A New Power?: Civil Offenses And Presidential Clemency

Noah Messing

Yale University

March 25, 2016

Buffalo Law Review Forthcoming

Abstract:

The presidential pardon power is widely assumed to apply only to federal crimes — but not to civil offenses. No scholar, however, has ever carefully reviewed whether presidential clemency extends to civil offenses or explored the potential implications of this power. This Article provides the first-ever close study of whether presidential clemency is available for civil offenses. It concludes that presidents may pardon civil offenses — thus unearthing a new executive power, albeit one that has existed since 1787.

The Article consults the various types of historical evidence that the Supreme Court has stated are most relevant to determining the scope of the pardon power: historical practices in England and the colonies, records from the Constitutional Convention, and English common law — as well as an array of other interpretive tools.

The Article relies on the fact that “civil” offenses, as we now understand them, either were criminal offenses at the Founding or involved activities that went unpunished. In other words, there were no “civil” offenses (as we now know them) at the Founding; they arose only in the 1840s, as Felix Frankfurter memorialized in his 1925 article about the blurring lines between criminal and civil offenses. This Article shows, however, that the most analogous offenses prior to the advent of civil offenses could have been pardoned and were, in fact, pardoned by both presidents and English monarchs (whose acts of clemency the Supreme Court consults to assess the scope of the pardon power). In short, the various tools by which the Supreme Court assesses the breadth of the pardon power uniformly support the conclusion that civil offenses may be pardoned. The Article ends by launching a preliminary discussion of the uses and implications of this power.

A New Power?: Civil Offenses And Presidential Clemency – Introduction

Article II of the U.S Constitution empowers presidents to pardon “Offences against the United States.” The traditional understanding of that power suggests that presidential clemency extends only to crimes. That view, however, is mistaken. This Article shows that presidents may also pardon civil offenses and opens a discussion about how this power could be used by presidents.

Federal civil offenses are laws or regulations that impose penalties on offenders–but that cannot result in the offender being sent to prison. Parties who violate these laws may be fined, and in some cases their property may be forfeited. As one federal agency observed, “[c]ivil penalties are an important element of regulatory enforcement, allowing agencies to punish violators appropriately and to serve as a deterrent to future violations.” Thus, civil offenses resemble criminal laws: both types of offenses prohibit and punish specific misconduct. But no careful analysis has even been undertaken of whether presidential clemency is available for civil offenses.

This Article provides a comprehensive assessment of that question. Its methodology mirrors the tools that the Supreme Court has consistently used in resolving past cases about the pardon power. Thus, this Article’s analysis is based on constitutional text, constitutional structure, and history. As the Court explained, “the arguments drawn from the common law, from the power of the King under the British Constitution, which plainly was the prototype of this clause, from the legislative history of the clause in the Convention, and from the ordinary meaning of its words, are much more relevant and convincing” than other interpretative tools. Likewise, the Court noted that the pardon power “must be construed with reference to its meaning at the time of its adoption.” This Article focuses on those methodologies.

But perhaps the most compelling reason to infer that presidents may pardon civil offenses stems not from historical analysis but from a simple, intuitive example. The pardon power is, for federal criminal offenses, nearly “unlimited,” and presidents may pardon murder, treason, and kidnapping. It would therefore be bizarre if a president could pardon a farmer who murdered federal officials and committed treason but was powerless to grant relief against a $117.11 fine that the same farmer incurred for growing too much wheat–the only civil offense in the bunch.

This intuition, however, conflicts with more than 180 years of dicta suggesting that the pardon power extends only to criminal offenses. In 1833, Chief Justice Marshall wrote that “a pardon . . . exempts the individual, on whom it is bestowed, from the punishment the law inflicts for a crime he has committed.” Likewise, the Department of Justice’s website explains that the pardon power extends to “only federal criminal convictions.”

Approximately a dozen scholars have confronted whether civil offenses may be pardoned and more than half have concluded that the president’s clemency power extends only to criminal misconduct.  For example, John Yoo–hardly an advocate for constrained executive power–concluded that “the Pardon Clause . . . concerns crimes, not civil violations.” But Yoo provided no evidence for this conclusion: for this proposition, he and his coauthor cite the Pardon Clause, without any commentary.18 Other commentators have made similar statements–also without delving into the available evidence.19 In fact, no scholar–on either side of this transfer limited debate–has carefully discussed the available evidence. This Article is the first to explore that evidence.

The relative quietude of this debate stems from underestimating the consequence of the power to pardon civil offenses; scholars have provided absolutely no discussion of what this power would mean for the executive branch. Most obviously, a president could pardon a large civil fine; these fines now routinely reach nine figures, and have exceeded five billion dollars in multiple instances recent years.20 A president could also influence policy directly, such as by granting amnesty each year on April 16 to cancel any civil penalties owed for citizens who failed to purchase healthcare as required under the Affordable Care Act21 or to issue individual pardons of any undocumented aliens detained for violating a civil offense related to immigration or even to pardon an entire class of taxpayers who paid a lower marginal rate than Congress decreed. These approaches, of course, would be controversial–and this Article refrains from trying to draw the exact line at which, for instance, an issuance of amnesty would fall afoul of the Take Care Clause.22 The Article does not dispute that such practices would produce furor in Congress or among voters. (Criminal pardons have done so, too–such as the pardons of Richard Nixon and Marc Rich). Rather, this Article merely makes the case that the president may pardon civil offenses, but leaves to future discussions the exact determination of where legal or political checks will impose fetters on this power.

A New Power?: Civil Offenses And Presidential Clemency

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