Pardon Me? Executive Clemency as a Vehicle for Amnesty Isn't a Good Bet

By Dan Cadman on August 14, 2014

I have been pondering the Guy Benson article on the possibility of the president using his pardon power to amnesty the 10 to 12 million aliens illegally in the United States.

I'm not sure who came up with this notion, or how, but it goes without saying that it's a bad idea — and, more to the point, unlikely to gain enough legal traction to be successful.

CIS Legal Policy Analyst Jon Feere has already discussed the problems inherent in even attempting to decide exactly what the president would be pardoning given the multiplicity of crimes committed by aliens during the course of their stay, ranging from tax evasion to identity theft to illegal entry to reentry after deportation. The potential list is endless.

Another thing that advocates of the preposterous need to think about is exactly how such a "pardon" could be crafted. By its nature, it would have to be broad (for the reasons just described) to sufficiently satisfy the near-insatiable appetite of open borders advocates for vitiating immigration law enforcement efforts. And yet, therein lies a huge dilemma, because in doing so, the president runs the risk of a Willie Horton moment, multiplied by thousands. Such a broad pardon could inadvertently apply to illegal aliens who also happen to be drug or gun traffickers, child smugglers, sex predators, or murderers, thus letting them off the hook for crimes not meant to be covered.

A pardon couched in such broad language violates the Department of Justice's own guidelines for executive clemency This is obvious from even the most cursory glance at the DOJ website. How would the president or his legal advisors justify such a clear breach of the prevailing standards; standards that have evolved precisely because of past accusations of abuse by the chief executive in using the pardon power of the Constitution? The troubling case of Marc Rich comes immediately to mind. Is this the kind of convenient hammer the Democratic party wants to hand Republicans to use against them just in time for midterm elections, or even the next presidential election?

But, finally, there is the underlying legal issue. Pardons are issued for concrete acts started and finished that constitute a violation of law. Such acts carry with them a variety of parameters laying out the essential elements of the offense and, importantly, the statute of limitations that pertains. Almost every federal offense is covered by a time frame after which it can't be presented for prosecution (murder, certain acts of terror, and a few other singularly heinous crimes are the exception and have no time limit). Some kinds of immigration offenses are clearly amenable to the pardon power. When, for instance, an alien crosses the border into the United States illegally, it is a finite act. The statute of limitations pertains. Thus, the president could pardon the crime of illegal entry, codified at 8 U.S.C. Section 1325. But illegal presence in the United States is a continuing offense. There is no statute of limitations. Every minute of every hour of every day that an alien stays within our borders without permission, he is perpetuating that offense. How, then, does a president cover that with a pardon? I'm trying to imagine such a scenario:

It is the clemency signing ceremony. The president sits at a table in the Rose Garden, dutifully surrounded by the Homeland Security Secretary, the Attorney General, his domestic policy advisor, and as backdrop, an appropriately admiring handful of illegal aliens soon to be the beneficiaries of this pardon. With pen poised in hand, the president proclaims, "With the powers vested in me by the Constitution (looks up grins, offers a slow, sly wink), I hereby pardon whosoever happens to be an alien physically present in the United States without permission, effective right now...and now...and now...and now...and now...and now..."