“Pardon is granted to necessity.” Cicero
When most Americans heard Joe Biden say that he would never pardon Hunter, they knew that he would; this wailing and shock expressed by media and politicians compared to the relatively clam acceptance by the public exposes a cynical complacency about the corruption of the political class. The fact that presidential pardons are even enumerated in our constitution is itself a corruption carried over from the English monarchy; they are limited to federal offenses and cannot affect an impeachment process.
Cicero’s quote above was principally about justifiable reasons for military action or refraining from doing so making a pardon a necessity. Joe’s pardon was less a necessity for Hunter than it was for the “Big Guy”; the most effective way for Joe to protect himself from further investigation into his influence pedaling scheme was to end Hunter’s liability for what the poor fool documented on his laptop. While the scandal will linger, the pardon will make further inquiry far more difficult; further, Joe still has time to issue more pardons, but without indictments there are no crimes to pardon. While Ford pardoned Nixon prior to an indictment, that precedent may not stand up constitutionally for Joe, and such pardons would imply that there are grounds for investigation of potential crimes.
Presidential pardons have historically been the subject of much criticism, with the abuse reaching its apex under FDR who issued over 3,600; during the waning days of the last Trump administration, Dan Rather humorously asked “Why is the Trump White House suddenly a very polite place to work? Everyone’s going around saying ‘pardon me.’”
Joe’s pardon of Hunter is not just a way to cover up the sins of the father, but illustrates what’s wrong with presidential pardons, and more broadly, the dangerous expansion of the executive branch itself. The former will require a constitutional amendment, a long and arduous process constructed to protect against chaotic and partisan erosion of original intent so prevalent in the constitutions of other nations; the latter is itself an issue of an unconstitutional evolution of the executive branch.
A major step to correct the abusive executive expansion was made this past June when SCOTUS ruled in Loper Bright Enterprises v. Raimondo, overturning the 40-year-old “Chevron Doctrine” which required courts to defer to an agency’s interpretation of ambiguous laws; that doctrine egregiously transferred legislative and judicial powers to the executive branch, giving its agencies the power to issue rules and regulations, in effect laws, bypassing the legislative process or judicial review.
Interestingly, the Trump initiative with DOGE will affect the executive branch more so than any other as it is not only the largest, but the most corrupt, wasteful, and abusive of the three. I seldom give credit to Trump, but his campaign promise to tackle the “Deep State” will, if effective, limit the powers of the administration he will soon head; curiously, the Democratic Party has become the biggest obstacle to that happening, and there are some Republicans who are also resistant. These reforms are long overdue, have the constitutional and electoral imperative to proceed, and present the best opportunity to reduce budget deficits and consequently the national debt; resistance to these reforms exposes the bad faith and deeply rooted corruption so often criticized but seldom addressed.
An even bigger abuse that requires reform is executive orders; while there’s no explicit provision in the Constitution for executive orders, it has been viewed as “implied” under the description of executive powers, but traditionally understood as only directives to employees within the executive branch to clarify their roles and responsibilities. Further, SCOTUS has held that all executive orders must be supported constitutionally, and further that executive orders are not laws as they are not the product of a legislative process; therefore, they are only applicable for employees of the executive branch and still subject to judicial review. This was clearly the intent of the main author of the Constitution, James Madison, when he said that, “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”
Pardon me if I seem irreverent, but I don’t even subscribe to the idea of a President as defined in our Constitution as it provides too much opportunity for the exercise of arbitrary and unchecked power; the biggest supporter of such a powerful entity as expressed in the Federalist Papers was Alexander Hamilton, a known monarchist and main instigator of the Constitutional Convention. Thankfully, there were more liberty minded founders like Madison to limit Hamilton’s influence, but his impact lives with us today with an executive branch that needs a radical makeover. Trump, and all who may follow him to the Oval Office, need to realize that what they do that contributes to the growth of executive power, regardless of their motives, has consequences that will inevitably and negatively impact our liberty.
“Once you’ve built the big machinery of political power, remember you won’t always be the one to run it.” P. J. O’Rourke
