The President’s Pardon Power & The Lack of Administration – N.Y.U. Journal of Legislation & Public Policy

By Lauren May

March 12, 2024

Introduction

While there has been much recent debate over the scope of the President of the United States’ power, the power “to grant Reprieves and Pardons for Offences against the United States,”¹ is explicitly granted to the President in Article II of the U.S. Constitution, and yet this pardon power is one of the least discussed and used tools in the President’s arsenal. Grants of clemency have drastically declined in the last fifty years, despite the general growth of presidential power and the administrative state.² So far in President Biden’s term, of the over 9,000 petitions for clemency received, only 1.5% have been granted. Even with the new pardon attorney’s recent reforms toward greater transparency and efficiency, there are still concerns that her efforts would be thwarted by the greater administrative apparatus. Scholars Rachel Barkow and Margaret Colgate Love each argue for a reversal in that trend: a greater presidential role in the current clemency administrative process is necessary to ensure the efficacy of this constitutional power and to provide a much-needed check on our current criminal justice system.³ This piece argues there is a lack of presidential oversight over an agency’s administration of the President’s constitutionally-granted pardon power.

The history of the changing place of the President in the administrative state is reflected in the history of the pardon power and provides additional support for Barkow’s and Love’s arguments about reforming the use of clemency. While the administrative state has existed in some form since the beginning of American history, presidents in recent years have increasingly used the administrative state to accomplish their policy goals. While delegation of authority allows for practical benefits and is often vital given the size and scope of the demands on the Presidency the President is less able to monitor and control the exercise of that executive authority once it has been delegated. With respect to the President’s power to grant clemency, delegation to agency officials within the Department of Justice has caused an institutional conflict of interest and a significant decrease in the quantity and quality of pardons granted by recent Presidents.⁴ The decreased use of clemency does not only provide less relief for individuals subject to injustice in the criminal legal system — it also serves as an abdication of the President’s power to check the legislative and judicial branches in their passage and application of criminal law, as well as the President’s duty to monitor the discretion of federal prosecutors. Greater presidential oversight of the administration of clemency would ensure a more efficient use of this prerogative power and restore its use to the original intentions of the Framers.

I. History of the Pardon Power

A. The Constitutional Convention and Text

When the Founders gathered in Philadelphia to discuss the making of the Constitution, there was not much debate over giving the President the power to grant pardons.⁵ While this power was not included in either the New Jersey or the Virginia plans, Alexander Hamilton, true to his pro-presidential power bend, became an advocate for broad presidential discretion to grant reprieves and pardons, subject to very few limitations.⁶ His rationale seemed to align with the republican and liberal intentions of the Founders, who desired both a strong central government to act in the public interest and a government subject to limitations in order to protect individual rights.⁷ Hamilton had seen in British criminal law — a code riddled with death sentences for most criminal acts — how the executive pardon offered an important check on laws applied too severely. Further, clemency could serve as an act of compassion by tempering the law’s harsh consequences and restoring individual rights.⁸ Hamilton also saw clemency as a political tool for presidents, a way to intercede in the functioning of criminal law to avoid political damage and for the public good.⁹

The Founders often pulled ideas from existing state structures, particularly in shaping the presidency. In fact, the Founders modeled the structure of the (add: executive branch/presidency) after that of the New York governor.¹⁰ However, the original Pardon Clause contained only an exception for treason, differing from many state governors’ clemency power at the time which was subject to greater restrictions or legislative approval.¹¹ While the Committee of Detail eventually changed the exception in the clause from treason to impeachment,¹² the Framers chose to align the clemency power more with the Crown’s prerogative powers than the state governors’ shared powers.¹³

B. The Court’s Role in Defining the Pardon Power

Over the years, the Supreme Court has recognized five types of clemency available to the President through the Pardon Clause. Reprieves, the delay of court-imposed punishment, and pardons, the removal of a conviction’s legal consequences, are the two forms explicitly cited in the clause. The remaining powers include the remission of fines, sentence commutations, and grants of amnesty, which extend pardons to classes of individuals.¹⁴ It is the use of amnesty that best furthers Hamilton’s second, more republican goal for clemency, as this is the form most used for political offenses.¹⁵

