Townhall.com's Guy Benson has raised some interesting questions about the extent to which President Obama might use his pardon power to initiate a mass amnesty of illegal aliens. The article is worth reading and thinking about as the nation awaits the Obama administration's controversial plans to decree an amnesty despite its failure to get an amnesty by constitutional means.
Benson reasons that Obama might use his presidential pardon power to legalize a sizeable number of illegal aliens, explaining that an "immigration pardon-o-rama could be a particularly devious method of achieving most of what Obama wants on this issue, and doing so with a patina of legality."
As Benson notes, some in the open-border crowd are pointing to President Jimmy Carter's use of the pardon power to pardon draft dodgers back in 1977. Amnesty advocates reason that since no one was named specifically in the document and since it applied to a large number of people, Obama could issue a similar pardon to illegal aliens living inside the United States, absolving them of their immigration lawlessness.
If Obama were to issue such a pardon, there would undoubtedly be pushback on a number of grounds, and Benson raises some of them in his article. One thing that is not clear is exactly what violations Obama would be pardoning. Even though he obviously wouldn't list illegal aliens by name in the document, he would still have to list the law or laws at issue and depending on what he did or did not list, it could have both political implications and implications for illegal immigrants.
Carter's pardon reads, in part:
Acting pursuant to the grant of authority in Article II, Section 2, of the Constitution of the United States. I, Jimmy Carter, President of the United States, do hereby grant a full, complete and unconditional pardon to: (1) all persons who may have committed any offense between August 4, 1964, and March 28, 1973, in violation of the Military Selective Service Act or any rule or regulation promulgated thereunder; and (2) all persons heretofore convicted, irrespective of the date of conviction, of any offense committed between August 4, 1964, and March 28, 1973, in violation of the Military Selective Service Act, or any rule or regulation promulgated thereunder, restoring to them full political, civil, and other rights.
Carter cites the "Military Selective Service Act", which is a relatively short and focused law. If Obama were to cite an act it would likely be the Immigration and Nationality Act (INA) — a comprehensive cornucopia of convoluted law that one could only fit on a very large bookshelf. If Obama were to decree the entire INA and all related laws and regulations to be inapplicable to a sizeable number of illegal aliens — whether four million or all 12 million — the act would amount to a nullification of decades of law and would rightfully be seen as a radical overreach of executive power.
Similarly, the language from President Gerald Ford's pardon of President Richard Nixon was quite broad:
Now, Therefore, I, Gerald R. Ford, President of the United States, pursuant to the pardon power conferred upon me by Article II, Section 2, of the Constitution, have granted and by these presents do grant a full, free, and absolute pardon unto Richard Nixon for all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in during the period from January 20, 1969, through August 9, 1974.
Instead of naming an act, the pardon is for "all offenses against the United States" and it is difficult to imagine President Obama using such a broad brush in pardoning illegal aliens. It would too vividly confirm the suspicions of many Americans that illegal aliens are treated more generously than citizens when it comes to law-breaking.
It seems that President Obama would have to lay out the specific statutes violated by illegal aliens within the pardon. But if a pardon were more specific than "all offenses against the United States" or "the entire INA" it would nevertheless still have the potential to be a lengthy list.
For example, if the president wanted to pardon illegal aliens for entering the country illegally, he would pardon them for violation of "Illegal Entry by Alien" (8 U.S.C. § 1325). But that wouldn't be helpful to a good number of illegal aliens since at least 40 percent entered legally and then overstayed a visa. To help them, the president would also have to excuse violations of "Overstaying Duration of Stay" (8 U.S.C. § 1227(a)(1)(B) & (C)(i)).
And what about those illegal aliens who have already been deported but have re-entered illegally? They face a different statute that could result in imprisonment for up to 20 years, depending on the reason for the original deportation. It seems the president would have to excuse violations of "Reentry of Removed Aliens" (8 U.S.C. § 1326) as well.
Many illegal aliens have been ordered deported but remain here and are therefore violating "Willful Failure or Refusal to Depart" (8 U.S.C. § 1253), which should probably also be listed in the pardon. Related is the fact that many aliens who have been ordered deported face civil penalties for failure to depart under 8 U.S.C. § 1324d, which can amount to a $500-per-day fine for each day they remain in the country. It seems this would have to be listed in the pardon as well.
