The Cabinet or the lame-duck pardons?
Cabinet members are close to the President and in commanding positions of authority; if they’re scared of a law they should work to change it.
Lame ducks, on the other hand, aren’t subject to the single veneer of a check on Presidential pardons: popular outrage. Limiting it in that span, when a President is unaccountable, and where we have ample history of silliness, seems warranted.
Note that I’m not proposing restricting commutations in any of those cases. (I suppose we should add a clause prohibiting the President from preëmptive commutations, too.)
> amending the constitution is virtually impossible
Not true. We’re probably closer to the end of our Constitutional stasis than at any time in our lives.
Hell, you might be able to ram something like this through today if you added a clause that nullifies past pardons per those standards.
Tickles me to see “stasis” so used - not incorrectly, ofc, but nonetheless as a perfect contranym of the original Greek.
I think this is necessary class of pardons. A hypothetical example of a good preemptive pardon would be Congress repealing an unjust law, and the president pardoning anybody who broke that law before the repeal.
>(2) To himself, his current or former Cabinet members, or to any of the foregoing’s current or former spouses or children or grandchildren (or their spouses)
Agree on not pardoning himself or cabinet members. Maybe could extend that to include all political appointees. Politicians shouldn't enjoy special privileges like these. But I'm less convinced about preventing family pardons. Those people (generally) aren't politicians. And, if they plan to abuse the president's pardon to commit crimes, they'd either be asking after the crime and risking the president refusing, or asking before and leaving the president open to conspiracy charges.
>(3) Issued after the presidential election in the final year of their term.
I've grown too cynical about the voters to believe this would matter. Most people don't follow politics closely enough to know who's been pardoned, what they did, and any political/personal connections they had with the president.
If I may suggest a limitation, how about allowing the House or Senate to veto a pardon with a 2/3 majority?
Congress could do this when they pass the law. If they didn't, they specifically chose not to.
> less convinced about preventing family pardons. Those people (generally) aren't politicians
What if we invert the question: in what case would the family require a pardon such that their spouse or parent in a position of massive power couldn't help them out of a legitimate scuffle?
> Most people don't follow politics closely enough to know who's been pardoned
Then why do most of the controversial pardons come in this envelope?
> how about allowing the House or Senate to veto a pardon with a 2/3 majority?
I like this much better.
amazing use of the diaresis
Regarding the substance of your comment, we do not have (IIRC) established judicial precedent for the constitutionality of preëmptive pardons. The practice originated with Ford pardoning Nixon, and has not yet been challened nor withstood judicial examination.
Personally, I'd like to see some of Biden's pardons challenged.
> (3) Issued after the presidential election in the final year of their term.
This is an interesting one for those who are seeking a second term but are at risk of losing
I’d argue the President may not issue pardons that are:
(1) Preëmptive;
(2) To himself, his current or former Cabinet members, or to any of the foregoing’s current or former spouses or children or grandchildren (or their spouses); or
(3) Issued after the presidential election in the final year of their term.
Furthermore, pardons for violent offences or corruption should be prohibited; provided, however, the President should retain the power to commute such sentences, and the Congress should have the power to regulate the manner in which the President may commute such sentences.
(Notably, I don’t believe this would apply to Ulbricht. He wasn’t convicted of a violent crime.)