Let’s Pass a Constitutional Amendment Prohibiting Lameduck Pardons

I believe that the constitutional amendment process is essential to originalism and to a desirable constitutional law.  One of the most disturbing things about recent generations is that no constitutional amendment has been proposed and ratified since the 26th Amendment guaranteeing the right to vote to 18 year olds was enacted 1971.  (The 27th Amendment was proposed in 1789 and ratified over two centuries, receiving its last state vote for ratification in 1992).

One result of this failure to employ the constitutional amendment process is that the process is atrophying.  As a matter of political psychology, people do not think enough in terms of amending the Constitution.  A certain type of thinking is needed – identifying a rule that has broad support and that would improve the Constitution.

At this point, it would be beneficial to pass a constitutional amendment, even if it is a minor one, just to show that the process can still function.  I have a proposal that might receive the necessary support.

The lame duck period following a presidential election leads to all kinds of mischief and some of this could be easily addressed by a constitutional amendment.  If I had my druthers, I would pass a broad constitutional amendment that cut back on lame duck actions following both presidential and congressional elections, but that probably could not pass.  So let’s just try a narrow one.

The President should not have the authority to pardon people following a presidential election unless he will continue in office for four more years.  We have seen all kinds of questionable actions by Presidents in this period from both political parties, including some of the recent pardons by President Obama, the pardon of Marc Rich by President Clinton, and the pardons of Caspar Weinberger by the first President Bush.  Some of these pardons may be defensible.  I was sympathetic to the pardon of Weinberger, given the outrageous behavior of Independent Counsel Lawrence Walsh.  But it occurred after the election, not before.  Moreover, many Democrats believe that pardon was improper and therefore including it as part of the reason for the amendment can generate the necessary bipartisan support for the amendment.

Mike Rappaport

Professor Rappaport is Darling Foundation Professor of Law at the University of San Diego, where he also serves as the Director of the Center for the Study of Constitutional Originalism. Professor Rappaport is the author of numerous law review articles in journals such as the Yale Law Journal, the Virginia Law Review, the Georgetown Law Review, and the University of Pennsylvania Law Review. His book, Originalism and the Good Constitution, which is co-authored with John McGinnis, was published by the Harvard University Press in 2013.  Professor Rappaport is a graduate of the Yale Law School, where he received a JD and a DCL (Law and Political Theory).

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  1. Devin Watkins says

    You will just move up the pardons to just before the election (like the day before), but won’t be announced until just after the election. Still won’t change anything. Anyway, I think the pardons in the lame duck period serve a purpose. At this point the only reason for a pardon is because the President really thinks it’s just, not for politics. Isn’t this exactly the kind of thing we want pardons for?

    • gabe says

      Nope – the point IS to make it political; perhaps, then the fear of adverse voter reaction would prevent a miscreant such as Obama from pardoning terrorists, deserters and other criminal elements.

      As for the pardons being based solely upon justice, can you truly say that Clinton’s pardon of Marc Rich had to do with justice or was it simply to get funds into the clinton accounts; or was Clinton’s pardon of Puerto Rican terrorists anything more than an opportunity for Hillary to garner the votes of New York City Puerto Rican voters as she embarked on her Senatorial campaign.

      NO – I want it to be political – perhaps, then, pardons may actually be based upon what is JUST!!!

      See DJ’s comments below as they also hit the mark.

  2. djf says

    How about this: a constitutional amendment limiting the president’s pardon and commutation power to the period between September 15 and October 15 in federal election years.

    If a president thinks that a pardon or commutation is not worth the potential cost to himself or his party, he should not grant it. After the abuses of the last two Democratic presidents, I think limiting presidential power in this way is worth the risk that an otherwise “deserving” applicant will be denied clemency.

    Of course, this discussion is just pie in the sky. The country is far too polarized to allow for the passage of any conceivable constitutional amendment. In any event, the Democrats expect – probably correctly – that they will have a lock on the presidency in the near future, given demographic trends, and are unlikely to be interested in writing a new limitation of presidential power into the constitution.

  3. Alan Tarr says

    Isn’t the problem really the extended period between the election and the new President and Congress taking office? Other democratic systems change governments immediately or almost immediately after the election results are known (of course this would require advancing the date for the casting of the electoral college votes). There would then be no period in which both the incumbent and his successor were simultaneously conducting foreign policy. Also, the requirement of taking power immediately would require presidential candidates to clarify the sorts of persons they would name to their cabinet and other senior offices.

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