PARDON POWER

Wehle delivers a critique of the unchecked presidential power to pardon.

The author astutely observes that when the presidential power to pardon was ratified in 1788 (enshrined in Article II of the United States Constitution), it granted more power to the executive branch than was currently wielded by King George III. While generally unchallenged, the power is a peculiar one when understood within the context of a constitutional republic characterized by governmental limitations and checks and balances—Wehle describes it as “a gaping level of unconstrained power.” Of course, there were reasons for this remarkable endowment of prerogative; it allows for the expression of mercy and the granting of amnesty, and the ability to “to address fragile political situations that traditional diplomacy or the rule of law cannot outpace” can be politically expedient. However, Wehle convincingly argues that the “enormous risks of abuse” outweigh the potential benefits, asserting that such a mandate naively assumes a “fairness and integrity” with respect to the one who exercises it. In this intellectually challenging study, the author traces the complex history of the pardon power—as exercised by kings, parliaments, and clergy—and diligently charts its excesses. She recognizes the great hurdles to reforming it, chiefly the need for a constitutional amendment. There are ways to curb its abuse, she avers, including making pardon power subject to increased transparency and constraining the lobbying for pardons from presidents. Wehle’s prose is impressively lucid and accessible, particularly welcome virtues given the technical nature of the subject matter; none of her arguments presuppose that readers have specialized backgrounds in either law or American history, though either would be helpful. At the very least, she poses a provocative challenge to what is often seen as an “unlimited and sacrosanct” convention and manages to “reveal that the pardon power deserves attention and cannot be whisked atop a pedestal on the blithe assumption that the Constitution (for presidents, at least) unequivocally says this power is acceptable.”

A thoughtful and painstaking work of legal scholarship.