“We note that the clemency power could not give legal status to any undocumented individual,” a White House official told BuzzFeed
. “As we have repeatedly said for years, only Congress can create legal status for undocumented individuals.”
The Obama administration’s response misses the point. No one is asking for legal status for the DREAMers; what House Democrats are seeking is a presidential pardon for them. This would be completely within the President’s constitutional and legal authority, and in keeping with historical precedent. With his legacy on immigration at stake, Obama should do the right thing and grant the DREAMers a pardon.
The power to pardon is one of the broadest powers granted to the President under the Constitution. Article II, Section 2 states that “The president … shall have power to grant reprieves and pardons for offenses against the United States, except for cases of impeachment.” Past beneficiaries of presidential pardons
have included everyone from George Steinbrenner to Jimmy Hoffa to Patty Hearst. This power is exercised at the President’s discretion and is not reviewable by Congress.
Granting the DREAMers a pardon would be the least the President could do to protect their futures. Under the 2012 Deferred Action program, the Obama administration encouraged thousands of young people to come out of the shadows and provide the government with their names, addresses and personal information.
This same data could be used to round them up for removal under a Trump administration, which may well include immigration hard-liners like Sen. Jeff Sessions, R-Alabama, Trump’s pick for attorney general, or Kris Kobach
, the anti-immigrant Kansas secretary of state behind Arizona’s controversial SB-1070 law who has been mentioned as a possible choice for secretary of homeland security. It would be a cruel irony if Obama were to turn his back on those here illegally — through no fault of their own — after he helped expose them to risk of deportation.
Some analysts maintain
the President cannot pardon the DREAMers because immigration violations are civil matters,
not federal crimes as described by the Department of Justice as a prerequisite for pardons. But Yale Law School lecturer Noah Messing has made a strong case that presidents may indeed pardon civil offenses. Messing notes that
what we now know as civil offenses were criminal offenses at the time of the Constitutional Convention in 1787, or simply went unpunished. So it was not the Founding Fathers’ intent to restrict pardons to federal crimes.
In fact, civil offenses did not even exist in the United States until the 1840s. Prior to that, US presidents pardoned people for what would be considered civil offenses today. Messing’s conclusions are supported by
other legal experts. The idea that pardons can only be granted for federal crimes is a myth.
Moreover, the Supreme Court has never specifically looked at the issue of presidential pardons for civil offenses. As far back as Ex parte Garland (1866),
however, it did find that the pardon power “extends to every offense known to law.” This case has also been interpreted to mean that a person can be pardoned for a crime regardless of
whether charges were filed.
There is certainly no bar to a President issuing a pardon to groups of people, rather than individuals. In 1863, Abraham Lincoln pardoned
former Confederate soldiers, while in 1893 Benjamin Harrison pardoned members
of the Church of Latter-Day Saints (Mormons) for polygamy.
In 1977, Jimmy Carter granted pardons
to thousands of Americans who had evaded the draft during the Vietnam War.
True, the White House has said the President will likely not be pardoning DREAMers. Yet Obama has reversed himself several times on immigration. In 2011, he said he could not suspend
deportations through executive order, and then in 2012 announced the Deferred Action program. In 2013, Obama said
he could not broaden that plan, and then in 2014 rolled out
its proposed expansion, which ultimately failed due to legal challenges by Republican governors.
Pardoning the DREAMers will simply allow them to live without fear of removal, and to potentially adjust their status in the future. It would also balance Obama’s record as having deported more people
than any other president.
History does not give much credit to intentions. If Obama wants to be remembered as a friend to immigrants, he must pardon the DREAMers.