December 25, 2008

Marbury v. Madison and the Toussie pardon?

The attempted revocation of Isaac Toussie's pardon may not be within the scope of presidential powers, and former White House pardon attorney Margaret Love has been quoted in several places expressing skepticism. The White House statement yesterday said in part,

Yesterday the President forwarded to the Pardon Attorney a Master Warrant of Clemency including 19 requests for pardons with direction that he execute and deliver grants of clemency to the named individuals.

The power to grant pardons and clemency is in Article II, Section 2, just a little before the power to make appointments. So I think we may hear about the following language soon from Marbury v. Madison (1803):

The appointment, being the sole act of the President, must be completely evidenced when it is shown that he has done everything to be performed by him. (5 U.S. 157)

But in all cases of letters patent, certain solemnities are required by law, which solemnities are the evidences of the validity of the instrument. A formal delivery to the person is not among them. (at 159-160)

Michael Froomkin has helpfully explained that Chief Justice Marshall wrote about pardons 30 years later, in a way that suggests Bush may get out of this jam with only massive embarrassment rather than a sticky legal issue.

Thanks go to my daughter who pointed out the Marbury connection this morning.

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Posted in History on December 25, 2008 11:52 AM |