Because of the power’s prerogative status, the Supreme Court has also been reticent to impose limitations on the President’s clemency power. Clemency can be granted for any federal criminal offense, other than impeachment,¹⁶ and at any time after the crime has occurred, even before trial.¹⁷ Pardons cannot affect third-party rights or return money paid to the United States Treasury. Pardons are mandatory; individuals are not allowed to decline the grant of clemency unless the grant is aimed to force the individual to testify against the invocation of their Fifth Amendment right. The President may impose conditions on grants of clemency—so long as the conditions are not otherwise unconstitutional—and, other than complying with the Due Process Clause, there are no objective or defined criteria on which the President must base decisions.¹⁸ Congress is not allowed to limit the President’s power at all; the clemency power is “checked only by the political process and the power of voters to elect a new President should they disagree with the clemency decisions of the current one, or a Congress angry enough to seek impeachment.”¹⁹

C. The Use of Clemency: The Early Republic to the Civil War

Since the beginning of the Republic, presidents have frequently taken advantage of their clemency power. Originally, presidents granted pardons personally, often hearing pleas for relief in-person at the White House.²⁰ President Thomas Jefferson was the first to seek input on clemency grants from district attorneys and judges, and subsequent presidents often looked to their Attorneys General and Secretaries of State for help in reviewing applications.²¹ While we do not have statistics on clemency from that point in history, we know pardoning was a routine and commonplace part of early governance.²²

D. The Progressive Era Use of the Pardon Power

After the Civil War, federal criminal law grew dramatically in size and scope,²³ making it impractical for the President to remain so personally involved in the hearing of pleas for relief. In 1865, Congress appropriated funds for a pardon clerk, and in 1891, the Office of the Pardon Attorney was created to assist in the administration of clemency and to remove much of the personal and political influence of pleas from the President,²⁴ corresponding with the creation of the Interstate Commerce Commission in 1887. President Grover Cleveland, one of two Democratic presidents during this post-bellum period, transferred this new office to the Department of Justice in 1893 via executive order,²⁵ with the intention of making clemency “an integral part of the criminal justice system.”²⁶ In 1898, President William McKinley signed the first Department “Rules Relating to Applications for Pardon” regulating the agency’s administration of the pardon power.²⁷

Stephen Skowronek and William Novak combat the idea that the administrative state began with President Franklin D. Roosevelt’s New Deal in the 1930s, although each posits slightly different purposes and timelines of the administrative state. Skowronek, specifically, argues that the post-Civil War United States was a country of elite courts and political parties with no single public interest.²⁸ As a result, there was pluralistic battling as individuals fought to vindicate their rights. The administrative state served as a solution to this contestation. By claiming to have expertise, administrators were able to gather power and make the decisions that politicians could not or did not want to make.²⁹ This helps explain the delegation of pardon power made to the Department of Justice in this time period. Prosecutors, as the primary figures enforcing the law, have a unique understanding of the facts underlying each application for clemency and an exclusive perspective on how a grant of clemency in one case will affect others.³⁰ With the increasing scope of federal criminal law and the growth in the number of clemency petitions, prosecutors became better suited than the President to make these decisions.

Novak argues that the new demands, new scale, and new theory present in postbellum America allowed the administrative state to grow by creating a new need for regulation to protect individuals from the harms of big industry.³¹ He explains that political parties were corrupted by business interests and factionalism, and agency administration offered a way for the government to make decisions in the public interest while staying isolated from that undemocratic influence.³² Here, if the pardon system is meant to protect individuals from the “big industry” of the criminal justice system by serving as a check on its decisions and from the President’s acquiescence to “political pressure and importuning,”³³ the promulgation of regulations by McKinley makes sense, but the transfer of this power to the Department of Justice, not as much.

