Myrtle Beach, SC
Attempt the sunlight. Do not sell a ban as anything but a marker.
The clause is a wall and the Supreme Court has said so in about as few words as it ever uses. A statute reading “the president may not pardon before charge” or “the president may not pardon a relative” is a dare, and it will lose, and losing it will teach the public the wrong lesson — that nothing here can be touched at all.
Something here can be touched. What Congress can regulate is the executive branch’s own paperwork, and that is where I would spend the effort.
I work in marketing, which means I think about what a document communicates rather than what it permits. The failure in the January 20 package was not that a president pardoned people he was allowed to pardon. It was that the documents told the country nothing. Names, no conduct, an eleven-year window on the family instruments, and a statement saying nobody had done anything wrong.
A reporting statute could require that every grant of clemency be accompanied, within some short period, by a public filing stating: who received it, the covered period, the conduct or category of conduct being remitted, whether the Office of the Pardon Attorney reviewed the petition, and the ground on which it was granted. None of that limits the power. All of it regulates the record the executive branch produces about the power.
That distinction is the whole game, and it is the one this Forum should be careful to preserve rather than blur.
Would a filing requirement have stopped any of this? No. Ford would have filed. Bush would have filed. Biden would have filed and the filing might well have said very little. But it would have said something, and something is what makes an act arguable. A citizen cannot object to a decision whose reasons are withheld, and the only accountability the clause leaves is public objection.
So my answer is: attempt the reporting rule, expect it to survive, and expect a substantive ban to die. Both halves of the question are right about different devices, which is an unsatisfying answer and the correct one.
What I would not do is what most of the bills introduced in the last month do, which is lead with the ban and bury the disclosure in section nine. Write the bill so the death of the ban does not take the list with it.
Novi, MI
A plant can require a defect tag even when the owner keeps the stop button. That is the honest scope of what Congress can do here, and I want to establish it with the actual authority rather than by assertion, because the authority is unusually clear.
Ex parte Garland, 1866: the pardon power “is not subject to legislative control. Congress can neither limit the effect of his pardon, nor exclude from its exercise any class of offenders.”
Schick v. Reed, 1974, decided three months after Ford pardoned Nixon: the power “flows from the Constitution alone, not from any legislative enactments, and… cannot be modified, abridged, or diminished by the Congress.”
Those are not close cases and they are not old dicta that has drifted. They are direct holdings, a century apart, saying the same thing in nearly the same words.
So a statute prohibiting preemptive pardons, or pardons of relatives, or pardons covering unnamed future charges, would fail. Not might fail. Would. Anybody drafting one is drafting a press release.
In quality terms, this is a control the plant does not own. The owner has the stop button and the contract says so. What a quality system does in that situation is not pretend otherwise. It documents.
Here is what documentation can reach without touching the clause, and I want to be specific because vague reform proposals are how nothing gets done.
The Office of the Pardon Attorney sits inside the Justice Department and operates under published regulations. Petitions are supposed to be filed there, investigated, and forwarded with a recommendation. The regulations impose a waiting period after conviction and require a substantial record. None of that is constitutionally required — the President may bypass it entirely, and in this package he did, almost across the board.
But the regulations are executive-branch procedure, and Congress can legislate about executive-branch procedure. It can require that the Department report, for each grant, whether a petition was filed, whether the office reviewed it, what recommendation was made, and whether the grant departed from that recommendation. It can require that departures be explained in writing. It can require the whole record be transmitted to the Judiciary Committees within thirty days.
None of that limits who may be pardoned or for what. All of it produces a file.
The second thing Congress can reach is corruption in the exchange, and it already has. Bribery of a public official is a crime, and the Justice Department’s position for decades has been that the unreviewability of the pardon itself does not immunize a corrupt bargain to obtain one. That is an existing limit with teeth, and it is the only substantive one that survives Garland.
Would either of those have changed the January 20 package? The reporting rule would have forced a document. It would not have forced a good one, and I want to be honest that a determined administration can file a paragraph of nothing and comply. The bribery statute is irrelevant here; there is no allegation of an exchange.
So the expected yield from legislation is modest. Modest is not zero, and the alternative is a bill that dies in court and teaches everybody that the whole subject is untouchable.
Attempt the tag. Do not attempt the button. And write the bill so that when the button provision is struck, the tag provision stands on its own.
Orange County, CA
Orange County writes disclosure requirements when it cannot write a veto, and that is exactly the federal situation. What I want to add is that this has already been attempted once, recently, and the record of that attempt tells you more about the prospects than any constitutional analysis will.
In December of 2021 the House passed the Protecting Our Democracy Act. Among a great many other things, it addressed clemency directly. It required the Justice Department to transmit to Congress materials relating to any pardon or commutation in which the President, his relatives, or a person who had been investigated in connection with the President was the beneficiary. It also included a provision clarifying that offering or accepting a bribe in connection with a pardon is prosecutable.
Note what it did not do. It did not prohibit preemptive pardons. It did not prohibit pardoning relatives. It did not attempt a waiting period. The drafters knew about Ex parte Garland and Schick v. Reed and they wrote around the wall rather than into it — disclosure and corruption, not scope.
It passed the House 220 to 208 and died in the Senate without a vote.
I work in finance and the relevant lesson is not legal. It is about revealed preference. A disclosure-only bill, carefully drafted to survive constitutional challenge, could not clear a Senate in which the party that wrote it held the majority. That tells you the obstacle here is not the clause. It is that neither party wants the file on its own president, and each is content to complain about the other’s.
That should shape what this Forum recommends. There is no point demanding a statute nobody will pass on the theory that the courts are the problem, when the courts have not been the problem for three years.
Now the substance, briefly, since it is settled. A ban would collapse. Garland says Congress can neither limit the effect of a pardon nor exclude any class of offenders from its exercise; Schick says the power cannot be modified, abridged, or diminished by Congress. A statute saying “no preemptive coverage” or “no family members” excludes a class and would fail on the first motion.
Disclosure is different in kind. Congress unquestionably legislates about what the executive branch must report, and a requirement that each grant be accompanied by a public statement of the covered period, the conduct or category of conduct, and whether the Pardon Attorney reviewed the petition regulates paperwork rather than power.
There is a version I would price higher than most, because it is cheap and it bites. Require that the reporting obligation attach before the grant takes effect — that the instrument be transmitted and published, with its statement of reasons, at least some short interval before it is executed. That is not a waiting period on the power. It is a publication requirement on the document, and it makes a last-morning package considerably harder to execute quietly, because the twenty-minute margin disappears.
Whether that survives challenge I do not know, and I would not promise it does. It is at least on the right side of the line the cases draw.
The honest recommendation is: write the disclosure bill, write it narrowly, do not attach a ban to it, and understand that the reason the last one died had nothing to do with the Constitution.
Bismarck, ND
Write a list rule. Do not write “the president may not.” That is my whole position and the case law is not ambiguous about why.
The Supreme Court held in 1866 that the pardon power is not subject to legislative control and that Congress can neither limit the effect of a pardon nor exclude any class of offenders from it. It held again in 1974 that the power cannot be modified, abridged, or diminished by Congress. A statute banning preemptive coverage or family beneficiaries excludes a class. It loses.
In compliance work we run into this constantly. The regulator cannot always reach the decision. It can almost always reach the documentation of the decision, and documentation is where nearly all real accountability comes from anyway.
So here is the list rule I would write. For every grant of clemency: the recipient, the covered period, the conduct or category of conduct remitted, whether a petition was filed with the Office of the Pardon Attorney, whether that office reviewed it and what it recommended, and the ground on which the grant was made. Published. Within a short, fixed number of days.
Now the test I run on everything.
If a Republican Congress passed that statute in 2025 and a Republican president in 2029 had to file that document for pardons of his own relatives, would I still want it? Yes. Would I want it filed by a Democratic president in 2033? Yes, the same document, the same fields.
Same rule both directions, and I want it on record now, while my side is the one complaining.
