would require just 10 additional words to the existing Article II, Section 2 language: The president “shall have Power to Grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment and during the period from Election Day through Inauguration Day.”
Joe Biden’s abuse of the presidential pardon might well be the worst such example in our nation’s history. He not only put his own son above the law for “those offenses against the United States which he has committed,” as well as for those he “may have committed or taken part in,” but he also granted clemency to the worst of the worst — 37 of the 40 inmates on federal death row.
As Anderson notes, with three days left in his presidency, “he granted clemency to more convicted criminals in a single day — roughly 2,500 people with drug convictions, usually for trafficking — than any other president over the past 100 years had granted over an entire four-year term.” Then, on January 20, with literally 20 minutes left in his presidency, he preemptively pardoned Fauci, Milley, and the January 6 Committee members, and a slew of his siblings and siblings-in-laws. Talk about scummy.
Against this backdrop, then, we have both urgency and momentum. Anderson even suggests an avenue for maximizing bipartisan support: “The amendment should be written to take effect during the presidential term following the one during which it is ratified … since no one would know which party would be holding the presidency when it would go into effect.”
In a perverse way, Joe Biden has done the nation a favor: He’s shown us the danger of a presidency run amok in its final hours. Now is the time to make sure it doesn’t happen again.
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