Category Archives: Law: Constitutional Law

Extraordinary (in the sense of rare and nearly unprecedented) piece of news today: Bush withdraws 1 of 19 pardons he issued Tuesday.

To a Constitutional lawyer, the interesting question is whether it is even possible to revoke a pardon once it is given. It is long-established that in the eyes of the law, a full pardon makes it as if the offense — not just the conviction — never happened. The Supreme Court said 125 years ago that “the pardon not merely releases the offender from the punishment prescribed for the offence, but that it obliterates in legal contemplation the offence itself.” Carlisle v. United States, 83 U.S. (16 Wall.) 147, 151 (1873). [Note, however, that some courts hold, controversially, that a pardon does not preclude the imposition of attorney discipline based on the underlying conduct, because a pardon “cannot work such moral changes as to warrant the assertion that a pardoned convict is just as reliable as one who has constantly maintained the character of a good citizen.”]

So, pretty clearly, once a full pardon is signed, sealed, delivered, and accepted by the recipient, that's it: you can't take it back. (So called-conditional pardons, which may have a condition precedent are a different animal, but that's not what we're talking about here.)

The AP's story is very scanty on the legally significant facts, saying only that Bush “revoked” a pardon, and then discussing the reasons for the sudden turnaround. That could mean almost anything.

If Bush had not formally signed a pardon document, then there's no legal issue: what's been revoked is an intention to pardon, and the public announcement doesn't create any legal obligation to actually do so. The cases are clear on that point.

But if the President actually signed a pardon, then changes his mind, all of a sudden we're in interesting territory, reminiscent of Marbury v. Madison but involving a completely contrary opinion by Chief Justice Marshall.

Logically there are four steps in a regular (as opposed either a general or conditional) pardon:

1. The President makes a decision.

2. The President signs a pardon, and (perhaps) it is sealed to show it's official.

3. The pardon is delivered to the beneficiary.

4. The beneficiary accepts it.

Everyone agrees that after step four under US law the pardon is unassailable.

It seems to me also that there's basically no debate that by then end of step three, the pardon is final and cannot be revoked, even if the beneficiary hasn't yet decided whether to accept it or not. And, as noted above, after step one, there's nothing to revoke except a legally meaningless promise.

The interesting case — which may or may not exist here, we don't yet know — is whether a pardon can be revoked after its signed (and sealed), but before it's delivered. It doesn't happen very often, but it's not unheard of.

I'd argue that the answer to that question ought to be no — once a pardon is signed and sealed, that's it, the thing is done forever unless the recipient of the pardon rejects it. Here's why: First, persons can be pardoned in absentia, by general proclamation, or even posthumously, in situations where delivery is impossible, or at least unnecessary. (On the other hand, as discussed further below, no one is obligated to accept a pardon; some might see it as an admission of guilt, or in the case of conditional pardons might find the conditions unpalatable.) Second, it would be bad to create a now-you-see-it-now-you-don't pardon that some future President Blagojevich could sign but not deliver, tricking someone into acts of reliance to their detriment.

There is, however, some weighty precedent for the proposition that at least a garden-variety pardon is not complete until delivered. This line of argument originates in this statement of Chief Justice Marshall's in U.S. v. Wilson, 32 U.S. 150, 161 (1833). Marshall, famously, had earlier decided in Marbury v. Madison that an official's commission was valid without delivery, and hence must be delivered even if the President did not want the appointment to go through. But pardons, he argued, were different:

A pardon is a deed, to the validity of which, delivery is essential, and delivery is not complete, without acceptance. It may then be rejected by the person to whom it is tendered; and if it be rejected, we have discovered no power in a court to force it on him. It may be supposed, that no being condemned to death would reject a pardon; but the rule must be the same in capital cases and in misdemeanors. A pardon may be conditional; and the condition may be more objectionable than the punishment inflicted by the judgment. The pardon may possibly apply to a different person, or a different crime. It may be absolute or conditional. It may be controverted by the prosecutor, and must be expounded by the court. These circumstances combine to show, that this, like any other deed, ought to be brought ‘judicially before the court, by plea, motion or otherwise.’