There is one thing I would add that our discussion has skipped. A reporting rule is only as good as the field definitions. If the statute says “state the reasons,” a determined White House will write two sentences of nothing and comply. If it says “state the conduct or category of conduct for which the grant is made,” the January 20 statement — which asserts that no individual engaged in any wrongdoing — would either have to say something or say nothing in a way that is visible on the form.
Visible nothing is worth having. In examinations, a blank field is a finding.
I would also decline to pretend that Congress is the obstacle here. A disclosure bill of exactly this kind passed the House in 2021 and died in the Senate under the same party that wrote it. The clause is not what stopped it.
Attempt the list. Expect the ban to fall. Do not confuse those two, and do not blame the Constitution for a failure of nerve.
Clermont, FL
You can require a posted sign. You cannot take the owner’s key by a park rule when the deed says the key is his. That was my instinct going in and it survives, with one addition that I think is the most useful thing in this whole question.
There is already a substantive limit on this power, and nobody in this Forum has mentioned it.
Selling a pardon is a crime. Bribery of a public official is prosecutable under federal law, and the Justice Department’s longstanding position is that while the pardon itself cannot be reviewed, a corrupt bargain to obtain one can be charged like any other bribe. The unreviewability of the grant does not immunize the exchange that produced it.
That matters for how this Forum should frame the reform question. The honest statement is not that the clause is an unlimited grant with no legal boundary anywhere. It is that the boundary runs through the transaction rather than through the decision. A president may pardon anyone for any reason and may not be paid for it.
I work with small businesses and this is a distinction owners understand immediately. An owner may hire whom he likes. He may not take a kickback for the hire. The discretion is absolute and the corruption is still a crime, and nobody finds that arrangement confusing in any other context.
So the reform conversation should start from what already exists rather than from a blank page.
What exists: the bribery prohibition, and the Office of the Pardon Attorney process, which is regulatory rather than constitutional and which this package almost entirely bypassed.
What could be added without touching the clause: a requirement that the executive branch report each grant with the covered period, the conduct, and whether the Pardon Attorney reviewed it. That is paperwork about the exercise, not a limit on it.
What cannot be added: any ban. The Court said in 1866 that Congress cannot exclude a class of offenders from the pardon power, and said in 1974 that the power cannot be modified, abridged, or diminished by legislation. A statute barring preemptive pardons or family pardons is a park rule against the deed.
I would put the effort into the sign and be honest with readers about why. Not because the sign will stop anything. Because the deed cannot be rewritten by regular order, and a movement that spends four years demanding an impossible statute will have nothing at all when the next January arrives.
Post the sign. Enforce the bribery law that already exists. Leave the key alone, because the key is not ours to take.
Jacksonville, FL
Ports can require a manifest. They cannot, by local ordinance, repeal a right the charter grants. That is the shape of it, and the useful work is in specifying what a manifest would actually contain, because “more transparency” is not a bill.
Start with what the charter says, since it is settled. The Supreme Court in 1866 held the pardon power is not subject to legislative control and that Congress can neither limit its effect nor exclude any class of offenders from it. In 1974 it held the power cannot be modified, abridged, or diminished by Congress. A ban on preemptive coverage is an exclusion of a class. It fails.
Now the manifest, and here is the piece our discussion has been missing.
There is already a process and this package went around it. The Office of the Pardon Attorney sits in the Justice Department under published regulations. Petitions are filed there. The office investigates, consults the prosecuting office and the sentencing judge, and forwards a recommendation. There is a five-year waiting period after conviction before a petition is ordinarily considered. Thousands of applications sit in that queue.
None of that is constitutionally required. The President may grant clemency to anyone at any time without a petition ever being filed, and that is what happened here — as it also happened with a great deal of the 2020–21 list, and with Ford in 1974, and with Bush in 1992.
That gap between the ordinary process and the extraordinary one is where a reporting statute can do real work, and it can do it without going near the clause.
Require the Department to report, for every grant: whether a petition was filed; whether the Pardon Attorney reviewed it; what the office recommended; whether the grant departed from that recommendation; the covered period; and the conduct or category of conduct remitted. Publish it within thirty days. That regulates a department Congress created, using authority nobody disputes, and it produces exactly the document that has been missing from this file for six weeks.
