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I unbeg your pardon-- I never promised you, said the man in the Rose Garden

By Jack M. Balkin

For readers who want to know whether George W. Bush can in fact take back a pardon to Robert Toussie already given, there is a blog solely devoted to pardon issues, appropriately titled Pardon Power. The most recent post gives a historical run down of pardons given and taken back.

The argument made in that post is based on a series of precedents by the executive branch. Generally speaking, such precedents count for a lot in construing the Constitution. If the text is ambiguous or silent on the question whether the President can take back a pardon once offered, an unbroken line of practice on the question, if otherwise reasonable, is a powerful argument.

The question of taking back pardons, it should be noted, is really only the tip of the iceberg. The more general question is why the President's pardon power should be construed as broadly as it has been. There are many possibilities for abuse of the pardon power.

Even if the President has unreviewable power to grant pardons under the Constitution, it does not follow that the system cannot be rationalized and made subject to various procedures. The Executive branch already has structures for processing pardons. Moreover, Congress has the power, through its horizontal powers under the necessary and proper clause, to create and structure executive departments. Obviously, Congress cannot act so as to limit the President's prerogatives, but this does not mean that Congress may not set up agencies within the Executive Branch to assist the President in his determinations. The President, in turn, may have political reasons for employing these structures even if they channel the exercise of his discretion.

In this case, it appears that the pardon to Robert Toussie may not have gone through the Justice Department's regular procedural channels for granting pardons. This shows one of the reasons why these procedures are a good idea. It also reminds us of the fact that the Bush Administration has regularly tried to short-circuit a series existing procedures for decisionmaking-- ranging from intelligence analysis to the treatment of detainees to plans for dealing with post-war Iraq-- all with disastrous results. You would think that by now the White House would have learned that there are sometimes good reasons to vet decisions with people who don't already agree with your proposed course of action.

Full post as published by Balkinization on December 26, 2008 (boomark / email).