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July 7, 2016

"Can Obama Pardon Millions of Immigrants?"

The question in the title of this post is the headline of this notable New York Times commentary authored by Peter Markowitz. Here are excerpts:

When the history of President Obama’s legacy on immigration is written, he will not go down as the president who boldly acted to protect millions of families from the brutality of our nation’s unforgiving immigration laws. The Supreme Court made sure of that last month, when it deadlocked on the legality of his program to defer the deportation of parents of American citizens and residents. Instead, he will be judged on what he actually did: deport more immigrants than any other president in American history, earning him the moniker “deporter in chief.”

However, President Obama can still act to bring humanity and justice to an immigration system notoriously lacking in both. He can do so by using the power the Constitution grants him — and only him — to pardon individuals for “offenses against the United States.”

The debate over the deportation deferral program has been framed as a question of the division of powers. Both sides agree that Congress is the only entity that gets to define offenses against the United States.... There is one area, however, where the president’s unilateral ability to forgo punishment is uncontested and supported by over a hundred years of Supreme Court precedent: the pardon power. It has been consistently interpreted to include the power to grant broad amnesties from prosecution to large groups when the president deems it in the public interest....

It’s a common assumption that pardons can be used only for criminal offenses, and it’s true that they have not been used before for civil immigration violations. However, the Constitution extends the power to all “offenses against the United States,” which can be interpreted more broadly than just criminal offenses.

A pardon could not achieve everything the deferred deportation program aspired to — notably, it could not deliver work permits. However, it has a certain operational elegance to it that would avoid many of the political battles surrounding the deferral program....

President Obama has plenty of time left to issue such a pardon. There is solid historical and legal precedent for him to do so. And although it would probably bring about legal challenges, opponents could not use the legal system to simply run out the clock, as they have with his deferred deportation program. A deferred deportation program could be undone by a President Trump. Unconditional pardons, in contrast, are irrevocable.

Finally, some would surely argue that a pardon protecting a large category of immigrants from deportation would, just like the deportation deferral program, effectively amount to a repeal of laws enacted by Congress. However, pardons do nothing to alter the law. They protect certain past offenders from punishment and prosecution, but leave the law unchanged as applied to any future violators.

President Obama has deported around 2.5 million people. That is about the same number as were deported in the entire 20th century. His apparent strategy was to demonstrate his bona fides on enforcement in order to persuade recalcitrant Republicans to work with him on immigration reform. It didn’t work. It turns out that you don’t convince people to be more humane on immigration by deporting immigrants hand over fist. We are left with a brutal legacy of millions of families torn apart, many simply for doing what they needed to do to protect and feed their children. President Obama will not be judged on his intentions or his attempts on immigration, but rather on his real impact. This is his last chance to establish a legacy of pragmatic compassion.

July 7, 2016 at 05:15 PM | Permalink


We need to deport ALL illegals immediately. Our country is going to hell quickly. We no longer can support the entitlements to millions that shouldnt be here.

We also need the Fed Govnt to stop throwing money out the door and stop robbing programs like social security that was working.

Get rid of the illegals, then we mandate if you want medicaid and free money and cell phones, you work 25 hrs/week.

Posted by: MidWestGuy | Jul 7, 2016 10:37:15 PM

Novel theory, but I don't see how it flies. The problem comes from referring to this group as "illegal" immigrants - an easy lay person way to explain things, but one the blurs legal issues.

With a handful of exceptions (those whose entry was actually criminal), it is more legally accurate to describe them as "undocumented" or "unauthorized." A pardon, in theory, could absolve this group of any past sins -- no consequences for having come her without a proper visa or for overstaying that visa. A pardon, however, would not give them a visa or permanent resident status. Without such appropriate documentation, their future conduct after the pardon -- remaining in the country without authorization -- is still legally problematic. At most, a pardon would allow those currently in the country to apply for the appropriate documentation without leaving. If they don't get such documentation, I have trouble seeing how the same courts that are questioning deferred deportation would be willing to broadly read the pardon power to resolve the issue.

Posted by: tmm | Jul 8, 2016 10:25:53 AM

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