While greater administration is necessary, given the President’s lessened capacity and because neither Congress nor the Courts have authority in this area, leaving the enforcers of criminal law to determine which individuals deserve mercy is exactly the conflict of interest with which Love is concerned (as opposed to the undue influence Novak worries about). The undemocratic influence does not get resolved when the improper influence exists within the government itself. While the members of the Justice Department originally saw themselves as neutral arbiters of clemency and their recommendations were shown a great deal of deference in the regulations signed by McKinley,³⁴ the role of federal prosecutors does not include a duty to be merciful, a main underlying rationale for the pardon power, and they have never viewed themselves as regulatory agents subject to the President’s will.³⁵ Rather, prosecutors see themselves as independent administrators of justice, immune from the politics of other government officials, which makes them subject to an inherent tension: “All clemency decisions are reviews of prosecutorial decisions already made” and serve as “potential challenge[s] to the law enforcement policies underlying the conviction.”³⁶ Prosecutors are unlikely to overturn their own decisions and policies, especially if they are viewed as “just” and immune from influence.³⁷ This transfer of the pardon power to the Department of Justice set the scene for the decline in the use of clemency that would come in the following decades.

Less than two decades later, in 1910, parole was introduced in the federal system. The possibility for prisoners to be released early on parole de facto replaced presidential grants of commutations as the main method of sentence reduction.³⁸ As parole was more frequently given, the use of clemency power to grant commutations decreased, and the power was more frequently used to grant pardons, thereby restoring a formerly incarcerated person’s civil rights after release from prison.³⁹

E. Pardoning in the Reagan Era

The President’s use of clemency power took a steep decline during the 1980s and has remained low ever since. The events of the 1970s, including Watergate in 1972 and the Oil Shock of 1973, resulted in a crisis of confidence and major disillusionment in the government and in the President particularly. President Ford’s controversial pardoning of Nixon in 1975 likely did not help restore public confidence in the ability of the President to use his clemency power for the public good.⁴⁰

This sentiment gave rise to Jimmy Carter’s famous “malaise” speech,⁴¹ Ronald Reagan’s presidential campaign, and a new opportunity for the country to rethink the role of the government. The perceived weakness of the Executive allowed President Reagan to demonstrate his strength through “Tough on Crime” policies, while politicizing the debate on drugs and prisons.⁴² The use of presidential clemency had stayed fairly strong through the 1960s and 1970s, with Presidents Johnson, Nixon, and Ford granting 31%, 36%, and 27% of requests respectively,⁴³ Consistent with the popular “Tough on Crime” rhetoric spread in the Reagan Era, the 1984 passage of the Sentencing Reform Act abolished the used of parole in the federal criminal system. Unlike the adjustment that occurred with the introduction of parole in 1910, the quantity of pardon grants did not compensate for the lack of sentence reductions left behind.⁴⁴ Additionally, President Reagan amended the substantive pardon regulations by extending the waiting period to apply for clemency by two additional years.⁴⁵ These amended regulations remain in effect today.

Interestingly, much of President Reagan’s rhetoric surrounded the need for government deregulation broadly, but that push did not directly translate into the administration of the pardon power. In 1978, President Carter’s Attorney General delegated his pardon supervisory power to the Deputy Attorney General, a delegation that was formalized by executive order during Reagan’s presidency.⁴⁶ Not only did both presidents more commonly refuse to use their executive authority to grant pardons, they further entrenched pardon power in the discretion of lower department officials, standing in stark contrast to the goal of Reagan’s Executive Order 12291, which served as a significant assertion of the presidency into agency action.⁴⁷

It was also in this push to deregulate that the traditional expertise model of administration began to break down; scholars realized that expertise is political, rather than neutral and independent, which led to a desire to add political accountability to the administrative state.⁴⁸ This realization did not carry over to the Justice Department in the same way. The administration of the pardon power was delegated to officials within the Justice Department because of their expertise on criminal matters, and yet criminal prosecution can also be political. Decisions on whether to bring a charge at all and how severe a sentence to seek are often dictated by the policies of the ruling political party. Rather than seek means of political accountability, the Reagan Administration exploited this reality, knowing that the politics of prosecutorial expertise would work to their advantage. While the Office of the Pardon Attorney had existed within the Department of Justice for almost a century, delegating this power to the Deputy Attorney General, who directly supervises federal prosecutors, fostered a greater conflict of interest within the administration of clemency and dissuaded these acts of mercy from Reagan’s Administration onward.⁴⁹

While formally, it appears as if the Department of Justice was the only agency to avoid deregulation, deregulation did affect the pardon power in more informal ways. The physical office of the pardon attorney was relocated to a remote Maryland suburb, and the pardon attorney was denied executive status and uninvited to senior staff meetings.⁵⁰ These actions demonstrate the lack of trust and respect the President was putting into the administration of his pardon power, and while President Reagan sought greater power for the presidency in other areas, he refused to exercise his constitutionally granted power in this way.

