Thursday, November 13, 2008

Proposal for a Minor but Worthwhile Constitutional Amendment

Salon is the latest news outfit (via) to speculate on the possibility that Bush will offer pardons to members of his administration -- for their role in torturing suspects, or possibly other offenses -- before leaving office.

Which leads to the following thought.

There may well be good reason to give the President the power to pardon, monarchical as it seems. But is there any good reason, whatsoever, for a lame-duck President to have the power to pardon?

Why not simply have a constitutional -- it would have to be constitutional, I presume, since the pardon power itself is, but IANALTG* -- limitation on that power ending it shortly before the election -- enough time, say, that the effect of the pardons could be taken into account by the electorate? The amount of time is debatable, obviously; it seems like at least a week would be necessary, possibly as much a a month. For the entirety of a Presidential term, up until a few weeks before the election, the President could grant a pardon; then, for a few months, that prerogative would be on hold. Presumably no pardons are so urgent that they could not wait a few months for a new President, with full pardon power restored, to take office. (In the very rare case that might be urgent -- a death penalty case, say -- presumably some reasonable judge would issue a stay of a few months if the possibility of a pardon really seemed likely.)

Note that I don't think it would be enough to simply require ratification by the Congress, or the incoming President, of any pardons in the lame-duck period -- let alone to simply allow reversal of the same; it would create a situation where the default was to let the lame-duck have their way.

One might consider extending this limitation on lame-duck Presidents to other powers, but I can't think offhand of any others which would require a specifically constitutional limit rather than simply a legislative one -- or which are so impossible to reverse.**

Note that there is precedent both for using constitutional amendments to deal with the practical difficulties of the lame-duck period (amendment 20) and for recognizing that some matters require an election to ratify their effects (amendment 27).

It seems to me that one ought to be able to get a good bi-partisan consensus on this matter -- Bush 41 gave out some unconscionable Iran-Contra pardons in his lame-duck period, and Clinton did some minor but slimy pardoning in his which conservatives were rather outraged about. And if Bush 43 does the same it would provide the occasion for this.

Overall the notion that a president immune from political consequences -- even for their party, save in a rather distant contest -- should have the power to grant pardons is inherently slimy and corrupting. Fixing it should be a no-brainer.

Some may want to go beyond this -- prohibit a president from pardoning themselves, say, or even any member of their administration for any action taken in the course of their official duties -- but the simpler form strikes me as far easier to get consensus on.

No lame-duck pardons! It seems a simple, even obvious idea. How about it?

* IANAL = I am not a lawyer. IANALTG = I am not a lawyer -- thank God!

** Except war-making -- but of course there the issue is not constitutional, since the power of war is already invested in Congress, not the President, but rather the utter abdication of that power by the cowardly invertebrates that have made up all of our national legislatures since WW2.

No comments: