At Law & Liberty, Philip Hamburger: The Personal Pardon Power. From the introduction:
Last week, the Senate Judiciary Committee held a hearing on the Biden administration’s last-minute pardons, many of which appear to have been signed by autopen. Although autopens are used regularly by politicians for all sorts of reasons, the pardons raise profound constitutional questions because of lingering concerns about Biden’s competency. The issue most commonly discussed is whether he understood what was being done in his name. But there is an even more fundamental question about delegation: When the Constitution says that the president “shall have Power to grant … Pardons for Offenses against the United States,” does it require the president himself to make the decision? Or can he leave it to others?
The pardon power developed for centuries among the English, prompting Chief Justice John Marshall to observe in 1833 that we must “adopt their principles respecting the operation and effect of a pardon.” Most central of those principles was that the pardon power was an absolute prerogative, meaning it was a power so personal to the monarch that it couldn’t be delegated. …
And from later on, an episode relevant as well to the prevalence of judicial review before the U.S. Constitution was adopted:
Can a pardon made by the wrong person be held void in the United States? A powerful hint comes from the 1782 Virginia case of Commonwealth v. Caton et al. Although the three defendants had briefly joined the British and had therefore been convicted of treason, the House of Delegates pardoned them.
The Virginia Constitution permitted a statute to locate the pardon power in the House of Delegates—this already being a hint that when a constitution permitted a transfer of the power, it said as much. The problem for the defendants was that the Treason Act, under which they were convicted, provided for a pardon only by both legislative houses. Although the House pardoned the three traitors, the Senate concluded that, under the Constitution, it shouldn’t add its approval. The high sheriff in Richmond therefore, found himself in a quandary. He had a court rule ordering him to execute the prisoner and a pardon resolution from only the House.
When the case eventually reached the Court of Appeals, Attorney General Edmund Randolph dramatically abandoned his prosecutorial posture to support the claim of the prisoners that the treason statute was unconstitutional for transferring the pardon power to both legislative houses. Believing that “my office does not extinguish that respect, which I shall owe to the constitution,” Randolph declared “that every law against the constitution may be declared void.”
The court ultimately upheld the statute, apparently on the theory that the Constitution merely set a minimum level of legislative approval, without barring a statute from setting a high level. The Court’s President, Edmund Pendleton, emphasized, however, that if the statute locating the pardon power in both houses had been “repugnant to the Constitution,” he would have held it void.
Posted at 6:20 AM