II. Current Use of the Pardon Power & Need for Reform

A. The Need for Presidential Oversight of Agency Action

Since the 1980s’ “Tough on Crime” rhetoric and the Reagan Administration’s de-prioritization of this presidential power, the number of clemencies granted have remained at all-time lows. Of all requests for clemency submitted during their respective presidencies, President George H.W. Bush only granted 5%, President Bill Clinton granted 6%, and President George W. Bush granted a shockingly low 2%.⁵¹ Even President Barack Obama, who took steps to reform the use of the pardon power,⁵² only granted 5.3% of clemency petitions. President Donald Trump, perhaps unsurprisingly given his take on the “Tough on Crime” rhetoric, granted slightly less than 2% of all clemency petitions received.

Yet despite these low numbers, it does not appear as if the Presidents themselves are all to blame. At the end of their presidencies, both Clinton and George W. Bush became frustrated by the inundation of pardon requests they received and the lack of quality pardon recommendations from the Department of Justice. Bush even explicitly urged Obama to address the pardon administrative process.⁵³ The lack of a functional administrative process led both Clinton and Bush to bypass the system altogether, and instead grant clemency to those to whom they had the most direct access on their final days of office, resulting in incredibly controversial pardons.⁵⁴ Love argues that this administrative failure is the result of a conflict of interest: the Department of Justice, the agency charged with enforcing and prosecuting the criminal laws of the land, also has the role of reviewing these requests for mercy and providing recommendations to the President.⁵⁵ What we have, then, is a lack of presidential oversight over an agency’s administration of the President’s constitutionally-granted power.

The trend seen in the administration of the clemency power is, in many ways, opposite of the trend we have seen in many other substantive areas. Since the Reagan Administration, we have seen tremendous growth in the power of the President, often at the expense of administrative power.⁵⁶

The state of the presidential use of clemency power has led scholars like Barkow and Love to propose reforms and advocate for a greater role for the President. Professor Barkow and her frequent co-author Mark Osler believe an independent, bipartisan pardon advisory board should be formed outside the Department of Justice and at the sole discretion of the President, but with expert Justice Department representation.⁵⁷ Love, who was the Pardon Attorney under Presidents H.W. Bush and Clinton, also advocates for the removal of the Office of the Pardon Attorney from within the Justice Department and for the office’s placement within the Executive Office of the President to ensure more independence from the law enforcement mindset.⁵⁸ She argues this institutional adjustment would be relatively easy to accomplish, as it would not require congressional authorization, unlike changes within other executive agencies. A simple order from the President transferred the administration of the power to the attorney general 150 years ago, and a simple executive order could change it again.⁵⁹

Greater presidential oversight in this area does not require justification, as the pardon power is given explicitly to the President in Article II, although it can be justified on other bases, as well. As Professor Barkow argues in her article, the President has a responsibility to monitor the discretion of criminal prosecutors via the duty to “take Care that the Laws be faithfully executed” in Article II.⁶⁰ In their article “Faithful Execution and Article II,” Andrew Kent, Ethan Leib, and Jed Shugerman use an originalist methodology to argue that the Take Care Clause imposes three duties on the President which mirror aspects of the fiduciary duty in modern private law: to not act ultra vires, to not misuse funds, and to execute the office diligently, honestly, and impartially.⁶¹ In their article, the authors explicitly cite the pardon power as both an area ripe for abuse and as one that requires exercise in good faith.⁶² Additionally, Kent, et al. contend that the Take Care Clause imposes a dual set of powers on the President, rather than just a fiduciary duty: the powers of diligence and supervision.⁶⁴ This supervisory power means that the President has the prerogative to ensure federal prosecutors are adhering to their obligation to do justice as well. Barkow argues that greater presidential monitoring and use of clemency can send a signal about the type of criminal justice policy desired by the President and ensure more consistent enforcement of that policy across the country.⁶⁵

