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A Constitutional loophole.

Dittohead not! said:
I'm sure they didn't.

Could the states have regulated the production of wheat on their own?
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sure, each state-the commerce clause was never intended to give the congress power over what individual citizens did in their own home states and 100+ years of precedent had stated that. If FDR wanted that power, he should have convinced a majority of the states to pass an amendment. I sometimes think your understanding of libertarian values are not consistent with most of those of us who claim to be libertarian.
 
Torus34 said:
A while back, President of the United States of America gave the talking heads and the news media something to fill time and space. He stated that he could pardon himself.

In fact, the Constitution is entirely silent with regard to the presidential pardon except for establishing it. The sole remedy for the misuse of the pardon is impeachment.

So ... If we have a would-be dictator in the White House and his/her party is willing to go along and holds a majority of the seats in the Senate, there is no remedy.

The founders seem, even given their mistrust of democracy, to have let one slip by here.
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I don’t get your point. A presidential pardon relates to criminal convictions. Impeachment is not a criminal procedure. The fact that there may not be enough senators to vote guilty on articles of impeachment is just like a jury not voting for liability. One has nothing to do with the other.
 
TurtleDude said:
sure, each state-the commerce clause was never intended to give the congress power over what individual citizens did in their own home states and 100+ years of precedent had stated that. If FDR wanted that power, he should have convinced a majority of the states to pass an amendment. I sometimes think your understanding of libertarian values are not consistent with most of those of us who claim to be libertarian.
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I actually lean more to the practical side. Decisions based on ideology seldom work, those based on pragmatism generally do.
 
Dittohead not! said:
I actually lean more to the practical side. Decisions based on ideology seldom work, those based on pragmatism generally do.
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Most of the problems we have with too much federal government comes from that era. Example-the ATF claims that if you have a legal medical marijuana card-you cannot legally buy or own a firearm. That sort of idiocy is only possible due to the progeny of the Wickard idiocy
 
Torus34 said:
A while back, President of the United States of America gave the talking heads and the news media something to fill time and space. He stated that he could pardon himself.

In fact, the Constitution is entirely silent with regard to the presidential pardon except for establishing it. The sole remedy for the misuse of the pardon is impeachment.

So ... If we have a would-be dictator in the White House and his/her party is willing to go along and holds a majority of the seats in the Senate, there is no remedy.

The founders seem, even given their mistrust of democracy, to have let one slip by here.
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Even worse is the president has a bunch of henchmen. Say, they go around killing people who oppose their views. The president gives them a pardon.

That's a pretty frightening scenario.
 
Frigidweirdo said:
Even worse is the president has a bunch of henchmen. Say, they go around killing people who oppose their views. The president gives them a pardon.

That's a pretty frightening scenario.
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States can still prosecute those individuals for murder.
 
Torus34 said:
A while back, President of the United States of America gave the talking heads and the news media something to fill time and space. He stated that he could pardon himself.

In fact, the Constitution is entirely silent with regard to the presidential pardon except for establishing it. The sole remedy for the misuse of the pardon is impeachment.

So ... If we have a would-be dictator in the White House and his/her party is willing to go along and holds a majority of the seats in the Senate, there is no remedy.

The founders seem, even given their mistrust of democracy, to have let one slip by here.
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The US Constitution is not as silent on the issue as you think.

Article II, Section 2, Clause 1 of the US Constitution states:
The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States; he may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices, and he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.
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That already limits the presidential pardon to only those offenses against the United States. Meaning the President may not pardon himself, or anyone else, involved in a private civil or State criminal matter. The President's pardon authority extends only to federal charges.

With regard to federal charges, however, the Supreme Court in Ex parte Garland, 71 U.S. (4 Wall.) 333 (1866) held in a 5-4 decision that the President's power to grant pardons was "unlimited," except for impeachments.

In Murphy v. Ford, 390 F. Supp. 1372 (W.D. Mich. 1975), the Federal District Court in Michigan rejected a suit for a declaratory judgment that President Ford's unconditional pardon of Nixon was unconstitutional. The court found that the President had the constitutional power to grant a pre-indictment pardon, citing Ex parte Garland in its support.

