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Comment by simonh | Hacker News Reader

Sorry to break it to you, but as with many things in the US constitution, the reason the President can pardon people is because it's a modified copy of the British constitutional system of the time. The House is Parliament, the Senate is the House of Lords, and the president can pardon people because King George III could and the office of the presidency is a limited term elected kingship.

Executive orders are Royal decrees. The president signing laws is Royal Assent. Presidential pardons are Royal pardons. The power to adjourn Congress is proroguation. It goes on and on. Of course there are differences, but a lot of these things are still direct copies that never got reformed.

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While pardon power originated from British law, the reason we kept it was what the OP referred to (see the federalist papers [1]).

When forming the government the founders didn't just blindly copy British government. There was a lot of debate over what to keep and what to omit (For example, we don't have a king. Presidents were seen as servants not as rulers).

Pardon power is mostly a direct copy of British pardon power. However, there was a reason for that beyond not getting around to reform.

It should also be noted that presidential pardon power, while very powerful, isn't unlimited. The president can only pardon federal crimes, they cannot pardon state crimes. That's an important break from British law where royalty had(?) unlimited power to pardon any crime. Particularly when pardon power was first envisioned, the founders looked towards a very small federal government. In that case, the number of federal crimes were far fewer than what we have today. That means, the presidents pardon power was pretty much only for crimes such as treason.

In other words, absolutely the founders were influenced by British government. They weren't, however, just blindly copying things. Everything went through debate.

[1] https://avalon.law.yale.edu/18th_century/fed74.asp

In addition, the US Constitution introduces another dimension to the idea of separation of powers - that the various branches of government should be able to counteract one another in certain circumstances.

The British approach is more appropriately labeled not as a separation of powers, but a fusion of powers [0] - probably the strongest example of such a government currently around today.

[0] https://en.wikipedia.org/wiki/Fusion_of_powers#United_Kingdo...

> The British approach is more appropriately labeled not as a separation of powers, but a fusion of powers [0] - probably the strongest example of such a government currently around today.

The Westminster system subordinates the executive branch to the legislative, but keeps the judicial branch independent.

(In the past, the judicial branch in the UK was not completely separated from the legislative and executive, due to the judicial roles of the House of Lords and the Lord Chancellor, but that all changed in 2005. And other Westminster system countries such as Canada or Australia didn't have that issue.)

The pardon power should obviously at this point be severely limited, it has a purpose, but clearly its major use is corruption or the threat of corruption in order to secure deals. So many modern presidents have used it to do crimes and then pardon their helpers.

However much you may dislike the particular individuals that trump has pardoned, he has used the pardon in a much more restrained way than Obama, who gave an order of magnitude more. So far, the pardon power is still a net good.

Okay, but why should the President be able to pardon people close to him including himself? Shouldn't the power be circumscribed to things that aren't obvious corruption? GWB pardoned Scooter Libby. George HWB pardoned Iran-Contra conspirators. Ford pardoned Nixon.

Maybe, what would such a law look like?

You could start by forbidding pardons to members of presidential administrations for offenses incurred during their term. You could also make "crimes against humanity" ineligible as well which would forbid the pardons of the Blackwater contractors that massacred Iraqi civilians.

Trump has pardoned far fewer people, but for the same reason the ratio of compassionate to corrupt pardons under Trump is much worse. Dozens of Trump's pardons had some direct benefit to him or his cronies. And among modern presidents he has pardoned strikingly few people.

I am not aware of any corrupt pardons under Obama similar to that of Marc Rich under Clinton, much less more egregiously corrupt pardons like that of Ford by Nixon or Manafort by Trump.

This is not so obvious to me. I don't think the evidence supports your claim that its "major use is corruption." The vast majority of pardons seem to be entirely unrelated to corruption.

That's a perfectly reasonable take especially on the federal/state separation which was novel, but is it really not possible there was some back-rationalisation going on?

The British system was very familiar, and while it had potential flaws visible to them at the time they were known familiar flaws. I find it doubtful that someone coming up with an entirely novel and unfamiliar system would have got anywhere at all, no matter how rational and well argued it was. People like familiar and that can affect their judgement. Just worth considering.

> That's a perfectly reasonable take especially on the federal/state separation which was novel, but is it really not possible there was some back-rationalisation going on?

Isn't this true of your own original post?

What is it that you think I'm back-rationalising?

Sorry, I'm pointing out that you and the other commenter are both just speculating: "but is it really not possible that...?"

I don't really understand what argument you're trying to make.

No real point. I'm not even saying it's a bad system. I just find it amusing that the US system is held up as a shining example of modern enlightened constitutional innovation, where in fact the president is an elected, limited term British King circa 1770.

I'm not sure what your point is.

I'm not disputing the fact that they took ideas directly from the British government. I disputing the fact that it was done without consideration, reform, or reason. There's ample evidence that they heavily debated each part of the British government that they adopted.

The fact is, the founders remedy for a corrupt president was impeachment. They made that perfectly clear. Corruption included things like misusing the pardon power (High crimes/Bribery).

What they didn't anticipate was the fact that we'd end up with a 2 party system equally spitting the country where neither side would remove their president from office. The put a LOT of faith in "honor" and the fact that the general electorate would punish dishonorable leaders. They did not expect things like wedge issues.

> they cannot pardon state crimes

State governors have that power.

Correct, but that wasn't given to them by the US constitution. Rather, that power rests with each individual state constitution. Further, depending on the state, it can be anywhere from unlimited to completely bound. [1]

The role of "governor" isn't defined by any federal laws or rules. It's theoretically possible for a state to decide that it doesn't need a governor.

[1] https://ccresourcecenter.org/state-restoration-profiles/50-s...

> It's theoretically possible for a state to decide that it doesn't need a governor.

