The Language of the Lame Duck Pardon Amendment

A short while ago, I wrote a post advocating that we amend the Constitution to eliminate lame duck pardons.  While such a reform might seem small, it would be beneficial, it might secure the bipartisan support necessary to enact an amendment, and it would revive the moribund amendment process which is necessary to a beneficial originalism.

But having an idea about what an amendment should do and writing the language of that amendment are two different things.  Stephen Sachs, an originalist from Duke Law School, saw the post and tried his hand at drafting an amendment.  Steve has both more taste and more talent for this task than I do.

Consider the language he came up with:

The power to grant reprieves and pardons for offenses against the United States may not be exercised unless the President shall have made a public proclamation of the same; nor, except to stay the execution of a sentence of death, from one month prior to the day for choosing the electors until noon on the 20th day of January next following, unless after the counting of the electors’ votes the President shall have been chosen to continue in office.

The language following the semicolon basically says that the President cannot pardon anyone for a month before Election Day until Inauguration Day unless he is reelected.  The first sentence prohibits secret pardons, which might be used to circumvent the restriction on lame duck pardons.  Without that prohibition, the President might issue secret pardons before the period beginning one month prior to election day.

Of course, some might believe that a prohibition on secret pardons was problematic, since perhaps they could be used for legitimate purposes.  I am not convinced, but if one disagrees, one could address the issue in another way – say by changing the amendment to allow the next President to repeal any secret pardons issued by the prior President.

I like this language.  This could be the 28th Amendment.  All we need is two thirds of both houses and three quarters of the states.

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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    • gabe says

      Although!

      Perhaps, we could edit it a bit by breaking into two clauses:

      “[1.} The power to grant reprieves and pardons for offenses against the United States may not be exercised unless the President shall have made a public proclamation of the same;

      [2.} Nor shall such power be exercised, except to stay the execution of a sentence of death, from one month prior to the day for choosing the electors until noon on the 20th day of January next following, unless after the counting of the electors’ votes the President shall have been chosen to continue in office.

      In my (surely uninformed) reading of the original, could not the qualifying clause (#2) be argued to permit the President that has been re-elected to exercise the power in secrecy. I know – the argument is that the 2nd clause is simply a further limitation upon the *power* itself and not the “secrecy clause” BUT *clever* legal minds have also successfully argued for far worse abuses of the language.

      Also, I might add the following:

      “The power to [initiate, consider and / or] grant reprieves and pardons for offenses against the United States [and any of its political subdivisions]………..

      I mean, after all, the President could pardon me for Drunk Driving or some other State / local offense;

      And in a different scenario:

      President tells a big donor currently under investigation / in jail etc. that the President will pardon him if re-elected, “And oh, BTW, the Party is always looking for electoral support ($$$$). Donor then makes an assessment – “hey, if I donate, I get a pardon if he wins. If he doesn’t, I am only out some money which I can’t spend in prison anyway.

      I’m just saying.

      • Paul Binotto says

        Excellent points, Mr. Gabe, and I like your amended language.

        Might the language be amended even further to include a third clause:

        [3.} Nor shall the power be exercised when the President or his party has received any political financial support from the offender within the period beginning at a date commencing one year prior to the date of the President’s election to a first term in office, and ending at noon on January 20th on the last day of the President’s final elected term in office.

  1. Paul Binotto says

    I appreciate your argument for this Amendment any why it might be good for the Country to be re-acquainted with the amendment process. However, it is a concern to me that a “slam dung” amendment so to speak, could turn out to be a double-edge sword in the long run.

    I am concerned the effect could be:

    1) to trivialize what otherwise should be (in my opinion), a highly considered, even last resort, mechanism for affecting broadly supported change in the law, only to be resorted to when every other legislative attempt has failed.

    2) such a trivialization could create on precedent, the potential for abuse by a clever opposition capable of devising a play that somehow could take an “end-around” if you will, of those built-in protections intended to prevent abuse of the amendment process.

    In addition, despite the lack of recent Constitutional amendments proposed or adopted, there does always seem to be an never ending cry by this group of citizens or that for an amendment favorable to their varying causes, that to suggest Americans have forgotten the process as an option seems somewhat unsupported in this respect.

    While I would concede that the record ratification period of 202 years, 7 months, and 10 days +/- for the 27th Amendment was more of a reflection of a determined and self-interested Congress to bury the amendment, than an intended braking-mechanism envisioned by the Framers, in my view, in other cases, this extended period might be just about right.

    If Progressives have proven anything (to me) it is their willingness to misuse or misrepresent the Constitution if it stands in the way of their agenda, and in view, the best response to the current political climate in the U.S. for those wishing to protect the integrity of the Constitution is not to unnecessarily expand the Constitution (The Supreme Court has already demonstrated an all too wiliness to do that on their own), but to circle the wagons tightly around it until either the threat has withdrawn or until the Calvary has arrived.

    • Paul Binotto says

      I meant to write, “The Supreme Court has already demonstrated an all too WILLINGNESS to do that on their own” not wiliness – I swear this typo was not a Freudian Slip!

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