The President may even pardon individuals before they are charged with a crime.

The only valid argument against a President pardoning themselves is in Federalist #10, where Madison states that "No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity."

However, beyond that statement in Federalist #10, there seems to be no compelling legal argument against the presidential pardon including the President. Politically speaking it would be a disaster, and would completely undermine everything the President attempted to do thereafter.

The solution to prevent a President from pardoning themselves, of course, is to bring up Articles of Impeachment in the House. Failing an impeachment by the House, the President does indeed have the constitutional authority to pardon any federal offense, real or imagined, before or after-the-fact.
 
Frigidweirdo said:
Sure they can. Though what would happen in DC?
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I wondered if you would bring this up. Good question. My gut tells me that the police powers of DC do not avail themselves of a presidential pardon. Of course, I could be completely wrong about this.
 
TurtleDude said:
it was a complete power grab that violated the tenth amendment. No one with a straight face could claim the founders intended that sort of federal power. It essentially allowed congress to pass any law it wanted to as long as it merely stated that it affected interstate commerce.
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The Wheat Cases were not violative of the 10th amendment, as that has never been interpreted as an explicit restriction on federal authority. Rather, it was violative of article 1, section 8 because domestic wheat production is emphatically not interstate commerce.

These cases were the genesis of the market/based justification of Obamacare. There’s a reason knot FDR and Obama invoked that theory - they’re both essentially fascist.
 
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clapee said:
I wondered if you would bring this up. Good question. My gut tells me that the police powers of DC do not avail themselves of a presidential pardon. Of course, I could be completely wrong about this.
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And whenever there's such uncertainty about procedure, someone like Trump (not necessarily Trump, the next one maybe?) can then take advantage.

It's why the Constitution is getting very dated.
 
Glitch said:
The US Constitution is not as silent on the issue as you think.

Article II, Section 2, Clause 1 of the US Constitution states:


That already limits the presidential pardon to only those offenses against the United States. Meaning the President may not pardon himself, or anyone else, involved in a private civil or State criminal matter. The President's pardon authority extends only to federal charges.

With regard to federal charges, however, the Supreme Court in Ex parte Garland, 71 U.S. (4 Wall.) 333 (1866) held in a 5-4 decision that the President's power to grant pardons was "unlimited," except for impeachments.

In Murphy v. Ford, 390 F. Supp. 1372 (W.D. Mich. 1975), the Federal District Court in Michigan rejected a suit for a declaratory judgment that President Ford's unconditional pardon of Nixon was unconstitutional. The court found that the President had the constitutional power to grant a pre-indictment pardon, citing Ex parte Garland in its support.

The President may even pardon individuals before they are charged with a crime.

The only valid argument against a President pardoning themselves is in Federalist #10, where Madison states that "No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity."

However, beyond that statement in Federalist #10, there seems to be no compelling legal argument against the presidential pardon including the President. Politically speaking it would be a disaster, and would completely undermine everything the President attempted to do thereafter.

The solution to prevent a President from pardoning themselves, of course, is to bring up Articles of Impeachment in the House. Failing an impeachment by the House, the President does indeed have the constitutional authority to pardon any federal offense, real or imagined, before or after-the-fact.
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Hi! Thank you for your clearly-reasoned response.

Regards.
 
Frigidweirdo said:
Even worse is the president has a bunch of henchmen. Say, they go around killing people who oppose their views. The president gives them a pardon.

That's a pretty frightening scenario.
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Hi!. Yup, it most certainly is. As far as I know, this has not been the case in the present Presidency. We did have an instance a while back in which, at a rally, President of the United States of America Donald Trump appeared to condone physical violence with a pardon possible, but nothing further came of it.

Regards.

Regards.
 
clapee said:
I don’t get your point. A presidential pardon relates to criminal convictions. Impeachment is not a criminal procedure. The fact that there may not be enough senators to vote guilty on articles of impeachment is just like a jury not voting for liability. One has nothing to do with the other.
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Hi!. Thanks for posting. Impeachment -- the bringing of a charge against the President of the United States of America in the House of Representatives -- is of little consequence to a sitting President if, and it's a big 'if', the President's party holds a majority of the seats in the Senate and will decide that the charges do not rise to the level of an impeachable offense. That decision is a political one, not a legal one.

