A Stitch in Haste

One activist legislator seems to think so:

[Representative Duncan] Hunter introduced a bill in January to initiate an unprecedented Congressional pardon of two former border patrol agents currently serving 11- and 12-year sentences after shooting a drug smuggler on the Texas-Mexico border in 2005.
...
While Constitutional objections are "very much a possibility," said Joe Kasper, Mr. Hunter's spokesman, he doesn't see the measure threatening executive power. The president's required signature on the bill "would obviously be synonymous with his authority to execute a pardon," he said. "The Congress is doing nothing more than initiating a pardon."

This is, of course, utter nonsense. Indeed, it's flunk-the-final wrong.

Some hasty stitches:

--Regarding "he doesn't see the measure threatening executive power" — since when is that the question? The correct question — the only question — is whether Congress' enumerated (i.e., limited) powers under Article I include a pardon power. They do not. To anyone other than an activist legislator like Duncan Hunter, this would be the end of the discussion.

--In fact, there is one — and only one — judicial power expressly delegated to Congress under the Constitution: the impeachment process. Therefore, under the generally accepted interpretative doctrine known as "expressio unius," no other judicial power, including a pardon power, can reasonably be inferred as belonging to Congress.

--Moreover, the fact that the pardon power is mentioned, not in Article I, but in Article II clearly demonstrates that Congress has no authority to initiate, catalyze or otherwise muck around in the pardon power. The sole exception might be to pass a non-binding "Sense of the Congress" resolution or some other impotent gobbledygook. Alternatively, why doesn't Hunter just write a letter to the president asking him, pretty please, to pardon the agents?

--A quick reductio ad absurdum: Could Congress, including the House, pass a binding bill appointing an ambassador? (Remember: Nominations are, under the plain text of the Constitution, initiated by the president and confirmed by the Senate; the House has no role.) Could Congress — both Houses — negotiate a treaty and send it to president to sign, rather than the other way around — again, according to the plain language of the Constitution? How about a bill appointing a Supreme Court Justice? "If the President signs it, then what's the difference?" This is what passes for sober, reasoned statecraft in the mind of Duncan Hunter?

--Suppose this bill were passed by both chambers, vetoed by the president and then overridden? Hunter's kindergarten logic ("we're just initiating the pardon process for the president") sorta kinda falls apart under that scenario, doesn't it? Wouldn't that be an unarguable violation of separation of powers (i.e., without the "wink-wink, nudge-nudge" rationalization)?

The legislative and executive branches don't get conspire in order to "wink-wink, nudge-nudge" their way around the plain text of the Constitution. One would have thought that cases such as Clinton v. New York (line-item veto unconstitutional) and INS v. Chadha (unicameral legislative vetoes unconstitutional) would have made clear: constitutionally mandated procedures are to be obeyed. Both involved bills duly enacted by Congress and duly signed into law by the president. Both tried to tinker with the allocation of power between the legislative and executive branches. And both were unconstitutional.*

But it's worse than that. This "Congressional pardon power" stupidity is merely one example of a greater political ill: The false and dangerous notion that "the government" has unlimited power to do anything and everything it might want, and that the only question is how best to divvy up that authority. The Constitution is not just about limiting one or another branch of government — it's about limiting government itself, "government" writ large.

"Separation of powers" is not an end in itself; neither is "federalism." They are, or were intended to be, tools to achieve the true objective: the constriction of government power itself, and the reining in of activist legislators and "unitary executives."

All power corrupts — so do all attempts to carve up power, especially among the corruptible.

(Via Sentencing Law & Policy.)

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*The question of whether the War Powers Act is unconstitutional is a whole other blogpost.