But this is only the tip of the iceberg. President Obama would probably also have to pardon illegal aliens for their violation of "Registration of Aliens" (8 U.S.C. § 1302), which requires all aliens to register with the government if they remain in the country for longer than 30 days, and for failing to report themselves to an immigration official (19 U.S.C. § 1459), which, depending on the circumstances, can include a civil penalty of $5,000 for the first violation, $10,000 for each subsequent violation, as well as a criminal penalty of up to $5,000 and/or imprisonment up to one year.
Obama might also have to consider pardoning illegal aliens for "Fraud and False Statements" under 18 U.S.C. § 1001, which can be invoked, for example, when an illegal alien uses a false statement on an I-9 employment eligibility verification form or provides fake documents or statements to a Border Patrol agent, and for "Falsely Claiming Citizenship" under 8 U.S.C. § 1182(a)(6)(C)(ii) and § 1227(a)(3)(D)), which also comes up when an alien claims to be a citizen on an I-9 Form. Since nearly half of working illegal aliens have filled out I-9 Forms and are likely in violation of these statutes, it would seem that Obama would have to list these on the pardon.
And there are "Penalties for Document Fraud" under 8 U.S.C. § 1324c that would have to be pardoned and "Penalties for Social Security Fraud" under 42 U.S.C. § 408 that might come into play where an illegal alien is using a false Social Security number, or one that belongs to a U.S. citizen. And if that's the case, then the president would have to consider pardons for those engaging in "Aggravated Identity Theft" (18 U.S.C. § 1028A).
Illegal aliens who have brought their family members into the United States illegally would likely have to be pardoned for "Aiding or Assisting Certain Aliens to Enter" (8 U.S.C. § 1327), and "Unlawful Bringing of Aliens into United States" (8 U.S.C. § 1323), and possibly "Bringing in and Harboring Certain Aliens" (8 U.S.C. § 1324), just to name a few examples. Illegal aliens who have transported and harbored illegal aliens have also been prosecuted under "Conspiracy to Commit Offense or to Defraud the United States" (18. U.S.C. § 371), so it seems that would have to be listed in the pardon.
The list of laws broken by illegal aliens are lengthy and these examples are but a few. To see a list of more statutes violated by illegal aliens, see: "The Myth of the 'Otherwise Law-Abiding Illegal Alien".
If Obama were to use his pardon power to let illegal aliens off the hook for their lawlessness, the pardon's lengthy list of statutes would amount to nullification of a significant amount of law in both the immigration and criminal law arenas. Of course, if these laws were enforced with any seriousness, the illegal immigrant population would likely be much lower than it currently is, making the alleged "need" for an amnesty even less persuasive since fewer illegal aliens would be in the country. (Or, looking at this a different way, if immigration laws were enforced and the illegal immigrant population were much smaller today as a result, perhaps it would make a smaller amnesty more palatable than one for millions and millions of people amid on-going lax enforcement).
The problem of illegal immigration is largely a result of the government failing/refusing to enforce existing laws. And now the Obama administration proposes a virtual abolishment of the rule of law as a solution to the problem its own lax enforcement created in the first place. And the likely side effect is even more lawlessness in the form of more illegal immigration.
One more wrinkle: state law. It is important to remember that a president can only pardon violations of federal law. Any violations of state law committed by an illegal alien would remain punishable even if President Obama were to issue a "pardon amnesty". For example, when an illegal alien is stopped or arrested as part of an investigation it is not uncommon for the alien to make a false statement as to the alien's identity. Depending on circumstances and state law, false statements to a law enforcement officer may be considered a misdemeanor or a felony. As another example, states have identity theft statutes that could still be enforced against an illegal alien who worked with stolen/falsified documents prior to being pardoned. Regardless of what is contained in a pardon, victims still have an interest in seeing the perpetrator prosecuted.
It is interesting to think about what would happen at that point. If the violation of state law would amount to a deportable offense, and the sentence wasn't handed down until after the pardon was invoked, would that illegal alien who was pardoned for his immigration offenses nevertheless become deportable once again? It would seem so. It might depend on what type of status the Obama administration attempted to grant the illegal aliens through the pardon. It is generally understood that illegal aliens who have received Deferred Action status through Obama's lawless decree in 2012 remain deportable if they commit a deportable offense. To this extent, it may be that the states could blunt some of the effects of a pardon for illegal aliens by cracking down on some of the state crimes committed by illegal aliens. Of course, states would still have to rely on the federal government to deport the convicted and formally pardoned illegal aliens.
It is too early to tell exactly what the Obama administration will do now that the elected representatives of the people have chosen not to enact an amnesty. The White House has said some sort of unilateral action is likely by the end of summer.