Gillian Metzger argues this supervisory power is in fact a duty and that the courts should make it explicit. She contends that many of the problems we see in government today are the results of managerial and supervisory failure,⁶⁶ much like the current functioning of the administrative pardon process. Therefore, courts should recognize a constitutional duty to supervise in Article II that would apply a mandatory oversight role to the President over executive officers,⁶⁷ of which prosecutors are the prototypical example.⁶⁸ This duty, if recognized, could be helpful in empowering the President in this area. Both prosecutorial decisionmaking⁶⁹ and pardon administration⁷⁰ are subject to very limited judicial review, and because prosecutors do not see themselves as agency officials carrying out the Executives’ wills, checks on their power are needed. Greater presidential use of the pardon power would align with the accountability rationales Metzger outlines. If delegation is necessary in contemporary governance, as she argues, then the duty to supervise, as a form of bureaucratic accountability, is required for political accountability. Oversight is imperative “to ensure that policies and priorities specified by elected leaders are actually carried out on the ground,” increasing democratization within the administrative state.⁷¹ Particularly if new reform is modeled after Obama’s Clemency Initiative, in which the Justice Department outsourced review of clemency petitions to a board of private parties,⁷² Metzger’s argument for an explicit constitutional duty could become more feasible; she argues that privatization offers one of the most manageable areas to enforce this constitutional duty.⁷³

Even Harold Bruff’s “Presidential Power and Administrative Rulemaking” provides support for a more empowered president in this context, despite his emphasis on presidential involvement in agency rulemaking. Writing in 1979, Bruff saw the same problems with regulation that President Reagan did: he thought the administrative state had grown to be too big and too complicated and lacked the coordination necessary to effectively govern while maintaining the checks and balances designed by the Constitution.⁷⁴ His solution was an empowered president through a functional separation of powers justification, rather than through the passage of a statute as Lloyd Cutler and David Johnson contended.⁷⁵ The President’s unique position as executive supervisor with a national constituency puts him in a better position to direct the workings of the administrative state than Congress or the courts.⁷⁶ Because the pardon power is a presidential prerogative power explicitly granted in Article II, congressional action would not be required to increase presidential power in this arena. Additionally, the pardon power was always meant to serve as a check on the powers of the other Branches, aligning with Bruff’s proposed justification. From the beginning, the Founders saw the presidential power to grant clemency as a check on both the legislative and judicial branches. It was a way to limit Congress’s passage of overbroad criminal laws and a way to cabin judicial imposition of disproportionately lengthy criminal sentences.⁷⁷

B. The Relationship to Unitary Executive Theory

The growth in support for the Unitary Executive Theory reinforces Barkow and Love’s suggestions for pardon reform. This theory, rooted in the Vesting Clause which vests “the executive power…in a President,”⁷⁸ is what underlies the presidential removal power debate. Because all executive power is vested in one President, they should have authority and removal power over all officials exercising executive power. This theory came into academic prominence through Justice Antonin Scalia’s dissent in Morrison v. Olson,⁷⁹ in which he questioned the constitutionality of the independent counsel law. For Justice Scalia, the analysis was straightforward: if all executive power is vested in the President, and prosecutors—including this independent counsel—exercise executive discretion, then any restrictions on the President’s authority over this independent counsel are unconstitutional.⁸⁰

This perspective concerning criminal prosecutors has translated into formal law; all federal prosecutors are removable at will by the President by law.⁸¹ However, in practice, there is a convention against removing U.S. Attorneys in the middle of a presidential term, and these officers are essentially only removed at the partisan change of an administration.⁸² This should be concerning to Unitarists, as in practice, prosecutors have more independence than formalized law might convey.