The guarantee clause (Article IV section 4) says "The United States shall guarantee to every State in this Union a Republican Form of Government..." What constitutes a "Republican Form of Government"? Is having a governor essential to it?

I think the answer is nobody can really say because the Supreme Court has never had to consider that exact question, and nobody knows how they'd rule if they did. They have previously ruled that the guarantee clause is "non-justiciable" (in Luther v. Borden, 1849), which implies they'd let a state adopt whatever form of government it likes, but they could change their mind about that if they wanted to.

What if a state wanted to adopt the Westminister system, like a Canadian province or Australian state? What would SCOTUS have to say about that?

> it's one of the checks and balances

> it's a modified copy of the British constitutional system. [...] Executive orders are Royal decrees

Those things are not mutually exclusive. In other words, sure, you can look at the latest batch of pardons and think they are overzealous - but it doesn't mean the action does not have place in the US checks & balances system.

Of course, that's a fair point. I suppose the elected nature of the Presidency certainly give the office a democratic legitimacy Georgie and his successors never enjoyed, and that insulates the office from reform.

Being able to pardon for things from your administration during your own term seems to erode checks and balances. Some kind of limitation on that or maybe at least some kind of congressional approval could keep out the truely egregious stuff. Aside from that the self-pardon question should be ruled out entirely or all checks and balances are basically gone.

The presidential pardon has allowed our country to move on from problems that would lead to decades of prosecutions and counter-prosecutions as power changes party. Nixon and the civil war are both examples.

Congress already has tools for that (and the president has some sway through veto power): https://en.wikipedia.org/wiki/Amnesty_law#United_States

There's no good reason to give all that power of unconditional pardons to one person.

Actually the "moving on" that Andrew Johnson enabled after the Civil War effectively terminated Reconstruction, launched nearly 100 years of Jim Crow, and gave permission for the South to regress (see "KKK").

In other words, Black people would beg to differ.

I like to think that US democracy is self healing in the long run. Assume for a moment that pardons are, on balance, a good thing. This time around it was a little "too good".

Net result: we rein in that power (hopefully). Dont get rid of it - keep it but instill rules and regulations like enforcing Justice Department oversight and review

This is sort of correct, except for two parts: The first constitution was the Articles of Confederation, which was extremely different from British constitutional design of the day; and the doctrine of parliamentary sovereignty is distinctly British and did not migrate into the US Constitution.

The idea of a First Amendment such as we have in America would be entirely foreign in Britain, for instance, since no sitting parliament could ever restrict a majority of a future parliament from passing any law they saw fit. Even Royal Assent at the time was largely ceremonial and usually carried out by Royal Commissioners rather than the monarch. In fact, the last time assent was withheld was 1708 under Queen Anne.

> and the doctrine of parliamentary sovereignty is distinctly British and did not migrate into the US Constitution.

Distinctly English rather than distinctly British. As Lord Cooper said in MacCormick v. Lord Advocate, "the principle of the unlimited sovereignty of Parliament is a distinctively English principle which has no counterpart in Scottish Constitutional Law".

> no sitting parliament could ever restrict a majority of a future parliament from passing any law they saw fit

If the British Parliament tried to amend the Acts of Union 1707 to remove the protections granted to Scotland – for example, if it sought to abolish Scots law and replace it with English law – it is quite possible that the Scottish courts would rule such an Act of Parliament unconstitutional under Scots law, and also quite possible that the Supreme Court of the UK would uphold their ruling.

Executive orders aren’t in the Constitution and the President doesn’t have the power to adjourn Congress.

Your point about executive orders is not quite correct.

https://lawshelf.com/shortvideoscontentview/the-power-of-the...

Wikipedia notes:

> The United States Constitution does not have a provision that explicitly permits the use of executive orders. Article II, Section 1, Clause 1 of the Constitution simply states: "The executive Power shall be vested in a President of the United States of America." Sections 2 and 3 describe the various powers and duties of the president, including "he shall take Care that the Laws be faithfully executed"

They're constitutional--in the sense that the President has the legal authority to issue orders to the rest of the executive branch--but they are certainly not an explicit provision of the Constitution explicitly modeled after the royal decrees of the British monarchy.

And the power of Congress to override the presidential veto is... what?

Any time you create a second system, you can see similarities to the first system. That doesn't make it a "modified copy"; it makes it a "rewrite that has some similarities".

That's barely even a difference, the ultimate sovereignty of Parliament was established in the Civil War. We didn't need that mechanism because we had another end-run on the principle that the Sovereign cannot withhold consent against the advise of the Cabinet an d no sovereign ever did so since 1708.

As I said there are differences but the overall system is basically the same shape. Specifically the Presidential Veto wasn't conjured up out of thin air as a cunning plan to implement a system of checks and balances, it was just carried along with the general cut-and-paste.

The details do differ and have diverged over the centuries, for sure, but the basic executive role of the President in the US system today is that of George III in the 1770s. I also think there's a case to be made that the political relationships between your branches of government would be much more familiar to a 18th Century British politician than their contemporary counterparts.

Origins for the creation of a practice need not be the reasons it continues to exist today, unless we're mindless lemmings just copying what every previous administration did. (That may well be the case though)

The track record of a practice should be taken in account when considering removing them. As mentioned, this one in particular is part of a very well designed system of checks and balances. As with any power, it can be misused; the president, however, has many other powers that can be misused in much more spectacular ways.

Here Herererererererrrrrreeeeererrerere!

I personally think we should have kept the part where Parliament ceremonially slams the door in front of the Usher of the Black Rod every time. Cracks me up every time.

Constitution also grants the power to suspend the constitution

I thought I’d read the constitution, but I don’t remember that. Where is it?

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