A President intent on creating a party 'dictatorship' would simply continue on toward the goal.

Regards.
 
clapee said:
The Wheat Cases were not violative of the 10th amendment, as that has never been interpreted as an explicit restriction on federal authority. Rather, it was violative of article 1, section 8 because domestic wheat production is emphatically not interstate commerce.

These cases were the genesis of the market/based justification of Obamacare. There’s a reason knot FDR and Obama invoked that theory - they’re both essentially fascist.
Click to expand...

I might slightly disagree with the tenth amendment because it was used to strike down some of the early ND nonsense but the rest is spot on
 
TurtleDude said:
Most of the problems we have with too much federal government comes from that era. Example-the ATF claims that if you have a legal medical marijuana card-you cannot legally buy or own a firearm. That sort of idiocy is only possible due to the progeny of the Wickard idiocy
Click to expand...

and the individual states don't promote any sort of idiocy?
 
Dittohead not! said:
and the individual states don't promote any sort of idiocy?
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they do but if you understood the founders' wisdom, if a state did something stupid, people would move. For example, if california say passes a law guaranteeing each citizen an income of 50K a year and the state's citizens who pay taxes had to fund that-within several years, the state would be flooded with indigents from other states. And then many of those facing tax increase after tax increase would move out. And that is a check and balance on an individual state doing something stupid.
 
Torus34 said:
A while back, President of the United States of America gave the talking heads and the news media something to fill time and space. He stated that he could pardon himself.

In fact, the Constitution is entirely silent with regard to the presidential pardon except for establishing it. The sole remedy for the misuse of the pardon is impeachment.

So ... If we have a would-be dictator in the White House and his/her party is willing to go along and holds a majority of the seats in the Senate, there is no remedy.

The founders seem, even given their mistrust of democracy, to have let one slip by here.
Click to expand...

Impeachment was never meant to be easy. A simple majority in the House can bring impeachment charges forcing a trial in the senate. But it takes 2/3rds vote in the senate to convict and remove, 67 senators if all are present and voting. As for pardoning himself, the SCOTUS would have to rule on that. Yes, the Constitution is moot, but we can fall back on original intent of the framers. Here's an interesting article on self-pardoning.

Self-Pardons: The President Can't Pardon Himself, So Why Do People Think He Can? - Lawfare

The reality of the situation is we won't know if he can or can't until the SCOTUS rules. Opinions on the law and the Constitution are just that until the SCOTUS rules on it. Then it is no longer an opinion, but fact.
 
TurtleDude said:
they do but if you understood the founders' wisdom, if a state did something stupid, people would move. For example, if california say passes a law guaranteeing each citizen an income of 50K a year and the state's citizens who pay taxes had to fund that-within several years, the state would be flooded with indigents from other states. And then many of those facing tax increase after tax increase would move out. And that is a check and balance on an individual state doing something stupid.
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That's right, and if one state decided to outlaw slavery, then that wouldn't affect the other states. When the federal government decided to outlaw slavery, then several sovereign states decided to leave the union. States rights should have allowed them to do so.

Does the term "balkinization" ring a bell?
 
Perotista said:
Impeachment was never meant to be easy. A simple majority in the House can bring impeachment charges forcing a trial in the senate. But it takes 2/3rds vote in the senate to convict and remove, 67 senators if all are present and voting. As for pardoning himself, the SCOTUS would have to rule on that. Yes, the Constitution is moot, but we can fall back on original intent of the framers. Here's an interesting article on self-pardoning.

Self-Pardons: The President Can't Pardon Himself, So Why Do People Think He Can? - Lawfare

The reality of the situation is we won't know if he can or can't until the SCOTUS rules. Opinions on the law and the Constitution are just that until the SCOTUS rules on it. Then it is no longer an opinion, but fact.
Click to expand...

