An Amendment to Limit the Presidential Pardon Power

The Problem

Many people have found alarming the use of presidential pardons and commutation for entirely political purposes, a use which subverts the judicial system and often undermines goals of fairness and justice. Though Trump has been widely criticized for his highly partisan pardons, commutations, and threats to pardon himself, other presidents have received smaller measures of disapproval for similar reasons. The fact that many pardons are saved until the end of a president’s term to limit the political damage that might result is instructive in this regard.

 

A Proposed Amendment

Rep. Steve Cohen (D-TN) reintroduced an amendment for consideration in January, 2025, and it is worthwhile. See his congressional page for his comments and the amendment text. It covers who may be pardoned and places off limits a number of people connected to the president by blood, employment, or political affiliation.

An addition to this amendment should be considered. Suggested text follows.

1. Presidential pardons or commutations shall be approved or declined by a commission of five members appointed by the Congress from its membership. The term in office shall be three years, and members may be reappointed once. Vacancies shall be filled by the Congress by special appointment to finish the term.
2. The Congress shall have the power to enforce this article by appropriate legislation.

 

Comments

Cohen’s amendment deserves to pass and be ratified. Adding to it a mechanism of accountability outside the executive branch makes abuses less likely, even if one party dominates Congress, simply because additional leaders would be accountable for unpopular or unethical pardons and commutations.

The foundation of a power to pardon or commute rests upon several tenets: first, that sometimes mercy is needed to counter too harsh a ruling; second, that errors can occur and should be speedily corrected; and third, that the offer of a pardon might more quickly restore peace in a time of great turmoil. These and other considerations are discussed in The Federalist 74 by Hamilton.

Experience, however, has shown that this power (like any other) can be abused, and that no safeguards exist in law to constrain it. Cohen’s amendment, and the suggested additional text above, would rein in this unbridled and sometimes wildly applied power.