Congress blatantly oversteps its powers for the sake of two Border Patrol agents.

The law, lawyers, and the court.
July 26 2007 5:09 PM

The Pardon Pander

Congress blatantly oversteps its powers for the sake of two Border Patrol agents.

The House of Representatives is perched to equal or better the instruction of  President George W. Bush and Vice President Richard Cheney in sneering at the Constitution's separation of powers. In an amendment to the pending an appropriations bill for commerce, justice, and science * that passed last night on a voice vote, the House usurped the president's pardon authority by commuting the sentences of the two former Border Patrol agents convicted in 2005 of federal firearms violations and obstructing justice in connection with shooting an illegal-alien smuggler. Ignacio Ramos and Jose Alonso Compean were sentenced to 11 and 12 years, respectively. Their case has become a cause célèbre on the right. And now, Congress has responded to the outcry by subordinating the Constitution in defiance of the congressional oath of office.

The amendment that passed last night, sponsored by Reps. Ted Poe, R-Texas, and Duncan Hunter, R-Calif., provides: "None of the funds made available under this Act shall be used by the Bureau of Prisons to incarcerate Ignacio Ramos or Jose Alonso Compean." But the Constitution entrusts the power to pardon offenses against the United States or to commute sentences exclusively to the president. The enumerated legislative powers do not hint at a concurrent authority in Congress. Pardons or commutations, moreover, have invariably been associated with law enforcement as opposed to law-making. In the 1872 case United States v. Klein, the Supreme Court held unconstitutional an attempt by Congress to subtract from the legal effect of a pardon.

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Contrary to a common assumption, the power of the purse does not give this amendment any greater claim to constitutionality. As Shakespeare might have versified, a legislative abuse by any other name smells as rotten. Thus in 1946, the Supreme Court invalidated a federal appropriations statute that denied salaries to three named State Department officials. (The case is United States v. Lovett.) If the Poe-Hunter amendment were constitutional, the power of the purse could be manipulated to compromise all law enforcement. For example, Congress could prohibit the expenditure of money to prosecute a list of favored individuals, including every member of the House and Senate.

Critics have asserted that Ramos and Compean were made scapegoats to appease the government of Mexico. Defense counsel also moved for a new trial after three jurors in affidavits asserted that their votes to convict had been coerced. But these types of claims are a staple of adjudication from the trial level up to the U.S. Supreme Court, not grounds for a special piece of legislation that makes an end run around the judiciary. No allegation has surfaced insinuating that the judges involved in the case have been compromised. Appeals have not yet been exhausted.       

The squalid motivation for the Poe-Hunter amendment's defilement of the Constitution is, of course, appeasement of popular fury over illegal immigration. Members of Congress covet an opportunity to signal anger over lax border control to their constituents. What better way than to vote to pardon Border Patrol agents who themselves became lawbreakers in enforcing the immigration laws, i.e., to champion official lawlessness in the name of an allegedly higher good. Rep. Hunter has lamented that the convictions of Ramos and Compean will demoralize the Border Patrol and will reinforce the problems the United States has in defending its borders. This is the same logic that President Bush and Vice President Cheney use in justifying their violations of law in the name of national security and executive power. The duumvirate likewise believes that kidnappings, torture, indefinite detentions without charge, burglaries, mail openings, and illegal surveillance are justified in the name of a higher public good—countering international terrorism. What's the Constitution between friends?

The Constitution creates a legitimate avenue for members of Congress to encourage the president to exercise clemency. Committee hearings can be held to cast light on the facts of a case; individual members may write the White House to urge pardons or commutations. Both avenues have been pursued in the Ramos and Compean cases. The Senate judiciary committee scrutinized the prosecution with testimony from U.S. Attorney Johnny Sutton of the western district of Texas on July 17. Members of Congress in droves have pleaded for pardons with President Bush.

At present, the White House has resisted. The president could ultimately change his mind. But the point is that it's his prerogative and no one else's. The Constitution will run aground unless each branch of government exercises self-restraint by honoring its strictures. Congress will forfeit its moral authority to hold President Bush politically accountable for his crimes against the Constitution if it apes his misbehavior. The law cannot be a collection of political maneuvers that know no bounds.

Correction, July 27, 2007: Because of an editing error, the original sentence wrongly stated that the amendment was to a defense appropriations bill. (Return  to the corrected sentence.)

Bruce Fein is a constitutional lawyer with Bruce Fein & Associates Inc. and author of Constitutional Peril: The Life and Death Struggle for Our Constitution and Democracy.

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