Similarly, the District Court decision in In re De Puy, 7 F. Cas. 506, 510-11 (S.D.N.Y. 1869) (No. 3814), described in Harold J. Krent, Conditioning the President's Conditional Pardon Power, 89 Cal. L. Rev. 1665, 1704 (2001) as involving:

President Andrew Johnson's offer of a pardon to Jacob DePuy, who had been convicted and incarcerated for violating the revenue laws. President Johnson predicated the pardon on DePuy's agreement to pay a fine. When President Grant assumed the reins of power, he revoked the pardon, and the Court upheld the revocation because the paperwork had yet to reach DePuy even though the warden had the papers in his possession at the time President Grant revoked the offer. … Indeed, President George W. Bush's administration reportedly studied the feasibility of revoking the Marc Rich pardon, and it was not clear whether the Clinton administration had completed all of the paperwork at the time Bush took office.

So, depending on the facts and especially how advanced the paperwork was, Robert Toussie of Brooklyn, N.Y. may have an interesting case, or he may have nothing.

Incidentally, according to Jack M. Beermann, Presidential Power in Transitions, 83 B.U. L. Rev. 947, 979 n.105 (2003), Bush decided to let Clinton's pardon of Marc Rich go through, despite doubts as to whether the paperwork was final: “President Bush considered the possibility of revoking this pardon but decided against it “to protect that privilege, not only for me but for future presidents, as well.” (citing John Riley, Bush Won't Revoke Pardon of Financier, Newsday, at A14 (Jan. 30, 2001)).

It's interesting that Bush's concern eight years ago “to protect [the pardon] privilege, not only for me but for future presidents” seems to have attenuated. What would Cheney say?

Under the Supreme Court's decision in Tinker v. Des Moines Independent Community School Dist., students in public schools are allowed to wear political statements to school (the case concerned black armbands protesting the Vietnam war, back when we had student protests against wars), so long as they are not “disruptive”.

The application of this standard has caused considerable angst over the years, with school Principals sometimes allowing what to my eye is a 'heckler's veto' when they forbid some controversial statements because it could cause trouble. The cases as a group don't make a whole lot of sense to me (e.g. no to a T-shirt with a gun, yes to a pro-gay rights shirt, no (mostly) to the confederate flag, and so on). But that's not the point of this story.

One of my sons goes to public school. We were talking this morning on the way in, and we got around to whether people wore Obama or McCain buttons to school.

“We're not allowed to do that,” he said.

My lawyer brain lit up with a big blinking TINKER! sign.

“Why not?” I asked very calmly. (LAWSUIT! LAWSUIT! I'm thinking.)

“Because we're not allowed to have anything sharp, and the buttons have sharp parts [pins] on the back. Teachers can wear them, but we can't.”

“Oh. Would you be allowed to wear a sticker?”

“Sure.”

We often hear that law on the sharp end is different from law in the books. Here's a content-neutral prohibition — part of a general zero-tolerance policy on weapons and the like — that I imagine the school could successfully defend as a safety issue in almost any court. And yet it shuts down a whole range of political speech.

Any naturalized citizen can run for any office in the land — except for President and Vice-President. They have to have been citizens at time of birth. That, at least, is how I and almost everyone reasonable reads the relevant Constitutional clause — it's not about Caesarians.

Everyone agrees that persons born in the USA are natural born citizens. Almost everyone agrees that persons born outside the US who qualify for birth citizenship pursuant to a statute are also “natural born citizens” and eligible to be President. That's certainly my view. A few people have argued that only persons born here are “natural born” citizens, and that other class of birthright citizens are not sufficiently “natural”, but I think that's a losing argument, and it hasn't gained much traction.

John McCain was famously born in the Canal Zone — not in the US. But both his parents were citizens, so that's no problem, right?

Not so fast.

From Adam Liptak's latest, A Citizen, but “Natural Born”? McCain's Eligibility to Be President Is Disputed by Professor, we learn of a serious argument against McCain's eligibility.

The analysis, by Prof. Gabriel J. Chin, focused on a 1937 law that has been largely overlooked in the debate over Mr. McCain's eligibility to be president. The law conferred citizenship on children of American parents born in the Canal Zone after 1904, and it made John McCain a citizen just before his first birthday. But the law came too late, Professor Chin argued, to make Mr. McCain a natural-born citizen.

