President Barack Obama is taking big steps in his final days in office, like banning oil drilling in the Atlantic. Now both friends and critics alike are asking if he might use his executive authority for another controversial issue – a potential pardon of undocumented immigrants. But how might that work?
Valley Public Radio spoke with USC law professor Niels Frenzen about the constitutionality of such a decision and how it might play out in the real world.
Is it within President Obama’s power to issue a mass pardon of undocumented immigrants?
There is disagreement on that. There is an argument as to why it would be possible. It is definitely not something that has been done in this context before, but I think he probably would have the authority to do this. It would probably be something that would be challenged in the courts and ultimately the Supreme Court might have the final word on it. But I think there is a basis in the Constitution to do it.
Explain your position that he would have the power:
Traditionally, the presidential pardon power has been used to pardon individuals who have been convicted of federal crimes or individuals who have committed offenses who have not yet been charged. One of the famous examples of that is President Ford pardoning President Nixon for any crimes he may have committed. We have this sort of knee jerk reaction, if you will, and I think this is the response we have seen from the Attorney General and from some of Obama’s staffers is that the pardon authority is limited to criminal offenses. But the constitution’s language actually refers the president having, and I quote, ‘power to grant reprieves and pardons for offenses against the United States’. So there is nothing in the language of the constitution that limits this to criminal offenses. And in the immigration world, if we want to talk about the 10 or 11-million undocumented people in the United States, they are theoretically facing removal from the United States under civil provisions of the immigration laws but those are arguably offenses against the United States. Which would arguably make those individuals immune from being deported on those specific grounds.
How would he be able to issue a pardon without know the name of every undocumented immigrant?
That is a legitimate question. So there would be a question as to whether or not a pardon has to specifically say ‘Niels Frenzen, USC professor is pardoned for any immigration offenses’ or whether it could simply define the population. (For example), ‘anyone who is not a U.S. citizen who entered the United States on or before January 1, 2016 and who is potentially subject to deportation from the United States for one of these reason’ the type of presidential pardon where the president is defining a class of individuals, that might be perfectly acceptable. We do have a history in this country of mass pardons. The one example I can think of was President Carter issuing a presidential pardon for individuals who were draft resisters during the Vietnamese War. And that was a blanket pardon. I don’t believe that pardon listed the thousands of young men who were covered by it.
What about immigrants who have committed crimes? Would the pardon wipe that away?
It’s worth mentioning, in the federal immigration law there are 50 or 60 distinct reasons why a non-citizen can be deported from the United States. One would not expect, and I don’t think anyone is asking Obama, to pardon every immigrant in the United States who is potentially subject to future deportation from the United State under any of the 50 or 60 grounds that exist. You can be deported for having engaged in genocide. You can be deported for murder. I think the ask from immigrant advocates is for this is be a very broad pardon but for it to delineate certain specific grounds of removability as they are known. Entry without inspection. Overstaying a visa. Things like that.
This would be pretty incredible either way though, right?
It would be a pretty remarkable event. And certainly, I know in President Obama’s various exit interviews he has indicated that he is not going to be doing this. I know several of his top immigration advisors have said he is not going to be doing this. I know the Attorney General has said he is not going to be doing this. But things can change. Now, having said that. The constitutional authority in Article 2 of the Constitution giving this authority to the president, I don’t know if I can say it is completely immune from judicial challenge. But it is pretty much an absolute power given to the president.
