At Powerline, Steven Hayward floats the provocative suggestion that President Obama might issue a blanket pardon for illegal immigrants as a way of goading the Republicans into impeaching him–a fight that, on Hayward’s account, the president might relish. Hayward suggests that such an act would be within the president’s constitutional authority, but also an abuse of it worthy of impeachment.
Hayward is correct that impeachment does not require a criminal act, that it was intended by the founders as a political remedy for political abuses. He is also correct that, accordingly, one could properly impeach a president for an act that was within his constitutional authority. Suppose the president issued a blanket pardon for every person who violated campaign finance laws by making impermissibly large donations to his own party. He has the power to do it, but any Congress with self-respect, and a patriotic concern for the political health of the country, would impeach him and remove him from office for such a blatant abuse of the public trust.
It is not clear to me, however, that Hayward is correct in suggesting that a president could pardon illegal immigrants for being in the country illegally. Here is the language of the Constitution: “The president . . . shall have power to grant reprieves and pardons for offenses against the Untied States, except in cases of impeachment.”
That language suggests that the pardoning power is exercised in relation to the criminal law: that the president has power to pardon someone who has been, or might be, convicted of a crime. This survey of the authority suggests that this is the way the power has been understood by the courts.
And then here is some of the language from the Justice Department’s own website:
Under the Constitution, only federal criminal convictions, such as those adjudicated in the United States District Courts, may be pardoned by the President. In addition, the President’s pardon power extends to convictions adjudicated in the Superior Court of the District of Columbia and military court-martial proceedings.
Illegal immigrants, however, are not guilty of a crime. Entering the country unlawfully is not a criminal offense for which one can be punished, but a civil violation for which one is subject to the remedy of deportation. So on the face of it it looks to me like a supposed pardon in this area would in fact be not an abuse of a legitimate power, but the assumption of a power the president does not in fact have.