A New Power?: Civil Offenses and Presidential Clemency

70 Pages Posted: 27 Mar 2016

Date Written: March 25, 2016

Abstract

The presidential pardon power is widely assumed to apply only to federal crimes — but not to civil offenses. No scholar, however, has ever carefully reviewed whether presidential clemency extends to civil offenses or explored the potential implications of this power. This Article provides the first-ever close study of whether presidential clemency is available for civil offenses. It concludes that presidents may pardon civil offenses — thus unearthing a new executive power, albeit one that has existed since 1787. The Article consults the various types of historical evidence that the Supreme Court has stated are most relevant to determining the scope of the pardon power: historical practices in England and the colonies, records from the Constitutional Convention, and English common law — as well as an array of other interpretive tools.

The Article relies on the fact that “civil” offenses, as we now understand them, either were criminal offenses at the Founding or involved activities that went unpunished. In other words, there were no “civil” offenses (as we now know them) at the Founding; they arose only in the 1840s, as Felix Frankfurter memorialized in his 1925 article about the blurring lines between criminal and civil offenses. This Article shows, however, that the most analogous offenses prior to the advent of civil offenses could have been pardoned and were, in fact, pardoned by both presidents and English monarchs (whose acts of clemency the Supreme Court consults to assess the scope of the pardon power). In short, the various tools by which the Supreme Court assesses the breadth of the pardon power uniformly support the conclusion that civil offenses may be pardoned. The Article ends by launching a preliminary discussion of the uses and implications of this power.

Keywords: Pardons, Clemency, Executive Power, Constitutional Law, Civil Offenses, Regulation, Separation of Powers

JEL Classification: K10, K19, K20, K22, K23, K29, K42, L50, R52, G18

Suggested Citation

Messing, Noah, A New Power?: Civil Offenses and Presidential Clemency (March 25, 2016). Buffalo Law Review Forthcoming, Available at SSRN: https://ssrn.com/abstract=2754845

Noah Messing (Contact Author)

Yale University ( email )

New Haven, CT 06520
United States

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