McCarthy strongly criticizes Obama and Holder here. It’s worth reading the whole thing; too bad most Americans won’t read even a single sentence of it. Here’s an excerpt:
…[I]n making a mockery of his core constitutional duty to execute the laws faithfully, the broad law-enforcement discretion the Constitution vests in the executive branch has been President Obama’s preferred sleight of hand…Thus is “prosecutorial discretion” the subterfuge for usurping congressional law-making power ”” the maze of unilateral waivers, amendments, and whole-cloth weaving that marks Obama’s enforcement of the “Affordable” Care Act, the immigration laws, and other federal statutes.
Alas, the next item on the transformational-change agenda is undoing prior administrations’ faithful execution of the narcotics laws. The forward-looking prosecutorial-discretion doctrine is unavailing to address the past. That is where the pardon power comes in…
President Obama and Attorney General Eric Holder, will use the executive’s pardon power to rewrite the narcotics statutes. This is a gross abuse. The pardon power exists to mitigate injustice in individual cases. The president, to the contrary, proposes to use it to target laws he disagrees with ”” laws whose constitutionality is beyond dispute but to which he objects on policy grounds. Which is to say: laws that it is his solemn constitutional duty to execute faithfully, not undermine.
As usual, the administration’s story is rife with fraud. Holder carefully talks about “non-violent” drug “offenders.” Obama riffs about “kids or individual users” supposedly “lock[ed] up . . . for long stretches of jail time.” You are left to imagine poor addicts who never hurt anyone but themselves, languishing for decades in some super-max prison. Yet federal drug enforcement targets felony drug dealers, not simple possession of drugs ”” the latter is left to the states. Mere users of marijuana and crack are not wasting away in federal penitentiaries. Moreover, an offender sentenced under a mandatory-minimum provision has necessarily committed a significant narcotics felony; the felony distribution of minor amounts of narcotics is not subject to a mandatory minimum, and judges maintain discretion to sentence those offenders to little or no jail time. Obama and Holder are talking about freeing what could amount to thousands of serious criminals…
A lawless president does more than violate his oath and demonstrate his unfitness. He forfeits trust. You say you want immigration reformed? You say you want drug policy rethought? Opinions on these matters vary widely, but one thing is for certain: It makes no sense to legislate on a subject that hinges on effective law enforcement unless you can trust that the law you pass will be the law. That means you have to be able to trust the president. With this president, it means waiting for the next president.
Obama and Holder’s actions should be of bipartisan concern. It is outrageous that they are not.
The comments section of McCarthy’s article is interesting to read, as well. A lot of the comments are from Obama’s supporters, praising him and excoriating McCarthy for ignoring the fact that presidents have broad pardon power. They do, but as McCarthy states in his essay:
The pardon power exists to mitigate injustice in individual cases. The president, to the contrary, proposes to use it to target laws he disagrees with ”” laws whose constitutionality is beyond dispute but to which he objects on policy grounds. Which is to say: laws that it is his solemn constitutional duty to execute faithfully, not undermine.
It’s true that the Constitution does not explicitly limit the sort of thing Obama/Holder are doing here. But that could be because it may have been considered obvious that getting around constitutional laws by pardoning broad classes of people who violate a certain law would in itself be a violation, perhaps even worthy of impeachment.
If you want to read about the legal status of presidential pardons, see this. It seems fairly clear to me that almost all previous presidential pardons (and the entire process that has grown up to expedite them) have applied to individuals or to groups of people engaged in a particular incident (such as, for example, Washington’s pardon of the leaders of the Whiskey Rebellion, as opposed to pardoning anyone participating in acts of rebellion). There is one glaring exception, however: Jefferson’s pardon of editors violating the extremely controversial Alien and Sedition Acts.
It’s instructive to go back and look at what Jefferson did, and what people have had to say about it since. The Alien and Sedition Acts were extremely notorious even in their own day for seeming to violate the principles of free speech and freedom of the press. Unlike the far more pedestrian narcotics laws Obama and Holder are affecting by their acts of pardon, the Alien and Sedition Laws had never been subject to Supreme Court judicial review, since the right to do so had not yet been established yet by Marbury vs. Madison. But this was the situation:
The Democratic-Republicans made the Alien and Sedition Acts an important issue in the 1800 election. Thomas Jefferson, upon assuming the Presidency, pardoned those still serving sentences under the Sedition Act, though he also used the acts to prosecute several of his own critics before the acts expired…While government authorities prepared lists of aliens for deportation, many aliens fled the country during the debate over the Alien and Sedition Acts, and Adams never signed a deportation order.
The Alien and Sedition Acts were never appealed to the Supreme Court, whose right of judicial review was not established until Marbury v. Madison in 1803. Subsequent mentions in Supreme Court opinions beginning in the mid-20th century have assumed that the Sedition Act would today be found unconstitutional.
Jefferson and James Madison also secretly drafted the Kentucky and Virginia Resolutions denouncing the federal legislation, though many other state legislatures strongly opposed these resolutions. Though the resolutions followed Madison’s “interposition” approach, Jefferson advocated nullification and at one point drafted a threat for Kentucky to secede. Jefferson’s biographer Dumas Malone argued that this might have gotten Jefferson impeached for treason, had his actions become known at the time. In writing the Kentucky Resolutions, Jefferson warned that, “unless arrested at the threshold,” the Alien and Sedition Acts would “necessarily drive these states into revolution and blood.” Historian Ron Chernow says of this “he wasn’t calling for peaceful protests or civil disobedience: he was calling for outright rebellion, if needed, against the federal government of which he was vice president.” Jefferson “thus set forth a radical doctrine of states’ rights that effectively undermined the constitution.” Chernow argues that neither Jefferson nor Madison sensed that they had sponsored measures as inimical as the Alien and Sedition Acts themselves. Historian Garry Wills argued “Their nullification effort, if others had picked it up, would have been a greater threat to freedom than the misguided [alien and sedition] laws, which were soon rendered feckless by ridicule and electoral pressure.” The theoretical damage of the Kentucky and Virginia resolutions was “deep and lasting, and was a recipe for disunion”. George Washington was so appalled by them that he told Patrick Henry that if “systematically and pertinaciously pursued”, they would “dissolve the union or produce coercion”. The influence of Jefferson’s doctrine of states’ rights reverberated right up to the Civil War and beyond.
These are far from trivial questions, although the states’ rights issue does not come up in the present situation re Obama, Holder, and the drug pardons. However, it is clear that pardoning a class of criminals is an exceedingly unusual act even under the presidents’ broad pardon powers, and that Obama and Holder’s announcement should arouse tremendous outrage and concern.
Of course, that’s true of an awful lot of what they’ve done. But it’s only the right that seems to care.
