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Pardoning Arpaio: The Power, But not the Right

By Kary Love

The American people have the right to rely on the Federalist Papers to gain insight into the Constitution, both back when the people were voting on the Constitution and today.

How do I know the Constitution is the supreme law? How do I know the Constitution is supreme over Congress or the President? Because the Constitution says so. The Constitution is the great charter of the American people by which they, and not their agents in office, control their government within its proper bounds.

The United States of America is a “nation of laws,” not a nation subject to the whims of people who happen to occupy elected offices. If it were the latter, it would be a nation where some people are above the law. That is un-American.

The Constitution does give the President the power to pardon. However, the Constitution was represented to the American people by its supporters in explanatory essays called today the “Federalist Papers.” The American people have the right to rely on the Federalist Papers to gain insight into the Constitution, both back when the people were voting on the Constitution (which was viewed with wide skepticism by many who had fought in the Revolution as stepping back from the principles of the Revolution) and today.

All government agents, including Presidents and police, swear an oath to God (usually) to support the Constitution. The founders believed most persons who took such an oath would not lie before God. The content of the character of those taking the oath may be measured by their fidelity to it, and upon that oath the people may judge them.

Alexander Hamilton argued, in Federalist No, 74, that the pardon power is a “benign prerogative” to be exercised in the interests of the “tranquility of the commonwealth.” All of a president’s actions are subject to the overall commitments made in his oath of office and to the Constitution. Hamilton contended that the individual occupying the Office of the President could be trusted to act on this extraordinary authority with a “sense of responsibility” marked by “scrupulousness and caution,” “prudence and good sense,” and “circumspection.”

Having risked their lives and having had friends actually die to achieve independence and a government based on the principles of the Declaration of Independence, men like Hamilton were apparently more dedicated to the Constitution than some leaders of later generations. These founders apparently believed no one elected President would have such a defect of character as to swear an oath before God only to violate it by acts inconsistent with patriotism.

It is right and proper for the people, for whom the President is merely an agent elected to uphold the Constitution, to judge any President’s exercise of the pardon power and ask: Was it used consistent with the Constitution? If the answer is no, the people ought to hold that President accountable for violating his oath and the Constitution.

The pardon of former Arizona Sheriff Arpaio is troubling against this backdrop. Police officers, like Arpaio, also swear an oath to the Constitution. This means, among other things, that they swear to respect the rights of the people under the Constitution, the laws Congress makes, and the rulings federal Courts make, because that is how the Constitution says our government is to work.

Mr. Arpaio was found guilty by a federal court of criminal contempt of court for defying a court order to stop detaining suspected undocumented immigrants.

The criminal charge grew out of a lawsuit filed a decade ago charging that the sheriff’s office regularly violated the rights of Latinos, stopping people based on racial profiling, detaining them based solely on the suspicion that they were in the country illegally, and turning them over to the immigration authorities. These are allegations, later proven to the satisfaction of a Judge, of probable violations of the Constitution.

Hearing the suit, another federal district judge, G. Murray Snow, ordered the sheriff in 2011 to halt detention based solely on suspicion of a person’s immigration status, when there was no evidence that a state law had been broken. An appeals court upheld that ruling, and Judge Snow later reinforced it with other orders.

Mr. Arpaio had his day in court several times. He lost, several times. As a “law enforcement officer” he had a duty to the law that he voluntarily took on when he swore his oath to the Constitution. Mr. Arpaio, having lost in court, could have brought his behavior into compliance with what several Courts had ruled were constitutional bounds. He chose not to do so. When he persisted in violating the Constitution, the Court, which also has a duty to the Constitution, held him in contempt.

Arguably, by pardoning Mr. Arpaio, Mr. Trump appears to endorse Mr. Arpaio’s unconstitutional actions. The office of the President carries relatively narrow duties reflected in the oath of office:

"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.”

Pardoning law enforcement officers who violate the Constitution undermines the very law enforcement that exists to preserve and protect the Constitution. When any President grants a pardon, that President opens to the scrutiny of the American people his fidelity to the Constitution—the core reason for his being President. To what extent, the people ought to ask themselves, does this action encourage contempt for the Constitution? Is such a pardon consistent with the Constitutional parameters of a nation of law?

The American people ultimately determine the character of America. It is up to them: will America be a nation of laws or of the whims of men? It boils down to a judgment: the President has the power to pardon, but in any particular pardon case, does he also have the right?

Kary Love is a Michigan attorney. He has tried many cases involving issues related to Constitutional rights, powers, language, and interpretation.

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This story was published on August 27, 2017.

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