I’ve been mulling President Biden’s mass pardons, whether the “death penalty” commutations in December or the drug offense pardons now. I think they’re unconstitutional. If I’m right, they have no legal meaning and are theoretically unenforceable. And while that probably won’t matter with the almost 2,500 drug offenders, it should matter with the people on death row.

When Biden issued his death penalty commutations, he was clear that he did so because he disagrees with the law:

He believes that America must stop the use of the death penalty at the federal level, except in cases of terrorism and hate-motivated mass murder – which is why today’s actions apply to all but those cases.

Biden had the same disagreement with the latest round of pardons:

The Democrat said he is seeking to undo “disproportionately long sentences compared to the sentences they would receive today under current law, policy, and practice.”

“Today’s clemency action provides relief for individuals who received lengthy sentences based on discredited distinctions between crack and powder cocaine, as well as outdated sentencing enhancements for drug crimes,” Biden said in a statement.

The above ignores that Congress could have addressed these concerns when it passed new drug legislation...but did not do so.

Given Biden’s motives—not that the law was wrongly applied (as J6 supporters argue) but that he just doesn’t like the law—it’s worth asking what the constitutional consequences are.

The Constitution has three clearly delineated branches of government: Executive, Legislative, and Judiciary. Technically, the Executive cannot legislate or pass judgment, the Legislature cannot take on administrative duties or decide cases, and the Judiciary cannot manage the government or legislate.

In the spirit of checks and balances, though, no one branch of the government has absolute power. However, while the Judiciary and Executive routinely exceed the written checks and balances to intrude on Legislative prerogatives—with the judiciary enacting and rewriting laws from the bench and the presidency doing the same through agencies that make rules with the force of law—Congress has lazily acceded to these power grabs, effectively giving up powers it has no authority to give away.

Congress’s unconstitutional passivity is ironic, given that the Founders intended for the Legislature to be the most powerful branch of government. That’s because it is the branch most closely connected to the will and voice of the people (via the House’s two-year, tightly local elections). Thus, under the Constitution, the legislature has significant control over both the White House and the judiciary.

But what about the president’s pardon power? Isn’t that unlimited? No.

At the Constitutional Convention, there was serious debate about the pardon power, which had long been a prerogative of the king under British common law. Beginning in the 7th century, the pardon has been viewed as a form of last resort when justice has gone awry:

The king of England and colonial American governors could grant pardons and reprieves. According to Sir William Blackstone’s Commentaries on the Law (1765-1769), pardons were intended to assure justice in cases where the courts (judges and/or juries) rendered decisions that resulted in the miscarriage of justice.

For hundreds of years, kings interceded when they felt that an individual was treated unfairly or, in the case of rebellions, when they believed that mercy was the only way to stitch the nation back together.

Unsurprisingly, given that the Americans had just completed a rebellion, that last point was the primary reason Alexander Hamilton was so committed to bringing the pardon power to the presidency.

In sum, historical British usage (which is folded into American law) and the Constitutional Convention itself establish two circumstances for presidential pardons: Mercy when the law has been cruelly applied to an individual and healing when the nation is wounded. Those are appropriate constitutional uses. Even when Biden pardoned Hunter, he stayed within that first line, saying he felt the operation of law had been unfair to his son.

But now it’s time to go back to the White House statements about Biden’s mass pardons and commutations.  In both cases, Biden is not saying that the law was too harshly applied to individuals or that the nation’s wounds need binding. Instead, he has proudly announced that he doesn’t like the applicable laws and is unilaterally rewriting them.

That is a purely legislative act that is entirely outside the president’s constitutional purview, including the broad pardon power. Biden can say he’s issued the commutations and pardons, but he actually hasn’t. Trump would be well within his authority to reinstate the death penalty sentences, although I suspect the drug pardons will get a pass. A lot of evil people are going to plague our nation again.

(A slightly different version of this essay appeared in an American Thinker digest, which is an email that members receive weekly at 10 p.m. on Friday. The digest contains original essays from American Thinker’s editors. Also, if you’re a subscriber and have not received a digest, check your spam or trash folders.)

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