What about citizenship by descent? There was a glitch.

At the time of Mr. McCain’s birth, the relevant law granted citizenship to any child born to an American parent “out of the limits and jurisdiction of the United States.” Professor Chin said the term “limits and jurisdiction” left a crucial gap. The Canal Zone was beyond the limits of the United States but not beyond its jurisdiction, and thus the law did not apply to Mr. McCain.

Which is why the 1937 law was needed in the first place.

The Supreme Court has relied on far less pettifogging distinctions to deny the right to sue to whole classes of workers. Surely a 'strict constructionist' court would read the law this way too? (The counter-argument is the sort of purpositive reading of law that conservatives usually claim to eschew, namely that this is a crazy result that Congress couldn't have meant in the earlier law, and the '37 act was just housecleaning.)

Mr. Liptak suggests we'll never know, as (despite there having been a suit on this issue filed in New Hampshire) there is probably no one with standing to sue, a legal term that approximates the concept of direct, palpable or probable, person injury of a kind not shared equally with all citizens. Prof. Chin suggests that if McCain is elected, the Vice President-elect will have standing, but is unlikely to sue.

I think the standing argument is probably right. Even so, it would be nice to think that the issue could get into court, but not to throw McCain out of the election, which would be a travesty. As Prof. Chin rightly says, “Presidential candidates who obtained their citizenship after birth are no more likely to be disloyal than those born citizens, and the People of the United States should be allowed to elect whomever they choose.” (Insert “shortly” before “after birth” if it makes you feel better.)

No, the reason to wish this would get into court is that it would provide a strong excuse for knocking the stuffing out of the largely pernicious Insular Cases which form the basis for the argument of McCain's ineligibility. The Insular Cases are the basis for the argument — wrong in my opinion — that most of the Constitution stops at the water's edge. I believe that the Constitution applies to the officials whose offices exist under it whereever they act. I don't think non-US citizens abroad have constitutional rights like US citizens at home or abroad do, but I don't think that government officials lose the shackles of law when they cross the border. Too often — think Guantanamo — our officials act as if they do, and their lawyers try to justify it in court.

Via Pogo Was Right, FISA Court Judge Quit Over White House's Refusal to Legally Obtain Spy Warrants, comes this story which, while it speaks very well for Judge Robertson, carries the troubling implication that the judges with a strong view of the bill of rights may self-select off the FISA court.

FISA Court Judge Quit Over White House's Refusal to Legally Obtain Spy Warrants

Three years ago, US District Court Judge James Robertson sent a letter to Chief Justice John G. Roberts Jr., notifying him of his resignation from a secret intelligence court set up to monitor the federal government's domestic surveillance activities.

Robertson's abrupt departure came on the heels of a December 2005 report in The New York Times that first exposed the White House's warrantless wiretapping program President Bush had authorized shortly after 9/11. Robertson, who was appointed to the Federal Intelligence Surveillance Court by the late Chief Justice William H. Rehnquist, told colleagues that President Bush's unilateral decision to spy on Americans suspected of links to terrorists, without first seeking approval from the 11 judges assigned to the FISA court, was legally questionable and his resignation should be interpreted as a sign of protest.

This week the Senate will vote to allow this corrupt administration to wiretap Americans for up to a week without a warrant, and to remove the check of liability on telcos that enable past (and by implication future) illegal wiretaps.

Parlous times.

What makes Republicans into Obama supporters? Unqualified Offerings explains:

It's all about too much power in the executive branch, which is a conservative principle. Because of the war in Iraq and partisan division, Bush and Cheney convinced Republicans that this is something you should be for. But guys who went to law school know better than that.

So do gals.

Prof. Anthony Sebok has a really interesting article up at Findlaw: in Is It Constitutional for the Senate to Retroactively Immunize From Civil Liability the Telecoms That Provided the Government with Information About Customers' Communications? he argues that the proposal to give retroactive immunity to telecom companies who illegally wiretapped their customers may be an unconstitutional uncompensated taking as regards plaintiffs in currently pending claims.

Without doing some research, I don't know the law well enough in this area to form an opinion, but it's intriguing and I'd welcome comments from those who know the area.