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naraburns  nihil supernum  2yr ago (text post)   36240 thread views

Culture War Roundup for the week of October 3, 2022

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I'm surprised no one has mentioned what I see as the biggest problem with this. Do we really want presidents to effectively unilaterally nullify laws the president thinks are wrong? How would those in the blue tribe react if a President Trump pardoned Jan 6th offenders? How would those in the red tribe react if a President Kamala Harris pardoned BLM rioters (supposing some future 2020-summer-of-unrest-like scenario where offenders were charged federally, for the sake of keeping this comparison apt)?

Yes, presidents have the power to pardon, but I don't think we should let that slide into something that looks quite like undermining the separation of powers. This is just the latest in a long-running series of examples (student loan forgiveness, eviction moratoriums, vaccine mandates via OSHA, Trump's border wall funding via "emergency" powers, DACA under Obama) where the executive is trying to usurp power that belongs to the legislature.

I think there's a sense in which pardoning one's political supporters is worse than pardoning a more generic crime, since there's an obvious conflict of interest.

The entire point of giving politicians the ability to pardon is, presumably, that they should sometimes use it; specifically I think it's supposed to be used to "patch" cases of injustice in the legal system. Still, I guess I agree that it probably wasn't intended to allow the wielder to effectively strike any law they dislike from the books when frustrated by the democratic process for removing it.

However, in this case, as acknowledged by the tweet thread, it seems like the power to determine how illegal a drug is has already kind of been delegated to the executive in the form of the DEA under the DoJ. (Because, as everyone knows, the US legislative process is kind of broken.) In fact, as people have pointed out, there isn't even anyone currently in federal prison for simple possession of marijuana; the federal law against simple possession largely goes unenforced, I guess? So this isn't the pardon power being used to de facto nullify the will of the legislature, just to adjust the punishment the executive inflicted.

Do we really want presidents to effectively unilaterally nullify laws the president thinks are wrong? How would those in the blue tribe react if a President Trump pardoned Jan 6th offenders?

There is some amount of precedent to pardoning (or more likely commuting sentences) of perceived political prisoners. Carter rather famously pardoned commuted the sentences of the Puerto Rican nationalists who "attempted to assassinate President Truman" and "sprayed gunfire from a gallery overlooking the House of Representatives". Obama commuted Manning's sentence.

Honestly pretty much all application of the pardon and commutation powers are some combination of nepotism and corruption (Clinton pardoned his brother, among others) and politically principled overturning of perceived injustices.

Carter did not pardon them; he commuted their sentences, and it was not because they were "perceived political prisoners" -- in the article you link, that claim is explicitly rejected by everyone involved.

Honestly pretty much all application of the pardon and commutation powers are some combination of nepotism and corruption (Clinton pardoned his brother, among others) and politically principled overturning of perceived injustices.

Well, yes, because that doesn't leave much in the way of other reasons for the application of those pardons. The question is what percentage is each

Whoops, I knew it was supposed to be "commuted" but must have been in too much of a hurry when typing the original comment to notice. Thanks for correcting that!

Do we really want presidents to effectively unilaterally nullify laws the president thinks are wrong?

Not sure whether we want it, but it is obviously what the founding fathers wanted. Of course we go down the rabbit hole of why the fuck are drugs crimes federal crimes to begin with. Except the trafficking across state lines, everything else should be state.

Do we really want presidents to effectively unilaterally nullify laws the president thinks are wrong?

Yes.

Negative vs positive policy, and the constitutional rights ratchet only turns one way. I'm always in favor of needing unanimity between the Congress, the executive, and the courts to imprison people or restrict their freedom in any way. If even one branch chooses not to restrict freedom, it shouldn't be done. That goes for the Jan 6th protestors, BLM rioters, etc. If the president does not feel that public safety is served by spending taxpayer money to imprison these men, they should be released.

Similarly if the courts find it unconstitutional, but the legislature does pass a law on it, then the executive can't choose imprisonment without the courts. And without a law being passed by the legislature, the courts and the executive can't get together and decide it should be illegal. In this case the courts and the legislature might be pro restricting freedom, but if the executive isn't then it doesn't matter, the freedom defaults to the people.

Agree and disagree. There is one big difference on these pardons. They have high mostly bipartisan support. Not sure on GOP numbers but I would guess it’s close to 50% or higher.

The student loan forgiveness was a bigger deal for executive action because it was not highly popular.

Im a Democracy it’s not efficient to just vote on everything. But in this case the move seems popular so even if it’s technically an overreach of authority - the whole Kavanaugh doctrine of using molehills into mountains - it’s less bad because it’s popular.

And fwiw I sort of support Trump pardoning 1/6 defendants because I don’t think they’ve been treated judicially. But I’m not sure it will be worth the politically capital it would costs. For Biden he’s getting positive political capital for the move because it’s highly positive. The whole notion of political capital and being punished in the next election for doing unpopular things is the checks and balances for this move.

Agree and disagree. There is one big difference on these pardons. They have high mostly bipartisan support. Not sure on GOP numbers but I would guess it’s close to 50% or higher.

The student loan forgiveness was a bigger deal for executive action because it was not highly popular.

If it's so popular, have Congress pass legislation decriminalizing marijuana. If Congress can't/won't, then why should it be okay for a president to unilaterally decide something similar?

The whole notion of political capital and being punished in the next election for doing unpopular things is the checks and balances for this move.

This isn't a parliamentary system. We don't do that here. Separation of powers exists whether we like it or not, and in my opinion it exists for a good reason.

How would those in the red tribe react if a President Kamala Harris pardoned BLM rioters

Did anything at all happen to these people ? Even suspended sentences ? I recall a case of activists setting a cop car on fire and getting six months, so..

Different optics on the justice system just failing to do its job initially versus actively pardoning people, IMO.

The AP says that those who have been sentenced in federal court have averaged 27 months in prison.

That's really not very helpful given they don't say what proportion has been sentenecd.

Also worthy of noting is that the number of those sentenced was 70. Given that of "Distrupt J6" protestors, an event in which much fewer participated in, 65 have been sentenced, 70 seems low.

As in my comment as a side not I favor Trump pardoning 1/6 protestors because their punishments seem out of line of summer riot protestors. I believe the data fits this. But it is likely an unwise use of political capital.

How would those in the red tribe react if a President Kamala Harris pardoned BLM rioters (supposing some future 2020-summer-of-unrest-like scenario where offenders were charged federally, for the sake of keeping this comparison apt)?

Your point is well taken, but I have to say that my reaction to this would be, "yeah, I kind of figured that the people that fucked my city up wouldn't face consequences if they were useful to the left", which has been exactly my reaction to the local handling of riots and looting.

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