What would that document have shown on January 20? That no petitions were filed, that the Pardon Attorney reviewed nothing, that the covered period ran eleven years, and that the conduct field was blank. Every one of those is a fact a citizen could have used, and none of them would have required anybody to justify the underlying decision.
A blank field on a required form is a finding. That is the entire value of a manifest and it is why ports use them.
Two further notes for anyone drafting.
First, the bribery prohibition already exists and reaches the transaction even though it cannot reach the decision. That is the only substantive limit available under current law and it should be stated clearly rather than left out, because leaving it out feeds the impression that the power is wholly lawless.
Second, this has been tried. The House passed a disclosure bill in December of 2021 — carefully drafted around the constitutional problem, requiring transmission of clemency materials where the President or his relatives were beneficiaries — and it died in a Senate held by the party that wrote it. The obstacle was never the courts.
So my recommendation is: post the manifest, prosecute the bribery, and stop promising a ban. And write the bill so that when the ban section is struck, the manifest section survives on its own. A bill whose working parts die together teaches the public that nothing here can be reached, and that is both false and useful to everyone who would rather it stayed unreached.
Las Vegas, NV
Make them post the marker. Do not write a house rule the owner cannot be bound by. The cases are clear enough that I am not going to spend my space on them — 1866 and 1974, the power is not subject to legislative control, a ban dies.
What I want to spend it on is the route nobody in this Forum has mentioned, which is the only one that could actually change the power rather than the paperwork.
A constitutional amendment.
That is not a rhetorical flourish. It is the sole mechanism by which any substantive limit on this clause can be enacted, and it has been proposed before. Amendments to constrain the pardon power were introduced after Ford pardoned Nixon in 1974, and again after the 2020–21 package, and again in the last few weeks. None has ever moved out of committee. None will.
The reason is worth stating plainly, because it explains the whole situation. Every president expects to need this power and every party expects to hold the presidency. Neither side will bind its own future man. The bipartisan support required for an amendment is precisely the support that will never exist for this particular amendment.
So the honest answer to the question is: a ban by statute collapses, an amendment never gets written, and what is left is disclosure and public memory. That is a thin remedy and pretending otherwise is not doing readers a service.
There is one boundary that has never been tested and I would flag it, because it is the only place the clause has an edge that anybody has drawn. The Justice Department’s legal counsel concluded in 1974 that a president cannot pardon himself, on the ancient principle that no man may be a judge in his own case. That opinion has never been tested in court, because no president has ever tried it — it was reportedly discussed in January 2021 and not done, and it was not done this January either.
That line is the one real limit anyone has identified, and it exists only as an unlitigated memorandum. If a president ever crosses it, that is the case that decides whether this clause has any boundary at all.
Until then: post the marker, keep the record, and do not sell anybody a rule the house cannot enforce.
Knoxville, TN
Try a list law. Do not promise a ban that beats the clause. The wall is real — the Court said in 1866 that Congress cannot exclude a class of offenders from the pardon power and in 1974 that the power cannot be modified, abridged, or diminished by legislation. Those are the specifications and we do not get to design around them.
What we can design is the record, and I would write it as three lines that any future proclamation carries.
Line one: the covered period, with a stated reason for its length. An eleven-year window is not self-explanatory and a president who wants one should have to say why eleven.
Line two: the conduct or category of conduct being remitted. Not the offense charged, because there may not be one — the category. Carter managed it in 1977: violations of the Selective Service Act between August 1964 and March 1973. Two clauses and the country knew what had been forgiven.
Line three: the ground. Mercy, disparity of sentence, rehabilitation, reconciliation, or protection against a threatened prosecution. Say which. A president who believes he is shielding officials from a bad-faith successor should be made to write that sentence down, because it is a serious claim about the state of the republic and it ought to be on paper over his signature rather than implied.
Three lines. None of them limits who may be pardoned or for what. All of them are paperwork, which is squarely within what Congress may require of the executive branch.
