With just one month left until Donald Trump is sworn in as President, immigration advocates are reportedly pressing outgoing President Barack Obama, to test some unique legal theories in the hopes of saving upwards of 200,000 immigrants with criminal records from possible deportation.
In essence, immigration advocates are arguing that President Obama can achieve this goal by using his pardon power in a way that it has not typically been applied. Advocates say the goal is to protect as many as 200,000 immigrants — permanent legal resident “green card” holders — with minor state criminal records from possible deportation under a President Trump.
First, a little background on the president’s pardon power. Generally speaking, the president has the power to pardon any federal crimes. However, he does not have the power to pardon state crimes. That power is typically given to a state governor. Thus, Obama is powerless to pardon these roughly 200,000 green card holders that advocates want covered by the action who have two or less minor misdemeanors on their record — marijuana possession and petty theft, but the list of covered offenses is not exactly clear.
Regardless, here is how advocacy groups say their proposal would work, as reported in The New York Times.
A green card holder with a state criminal record can be deported, under federal law. The deportation proceeding is a federal matter, but it is a civil proceeding, not a criminal proceeding. Therefore, the advocates say, the president should use his pardon power in a way that essentially clears these 200,000 potential deportees from having to face a federal deportation hearing.
In other words, it would save them for having to go through a deportation hearing based on their state criminal history. That is key to the advocates of the plan, because they fear Trump will make good on his repeated promise to deport anyone in violation of the country’s immigration laws that has a criminal record.
The proposal is controversial and it is questionable as to whether the president’s pardon power extends beyond federal criminal matters into federal civil proceedings.
Had the green-card holder violated a minor federal statute, there is no question Obama could issue a pardon and that would be the end of it — no deportation. In fact, according to The Times, Obama (and past presidents) have blocked deportations based on federal crimes by issuing pardons.
No president, however, has tried to use the pardon power by essentially blocking one’s eligibility to go before the federal civil immigration hearing. Again, the question comes down to whether a president can use his pardon power for federal civil immigration violations.
According to the report, “advocates argue that when the Constitution was drafted, the distinction between criminal and civil law was less clear, and that pardon power has been used to dismiss offenses that would constitute civil violations under today’s standards.”
Furthermore, they argue the use of the word “offenses” in the pardon clause, rather than “crimes” is evidence that the power is extends beyond use in the criminal context. Additionally, the advocates claim the Supreme Court has envisioned the pardon clause as identical to the power held by King George of England at the time the Constitution was written.
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