The Supreme Court has ruled on presidential pardons in Ex parte Garland, 71 U.S. (4 Wall.) 333 (1866) held in a 5-4 decision that the President's power to grant pardons was "unlimited," except for impeachments obviously. Which means that a President may pardon any federal crime (but not private civil cases or State crimes), real or imagined, whether they have been charged or not. The only thing that prevents a President from pardoning themselves are impeachment proceedings by the House. If the House were to construct Articles of Impeachment that listed specific federal crimes, then the President may not pardon those crimes. However, failing Articles of Impeachment by the House the President has the constitutional authority to pardon anyone (including himself) of any federal crime, real or imagined, in advance or after-the-fact.
 
Torus34 said:
A while back, President of the United States of America gave the talking heads and the news media something to fill time and space. He stated that he could pardon himself.

In fact, the Constitution is entirely silent with regard to the presidential pardon except for establishing it. The sole remedy for the misuse of the pardon is impeachment.

So ... If we have a would-be dictator in the White House and his/her party is willing to go along and holds a majority of the seats in the Senate, there is no remedy.

The founders seem, even given their mistrust of democracy, to have let one slip by here.
Click to expand...



The remedy is impeachment so self-pardon cannot slip-by without consequence by choice of Congress. I can see this being passed-over by the SC or decided for that reason. There is remedy, not their problem. The Legislative Branch has the power of impeachment as Constitutional remedy for abuse of power is so determined. It's a political problem, not for the SC to decide.
 
bluesmoke said:
The remedy is impeachment so self-pardon cannot slip-by without consequence by choice of Congress. I can see this being passed-over by the SC or decided for that reason. There is remedy, not their problem. The Legislative Branch has the power of impeachment as Constitutional remedy for abuse of power is so determined. It's a political problem, not for the SC to decide.
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Correct. Once Articles of Impeachment have been drafted by the House (even before a vote), the specific federal crimes listed cannot be pardoned.

It would also be political suicide for any President to pardon themselves (assuming they were not being impeached), because nobody could trust anything they did after that. Interestingly, "Abuse of Power" which was including in both Nixon's and Clinton's Articles of Impeachment, but it is not an offense against the United States. Which means that it is not pardonable by a President.

The President's pardon powers only extend to "offenses against the United States" and no further.
 
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Glitch said:
...the President's pardon powers only extend to "offenses against the United States" and no further.
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Are you sure that's true.

Can't the president overturn a federal conviction ?
Can't the president, as commander-in-chief, dismiss any court martial ?
 
Rich2018 said:
Are you sure that's true.

Can't the president overturn a federal conviction ?
Can't the president, as commander-in-chief, dismiss any court martial ?
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That is what Article II, Section 2, Clause 1 of the US Constitution says:
The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States; he may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices, and he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.
Click to expand...

The phrase "offenses against the United States" excludes civil proceedings and State crimes. I'm not sure if the Articles listed within the UCMJ constitute crimes against the United States, or just the military. For example, there is no federal crime in the US Code for being "absent without leave," but there is in the UCMJ. If federal crimes where to coincide with Articles under the UCMJ, then I would think those would be pardonable by the President. Otherwise, I don't think they would be pardonable since the US Constitution is very specific in this regard. The President may only pardon federal offenses.

There is also the Navy SEAL that Trump is considering pardoning. He was charged with several federal offenses. Which would seem to imply that the President can pardon military personnel accused of federal crimes.

See: Trump Reportedly Preparing Pardons for SEAL, Green Beret Accused of Crimes
 
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Glitch said:
That is what Article II, Section 2, Clause 1 of the US Constitution says:


The phrase "offenses against the United States" excludes civil proceedings and State crimes. I'm not sure if the Articles listed within the UCMJ constitute crimes against the United States, or just the military. For example, there is no federal crime in the US Code for being "absent without leave," but there is in the UCMJ. If federal crimes where to coincide with Articles under the UCMJ, then I would think those would be pardonable by the President. Otherwise, I don't think they would be pardonable since the US Constitution is very specific in this regard. The President may only pardon federal offenses.

There is also the Navy SEAL that Trump is considering pardoning. He was charged with several federal offenses. Which would seem to imply that the President can pardon military personnel accused of federal crimes.

See: Trump Reportedly Preparing Pardons for SEAL, Green Beret Accused of Crimes
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I'm pretty sure the President can pardon a person convicted by a federal court or by court martial.
 
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