Clemency can serve as a check on the independence of U.S. Attorneys. The President “has the power to nullify or veto [subordinates’] exercises of discretionary executive power,”⁸³ especially when their executive authority comes directly from the Constitution, rather than statutory delegation.⁸⁴ The President’s current ability to limit the discretion of federal prosecutors is limited to front-end, vague enforcement guidance with little follow-up on the back end.⁸⁵ Barkow argues that clemency offers a less costly method of controlling prosecutorial discretion than removal, as the President can remedy one prosecutorial decision without needing to find and hire a replacement.⁸⁶ And with over 6,000 prosecutors in 94 federal districts across the country, the President’s increased use of the pardon power to check charging decisions is more feasible than monitoring the actions of individual officials.⁸⁷

Even for advocates of presidential power that do not classify themselves as Unitarists,⁸⁸ the argument holds. The pardon power is granted directly and unambiguously to the President in Article II, avoiding “the questions raised about whether the scope of presidential administration is limited to supervision or includes direct decisionmaking power as well.”⁸⁹ Recognizing the need for and authority of the President to exercise the clemency power falls in line with the text and structure of the Constitution without upending the structure and hierarchy of the contemporary administrative state, unlike the Unitary Executive Theory.⁹⁰ The power to pardon is an indefeasible, prerogative power⁹¹ that the President has a duty to exercise to control the executive authority.The Necessity of an Administrative Apparatus

C. The Necessity of an Administrative Apparatus

While an expansion of the use of presidential power in this area is necessary for a just and accountable criminal legal system, no scholar is advocating for the abolishment of the administrative apparatus. The size and complexity of the criminal legal system as we know it precludes that option as impractical. Of the federal criminal laws passed since the Civil War, over 40% of them were passed after 1970, and more than 25% after 1980.⁹² Moreover, we have seen how presidents can get into trouble politically when they fail to use the administrative system. President Truman’s pardons of friendly government officials on his way out of office,⁹³ President Ford’s extension of clemency to Richard Nixon,⁹⁴ and President Trump’s pardons of political friends and war criminals⁹⁶ have all come outside the recommendations brought by the Justice Department and have soured the public’s view of the legitimacy of the President’s clemency power and of the President’s ability to use it for good. This idea of institutional legitimacy goes back to Max Weber’s theory of administration, which he describes as simply the implementation of rational authority that gives bureaucracy legitimacy in the eyes of the public.⁹⁷

In a similar vein, scholar Maggie Blackhawk argues in her article, “Petitioning and the Making of the Administrative State,” that a key function of the administrative state is providing a vehicle for individuals and minorities to participate in democratic lawmaking.⁹⁸ While the Department of Justice process does not include place for public comment per se the clemency application process allows individuals to petition the government for relief on their behalf. When presidents circumvent this process, it is minorities who are more impacted, as the distribution of presidential pardons becomes skewed toward those with the greatest access and special connections to the President.⁹⁹

Conclusion

Clemency power offers the President a key mechanism for controlling the discretion of executive officials and checking the power of the legislative and judiciary branches to pass and apply criminal law. In support of the Pardon Clause, Alexander Hamilton said, “[t]he criminal code of every country partakes so much of necessary severity that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel.”¹⁰⁰ Professor Rachel Barkow and Margaret Colgate Love advocate for a retaking of this power from the Department of Justice by the President to rid the process of a problematic institutional conflict of interest, ensure greater quality and quantity of pardons granted, and provide the mercy to petitioners intended by the Framers.

The history of the relationship between the President and their administration supports their recommendations. The growth of the criminal legal system after the Civil War and the increasing need to protect grants of clemency from political influence spurred the delegation of clemency power to the Pardon Attorney in the first place. Yet, the need for the President to control the practical independence of federal prosecutors exercising executive authority as mandated by the Take Care Clause and to compensate for the statutory abolishment of federal parole reinforces the push for a larger role for the President in the administration of the pardon power. Despite the political risks that come with grants of pardons, history has shown how politically fatal it can be when the President abstains from tapping the expertise of executive branch officials. The administration of justice is best served when the President can take care that criminal laws are faithfully executed and when claiming the constitutional prerogative power to pardon.

Lauren May, J.D. Class of 2024, N.Y.U. School of Law.

