Commentary: On Friday night, while the nation’s attention was focused on the impending arrival of Hurricane Harvey, President Trump unleashed a storm of his own by announcing that he had pardoned Joe Arpaio, the infamous former sheriff of Maricopa County. The announcement, though hardly unexpected, was met with outrage and alarm.
Rightfully so. Pardons are common, and commonly controversial. But this pardon is uniquely troubling, for two reasons. First, pardoning Arpaio sends the message that racism is acceptable. Arpaio is a thug, who gleefully thwarted the constitution and terrorized thousands of innocent people because of the color of their skin. By pardoning him, Trump has once again cast his lot with lawless bigots while marginalizing the victims of racism.
Second, pardoning Arpaio is an affront to the independence of the judiciary. Arpaio was convicted of contempt of court. Pardoning him sends a message to the President’s supporters that they need not obey court orders. That is a scary message indeed—particularly given the likelihood that members of the President’s inner circle will soon be subpoenaed as a part of the investigation into Russian interference in the 2016 election.
The good news is that this pardon may be subject to legal challenge. Although some legal scholars have characterized the pardon power as “absolute,” that view does not withstand scrutiny. True, the language of the pardon clause—authorizing the President “to grant reprieves and pardons for offenses against the United States”—appears unqualified. But no provision of the constitution can be read in isolation, and it is common for one clause to impliedly limit another. For example, although Article I grants Congress the seemingly limitless authority “to lay and collect taxes,” that authority is impliedly limited by the free exercise clause, which prohibits taxation of religious institutions.
The pardon clause is limited in a similar way. Its seemingly boundless grant of authority to pardon “offenses against the United States” is limited by Article III, which provides that “[t]he judicial power” is vested in the federal courts. The ability to initiate contempt proceedings is essential to the judicial power; without it, there is no “power” in the judiciary at all. The pardon clause cannot be read to allow the President to divest the judiciary of its constitutional authority. (Supreme Court precedent supports this view. Although the Court has upheld the President’s authority to pardon isolated cases of contempt, it has indicated that abuse of this authority would constitute an impeachable offense).
The pardon clause is also limited by the equal protection clause, which prohibits the government from taking any action that would deny any person “the equal protection of the law,” even if the action would otherwise be authorized. Thus, although Congress generally has authority to impose taxes, it cannot impose a tax that applies only to a particular racial or ethnic group. Similarly, although the President is generally entitled to grant pardons, he may not issue pardons designed to punish a particular racial or ethnic group. If, for example, the President were to issue a pardon covering “any crime committed against a Muslim,” it is certain that the Supreme Court would find it unconstitutional.
The victims of Arpaio’s unconstitutional discrimination can, and should, challenge his pardon in federal court. It falls upon the rest of us to challenge Trump’s bigotry and lawlessness in the court of public opinion.
David Baake is a candidate for the Democratic nomination in New Mexico's 2nd Congressional District.