Learning the Limits of the Pardon Power from Others

The end of a President’s term brings with it the predictable debate about presidential pardon power—the end of President Trump’s term was no different. Some criticized his pardons of well-known personalities, while others speculated about the possibility he might issue secret pardons, pardon his children, or pardon himself. Much of the discussion revolved around politics and norms, all the while acknowledging the lack of formal constitutional limits on a President’s pardon power, save impeachment. The Framers of the Constitution may have envisioned this nearly monarchical view of the President’s pardon power, but the concept of limitless power seems to run contrary to the purpose of a constitution, which, by design and function, ensures the rule of law by confining the very authorities it creates. Indeed, the Slovak Constitutional Court—the product of a more modern constitutional democracy—has applied rule-of-law principles in reviewing amnesties granted under scandalous circumstances by those empowered by the Slovak Constitution to grant them. In doing so, the Slovak Constitutional Court crafted a jurisprudential blueprint worth considering.

*Professor of Law, United States Air Force Academy. Special thanks to my research assistant, Jessica Williams, for all her hard work on this manuscript and others. The views expressed herein are mine alone and do not necessarily reflect the official policy or position of the United States Air Force Academy, the United States Air Force, the United States Department of Defense, or the United States Government.

Suggested Citation: Douglas B. McKechnie, Learning the Limits of the Pardon Power from Others, 125 Penn St. L. Rev. Penn Statim 24 (2021).

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