The Esteemed Prof. Tribe’s Brief — On Why Trump’s Pardon Of The Criminal Joe Arpaio Should Fall…

We simply must offer (and commend) this, to the careful attention of anyone. . . who is a fan of life-long learning. Learning. . . what our founders intended, as they set out our framing documents, about the pardon power.

Here’s a hint: they didn’t countenance pardons for people who openly hindered and intentionally violated court orders which were designed to protect basic fundamental civil-, and human- individual rights.

Here’s a bit of it, but do go read it all. It is likely that the Ninth Circuit will (as early as this Summer) hold that Trump overstepped his constitutional abilities, in pardoning the odious “Sheriff Joe“.

. . . .Courts recognize that the pardon power is not unbounded; it is part of the constitutional scheme and must operate within constitutional limits. . . . The Arpaio pardon transgressed three
such limits. . . .

[T]he courts [are vested by the Constitution] with independent authority to safeguard the rights of individuals. Critical to that independence is the judiciary’s power to enforce its own orders through contempt proceedings without relying on the whims of the executive branch. The Arpaio pardon undermines that independence and thus the judicial power to remedy violations of individual rights. . . . [T]he President’s duty [is] to take care that the laws be faithfully executed — a responsibility that bars him from encouraging lawlessness by pardoning a figure renowned for his assaults on constitutional rights. . . .

No President may issue a pardon that interferes with the federal courts’ power to vindicate individuals’ constitutional rights through duly issued injunctions and contempt orders. And expanding the pardon power to enable total exoneration through vacatur is corrosive of the rule of law and outside the bounds of any recognized Presidential power. . . .

Enforcing these limitations, the Framers understood, would become the special province and structural role of the courts. “Limitations of this kind,” Hamilton wrote, “can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing. . . .” THE FEDERALIST NO. 78, at 465. . . .

Now you know. And my boy, Hamilton — is prominently featured. Smile. Onward.


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