THE BLOG
07/09/2014 01:20 pm ET Updated Sep 08, 2014

Can Obama Pardon Undocumented Immigrants and Let Them Stay? Civil War Cases Point the Way

Article II, Section 2 of the United States Constitution states that the president "shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment." It has been suggested in some quarters that President Obama use this power, which is "essentially unfettered" according to a report from the Congressional Research Service, to grant amnesty and permanent residency to all or a subset of undocumented immigrants. Legal scholars have objected that the president's pardon power only applies to crimes per the usual legal definition of 'offenses,' and an immigrant's unauthorized presence in the United States is a civil -- not criminal -- matter under the U.S. Code and thus not 'pardonable.'

The civil remedy for unauthorized presence is deportation. But the system is overwhelmed by sheer numbers -- with deportation capacity of about 400,000 per year versus up to 11 million cases: a 25-year docket -- and thus ultimately unworkable while always a threat. This has led to the current conventional wisdom that the shadow reality of the undocumented can only be resolved by act of Congress, which is highly unlikely given the refusal of the Republican-controlled House of Representatives to even allow a vote on immigration reform.

While many in Congress and elsewhere would be surprised to learn that undocumented presence of aliens is not a crime, under U.S. law, that reality is not necessarily the end of the analysis of whether there is a constitutional way for the president to use the pardon power to address the prevailing Congressional gridlock over the status of over 11 million residents of the United States who are otherwise not legally entitled to be here but who are otherwise not criminal offenders except by way of their entry here.

Under Title 8 U.S. Code, section 1325, any alien "who (1) enters or attempts to enter the United States at any time or place other than as designated by immigration officers, or eludes examination or inspection by immigration officers, or (2, 3) attempts to enter or obtains entry to the United States by a willfully false or misleading representation or the willful concealment of a material fact, shall, for the first commission of any such offense, be fined under title 18 or imprisoned not more than six months, or both...." Clearly, therefore, those who, in common parlance, "sneak across the border" to get into the U.S., clearly are committing a criminal "offense" pardonable by the president. Even Governor Chris Christie of New Jersey, back when he was a federal prosecutor, got mixed up on this issue when he stated that being undocumented isn't a crime -- a statement later walked back to refer only to undocumented presence, which as noted is not a criminal violation but which, as a civil matter, the government may punish by deportation (but the president can't pardon).

It is at this point where the conventional legal wisdom seems to break down. The thesis is that even if the president were to pardon the undocumented border crossers for their offense of sneaking into the U.S. in violation of Title 8, Section 1325, immediately upon the effectiveness of that pardon they would yet remain present in the U.S. without proper authorization and therefore subject to the civil deportation penalty. So argues Professor John Harrison of the University of Virginia, a legal scholar cited above, who concludes that "a pardon can't make someone a ...lawful resident" (as reported in the Washington Post blog post by Suzy Khimm, 12/06/2011). The same point of view has been taken up among strong opponents of "amnesty" like callers to Rush Limbaugh's daily radio broadcast; but even Rush seems to disagree with this reasoning!

Mr. Limbaugh is not a legal scholar, of course, but he does seem to have settled law on his side. According to CRS Annotated Constitution (published by Cornell Law School), the 'great leading case' on the extent of the president's pardon power is Ex parte Garland, decided by the Supreme Court shortly after the end of the Civil War. Congress had proscribed the practice of law in federal courts by as any person who could not affirm that he or she had never taken up arms against the United States or given aid or comfort to its enemies. The petitioner was a Confederate sympathizer who could not take such an oath but had been among those granted a 'full' pardon by President Johnson "for all offences... arising from participation, direct or indirect, in the Rebellion." The Court had to decide whether Garland was subject to the Congressionally-enacted fitness test, or, instead, armed with the pardon, entitled to practice in the federal courts.

For a divided Court, Justice Field stated that "as to the effect and operation of a pardon ...all the authorities concur. A pardon reaches both the punishment ...and the guilt of the offender; when the pardon is full, it releases the punishment and blots out the existence of the guilt." Most critically, he went on to hold that "in the eye of the law the offender is as innocent as if he had never committed the offense." If granted before conviction, the full pardon "prevents any of the penalties and disabilities consequent upon conviction from attaching... if granted after conviction, it removes the penalties and disabilities" (Citing Ex parte Garland, 4 Wall (71 US) 333, 380 (1866).

It would seem that the civil penalty of deportation for unlawful presence in the U.S. "attaches" to the criminal act of illegal entry (except in the case of overstaying a visa -- see below). Thus a "full" presidential pardon would seem to put the person who does so in an innocent position "as if he had never committed the offense," not in a virtually permanent state of illegality interrupted only the infinitesimal, momentary effect of a pardon, as Professor Harrison argues, and thus "prevents" or "removes" the possibility of deportation.

A future GOP president, for example, would seem to lack power to enforce deportation of those pardoned by President Obama under the Supreme Court's decision in another case relating to Civil War penalties (U.S. v. Klein, 13 WALL (80 U.S)) 128 (1872), where the court majority held that Congress cannot limit the effects of a presidential amnesty.

One class of those whose presence in the U.S. is unauthorized would seem to be truly beyond the pardon power, namely, those who have overstayed their visas. These individuals, who may comprise as much as 40% percent of those in the U.S. without authorization, did not in fact enter the country illegally, so they have indeed committed no "offense" under U.S. law subject to pardon.

Surely any decision taken by President Obama to pardon undocumented immigrants and spare them deportation would invite vociferous political attack. He can impose conditions on the pardons like paying a fine, and certainly cannot pardon future undocumented immigrants prospectively, but those limitations would not silence critics. Because Congress's only remedy would seem to be impeachment, such an effort would be predictable, if not likely to end in conviction even if Republicans win control of the Senate in 2014. Obama could wait until his last day in office to obviate such an outcome. But if his legal scholars concur with the analysis in this blog, he might also take action during this August's Congressional recess, thus virtually assuring that the coming Congressional election will be a referendum on whether the country would want to go down the impeachment road again.

While immigration is obviously is a highly emotional and visceral political issue, presidential pardons have been resorted to before in just such highly-charged circumstances: Ford pardoned Nixon; Carter pardoned Vietnam War draft evaders. Neither was reelected. But President Obama does not have that problem.

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By Terry Connelly, Dean Emeritus, Ageno School of Business, Golden Gate University

Terry Connelly is an economic expert and dean emeritus of the Ageno School of Business at Golden Gate University in San Francisco. Terry holds a law degree from NYU School of Law and his professional history includes positions with Ernst & Young Australia, the Queensland University of Technology Graduate School of Business, New York law firm Cravath, Swaine & Moore, global chief of staff at Salomon Brothers investment banking firm and global head of investment banking at Cowen & Company. In conjunction with Golden Gate University President Dan Angel, Terry co-authored Riptide: The New Normal In Higher Education.

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