Suggested Citation: Lauren May, The President’s Pardon Power & The Lack of Administration, N.Y.U. J. Legis. & Pub. Pol’y Quorum (2024).

1
U.S. Const. art. II, § 2, cl. 1.
2
Rachel Barkow, Clemency and the Presidential Administration of Criminal Law, 90 N.Y.U. L. Rev. 802, 815 (2015).
3
Id. at 807–09; Margaret Colgate Love, Justice Department Administration of the President’s Pardon Power, 47 Univ. Tol. L. Rev. 89, 91 (2016).
4
Love, supra note 3, at 91.
5
Barkow, supra note 2, at 810.
6
Id.
7
See David Brian Robertson, The Original Compromise 4 (2013) (“The framers’ core principles were effective government and a government based on the consent of the people . . . [and they looked for] the way to make this government safe for their vital state, local, factional, and personal interests.”).
8
Love, supra note 3, at 91.
9
Id.
10
Charles C. Thach, Jr., The Creation of the Presidency, 1775-1789 176 (1922).
11
Barkow, supra note 2, at 810.
12
Id.
13
Michael W. McConnell, The President Who Would Not Be King 171 (2020).
14
Barkow, supra note 2, at 811.
15
Id.
16
Id. at 811–12.
17
Id. at 810.
18
Id. at 812.
19
Id. at 811–13.
20
Id. at 814.
21
Love, supra note 3, at 94.
22
Barkow, supra note 2, at 813.
23
Katherine F. Brickey, Criminal Mischief: The Federalization of American Criminal Law, 46 Hastings L.J. 1135, 1139–41 (1995).
24
Barkow, supra note 2, at 814; Love, supra note 3, at 94.
25
Love, supra note 3, at 94 n.27.
26
Id. at 95.
27
Id. at 95 & n.33.
28
Stephen Skowronek, Building a New American State 122 (1982).
29
Id. at 254–55.
30
Love, supra note 3, at 105.
31
William J. Novak, New Democracy 94–95 (2022).
32
Id. at 221.
33
Love, supra note 3, at 96 n.39.
34
Id. at 95.
35
Id. at 103; Barkow, supra note 2, at 859.
36
Barkow, supra note 2, at 824.
37
Id. at 824–25.
38
Id. at 814.
39
Id.
40
Id. at 813 n.61.
41
Jimmy Carter, Crisis of Confidence, PBS (Jul. 15, 1979), https://www.pbs.org/wgbh/americanexperience/features/carter-crisis/ (“It is a crisis of confidence. It is a crisis that strikes at the very heart and soul of our national will. We can see this crisis in the growing doubt of the meaning of our own lives and in the loss of unity and purpose as a Nation. The erosion of confidence in the future is threatening to destroy the social and political fabric of the nation. . . . We’ve always had a faith that the days of our children would be better than our own. Our people are losing that faith, not only in government itself but in the ability as citizens to serve as the ultimate rulers and shapers of our democracy.”).
42
Barkow, supra note 2, at 817.
43
Id. at 816.[/mfn but the proportion dropped to 21% with President Carter and even lower to 12% during President Reagan’s presidency.⁴³Id. at 816-17.
44
Id. at 815–16; see also id. at 826 (noting that “[t]he rules stress that a commutation ‘is an extraordinary remedy that is rarely granted’” and that these provisions were not amended when federal parole was abolished).
45
Id. at 826.
46
Love, supra note 3, at 98.
47
Exec. Order No. 12291, 46 Fed. Reg. 13193 (1981).
48
Lloyd Cutler & David Johnson, Regulation and the Political Process, 84 Yale L. J. 1395, 1402–06 (1975).
49
Barkow, supra note 2, at 824.
50
Love, supra note 3, at 98.
51
Barkow, supra note 2, at 817.
52
Id. at 828 & n.156.
53
Id. at 828.
54
Love, supra note 3, at 100 & nn.62–63.
55
Id. at 89.
56