In public works we call this a submittal requirement. The owner still decides. He submits the basis for the decision and it goes in the file, and the file is what an auditor reads five years later when somebody asks how this happened.
I would add one procedural piece. Require the submittal to be published simultaneously with the grant rather than afterward, because a filing obligation that can be satisfied a week later after the administration has left is not a control. It is homework nobody collects.
Would any of this have stopped the January 20 package? No, and I would not claim otherwise. It would have produced a document with three fields, at least one of which would have been visibly empty. That is worth having. A blank on a required form is a finding, and findings are what the next Congress and the next set of voters actually work from.
Expect the ban to fall. Pass the submittal. Write the bill in two severable titles so the second one survives the first.
Sydney, Australia
The Forum’s answer to this question is correct on American law and it stops one step short of the useful comparison, so I will supply it.
The American premise throughout has been that a clemency power is inherently personal and inherently unreviewable, and that the only question is what paperwork Congress may require around the edges. That premise is accurate about the United States and it is not a description of how comparable democracies handle the same function. In Westminster systems the mercy power is exercised differently in three respects, and each of them addresses precisely what this file has been complaining about.
The first is who exercises it. In Australia, the prerogative of mercy is exercised by the Governor-General on the advice of the Attorney-General. In Canada, by the Governor General or the Governor in Council on the recommendation of the Minister of Public Safety. In the United Kingdom, by the Sovereign on the advice of the Justice Secretary. In none of those systems does the head of government hold the power personally. It is formally held by a head of state who does not stand for election and is exercised on ministerial advice that is recorded.
That structural fact does most of the work. A prime minister cannot pardon his brother, because a prime minister cannot pardon anyone. He can advise, and the advice is a document, and the document has an author.
The second is criteria. Canada’s system is the most developed. The Parole Board of Canada investigates applications for the royal prerogative of mercy against published criteria — there must be substantial injustice or undue hardship disproportionate to the offence, and other avenues of relief must be exhausted. It then makes a recommendation to the Minister. Separately, Canada operates an entirely statutory record-suspension scheme under the Criminal Records Act, administered by the Board on published eligibility rules with no executive discretion at all. Australia’s Attorney-General’s Department publishes guidance on how petitions are considered. These are not gestures. They are the reason a Canadian pardon is an administrative decision with a file rather than an act of grace with a press release.
The third is review, and this is the one Americans assume is impossible.
In 1993 the Divisional Court in England considered the Home Secretary’s refusal to grant a posthumous pardon to Derek Bentley, hanged in 1953. The government argued that the prerogative of mercy was an act of grace, immune from judicial scrutiny. The court disagreed. It held that the exercise of the prerogative is not beyond review, that the Secretary of State had misdirected himself about the forms of pardon available to him, and it invited him to reconsider. The pardon followed.
So there is at least one comparable common-law jurisdiction in which the mercy power is subject to judicial review of the reasoning, and the sky did not fall. Australian courts have been more reluctant and the position here is less settled, and I am not going to overstate it. The English case is enough to establish that “clemency is inherently unreviewable” is a proposition about American constitutional design rather than a truth about clemency.
That reframes what this Forum should conclude.
The American problem is not that Congress lacks the power to reform the clause — that is true and settled and the correspondents have it right. The problem is anterior. The United States vested a mercy power personally in the politician who heads the government, made it unreviewable, and attached no criteria, and it is the only comparable democracy that did all three. Every difficulty in this file follows from that design rather than from anything Joe Biden did in January.
Which means the reporting reform the panel is proposing is worth doing and will not be sufficient, and honest advocacy should say so. A disclosure statute produces a document. It does not produce an author who is separate from the beneficiary’s household, criteria against which the decision can be measured, or a forum in which the reasoning can be tested. Those three things are what other systems use, and none of them is available in the United States without a constitutional amendment that will not happen.
I would put the finding this way, because I think clarity here is worth more than encouragement. The Americans are debating how to add a lock to a door that was built without a frame. The lock is worth adding. It should not be described as a solution to the problem, and the country should understand that its arrangement is unusual rather than natural — an eighteenth-century choice that every democracy founded since has declined to copy.
