Why doesn’t the President use the pardon power to adopt the DREAM Act?

One of the little joys of teaching a Presidency class in the fall is that my session on Presidential pardons falls around Thanksgiving so I can lead off with video of the leader of the free world pardoning a turkey.  However, one of the interesting things about the pardoning power is that, with the exception of impeachment charges, “the President’s authority to grant pardons [for federal offenses] is essentially unfettered” as this CRS report explains.  Presidents can pardon individuals or classes of people, with or without conditions.

While the possibilities are vast, modern presidents use the power to pardon sparingly.  Other than a few political cronies, moonshiners, and fowl friends, Presidents have been reluctant to appear “soft on crime” and slow to use the pardon power.  And since 1980, almost all pardons have been for specific individuals after the President and his staff have weighed the merits of each person’s case.

But it is also possible for Presidents to pardon entire classes of persons subject to a set of criteria laid out by the President.  In 1977, Jimmy Carter pardoned Vietnam-era draft evaders.  Even more significant, Andrew Johnson gave a general pardon (with limited exceptions) to anyone who participated in the Southern rebellion; this was a cornerstone of his Reconstruction policy.

So,  how could President Obama use this power to advance his policy agenda?  The most salient option would seem to grant relief  to some or all of the 10.2 million undocumented immigrants living with our borders.  Since Congress has failed to act on comprehensive immigration reform (2006) and the limited DREAM Act was blocked in 2010, there seems little chance that any change will occur without Presidential action.  While President Obama has the constitutional power to grant unconditional amnesty (permanent residency) to all these persons, it would be more likely that he would grant pardons to subsets of immigrants who meet certain conditions.  This could include:

  • Following the 2006 Senate Republican proposal, using the pardon power to suspend deportation or punishment for undocumented persons who have been in the U.S. for five years and pay a fine and back taxes;

  • Following the DREAM Act, pardoning anyone who arrived in the U.S. before the age of 16, and graduated from high school, and met any other conditions set by the President (e.g. military service).

  • Following Newt Gingrich, pardoning anyone who has been here 25 years, has three kids and two grandkids, has been paying taxes and obeying the law, and belongs to a local church.

  • Selecting some exemplars to receive symbolic pardons and be introduced at the next State of the Union address.

As a scholar, I am interested in the political actions that don’t happen, and this strikes me as an interesting case of non-action. One explanation is that I misunderstand the scope of the pardon power and immigration is outside that scope. Or, perhaps the President is reluctant to intrude on Congress’s authority to (not) act on immigration, although that seems unlikely since the White House’s “We Can’t Wait” strategy is predicated on direct presidential action to combat legislative paralysis. So, I welcome comments to correct my interpretation of the law or the politics of immigration.

9 Responses to Why doesn’t the President use the pardon power to adopt the DREAM Act?

  1. Patrick December 5, 2011 at 4:06 pm #

    A simple hypothesis would be that Obama fears an electoral backlash in 2012. Voters might perceive highly salient unilateral presidential action (in this case, pardoning) to be “undemocratic” or an otherwise disconcerting use of presidential power.

  2. Chris December 5, 2011 at 4:20 pm #

    Because the real legislative struggle isn’t over what happens to immigrants already here, but over how many are allowed to come in the future. Use of the pardon would further undermine trust that Ds would enforce any future legislative bargain.

  3. Greg Weeks December 5, 2011 at 4:32 pm #

    Because immigration involves civil offenses, and pardons apply only to federal criminal offenses.

  4. RobC December 5, 2011 at 6:43 pm #

    Greg Weeks is correct. The President can pardon persons who entered the United States illegally, thereby granting them permanent protection from criminal prosecution for their presence here, but he can’t prevent future Presidents from expelling them, which does not require a criminal proceeding.

  5. TR Donoghue December 6, 2011 at 8:32 am #

    What Greg Weeks said, the pardon power doesn’t apply to undocumented immigrants as they haven’t committed a crime.

  6. Eric December 6, 2011 at 2:35 pm #

    He can also just order ICE to stop enforcing the law, which he has already done. Giving them legal status or citizenship would be another matter.

  7. Gabe Thompson December 6, 2011 at 4:27 pm #

    He can and has directed agencies to use discretion in certain cases:
    …..very much the opposite of non-action. If reelected, Obama will address this head on which could be a legacy that ends up turning the economy around (of course, he will be gone by the time the effects are felt, so will get little credit by a forgetful public).

  8. David Tomlin December 7, 2011 at 3:35 am #

    A sitting president can use discretion, but he can’t bind future administrations, as a pardon would if that power were applicable.

  9. WrittenDescription July 20, 2013 at 8:17 am #

    No, Obama doesn’t have the constitutional power to grant amnesty to illegal immigrants. Pardoning an unknown number of illegal immigrants for their immigration violations operates as a generalized nullification the applicable immigration laws, rather than as a lawful and particularized exercise of the presidential power of pardon. Consider the simple conundrum of trying to determine to whom the pardon applies, so that it does not operate as an a priori suspension of immigration laws.