For example, the power of the President to remove executive branch officials at will has grown in prominence, with the Supreme Court ruling against for-cause removal protections, see Seila Law LLC v. Consumer Financial Protection Bureau, 140 S. Ct. 2183 (2020), and “unreviewable authority” for agency officials, see United States v. Arthrex, Inc., 141 S. Ct. 1970(2021).
57
Barkow, supra note 2, at 828 nn.157–58; see also Love, supra note 3, at 106 n.91.
58
Love, supra note 3, at 106.
59
Id.
60
Barkow, supra note 2, at 833.
61
Andrew Kent et al., Faithful Execution and Article II, 132 Harv. L. Rev. 2111, 2118 (2019).
62
Id. at 2188-89.⁶² This fiduciary-type duty means that the President should be required to ensure that clemency is granted justly; a feat that has seemed to be lacking under the current system.⁶³See Love, supra note 3, at 100 n.63 (“Bush later wrote . . . that he ‘came to see the massive injustice’ of a system that gave special access to people who had ‘connections to the president.’”).
63
64
Kent et al., supra note 59, at 2190.
65
Barkow, supra note 2, at 836–38.
66
Gillian Metzger, The Constitutional Duty to Supervise, 124 Yale L. J. 1836, 1839 (2015).
67
Id. at 1876–77.
68
See Morrison v. Olson, 487 U.S. 654, 691 (1988) (“There is no real dispute that the functions performed by the independent counsel are ‘executive’ in the sense that they are law enforcement functions that typically have been undertaken by officials within the Executive Branch.”).
69
Barkow, supra note 2, at 833.
70
Id. at 812–13.
71
Metzger, supra note 67, at 1892–93.
72
Love, supra note 3, at 90.
73
Metzger, supra note 67, at 1914–15.
74
Harold H. Bruff, Presidential Power and Administrative Rulemaking, 88 Yale L. J. 451, 451, 455 (1979).
75
Cutler & Johnson, supra note 44, at 1414.
76
Bruff, supra note 72, at 461-62.
77
Barkow, supra note 2, at 831.
78
U.S. Const. art. II, § 1, cl. 1 (emphasis added).
79
487 U.S. 654 (1988) (Scalia, J. dissenting).
80
Cass Sunstein & Lawrence Lessig, The President and the Administration, 91 Colum. L. Rev. 1, 14–15 (1994).
81
Barkow, supra note 2, at 843.
82
Id. at 844.
83
Id. at 845 (quoting Steven G. Calabresi & Kevin H. Rhodes, The Structural Constitution: Unitary Executive, Plural Judiciary, 105 Harv. L. Rev. 1153, 1166 (1992)).
84
See Kevin M. Stack, The President’s Statutory Powers to Administer the Laws, 106 Colum. L. Rev. 263, 269 (2006) (“absent an independent constitutional power, the statutory limits on the President’s directive authority suggest that executive orders may legally bind agency officials or third parties only when the President has been granted authority in name.”).
85
Barkow, supra note 2, at 806.
86
Id. at 852.
87
Id. at 853.
88
See, e.g., Elena Kagan, Presidential Administration, 114 Harv. L. Rev. 2246 (2001).
89
Barkow, supra note 3, at 849 (citing Peter Strauss, Overseer or ‘The Decider’?, 75 Geo. Wash. L. Rev. 696 (2007)).
90
Id.
91
McConnell, supra note 11, at 27.
92
Barkow, supra note 2, at 822.
93
Love, supra note 3, at 96 n.41.
94
Id. at 99-100 n.60.⁹⁴ President Clinton’s infamous final-day grants,⁹⁵Id. at 100 n.91.
95
96
See generally Mark Osler, The Trump Clemencies: Celebrity, Chaos and Lost Opportunity, 31 Wm. & Mary Bill Rts J. 487 (2022).
97
See David K. Brown, Max Weber and Organizational Theory, in Glob. Encyclopedia Pub. Admin., Pub. Pol’y & Gov. 3949 (Ali Farazmand ed., 2018).
98
Maggie Blackhawk, Petitioning and the Making of the Administrative State, 127 Yale L. J. 1538, 1547 (2018).
99
Love, supra note 3, at 100 n.63.
100
Barkow, supra note 2, at 831 (quoting The Federalist No. 74, at 447 (Alexander Hamilton)).