Can Obama Pardon Illegal Aliens?

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penandphonePresident-elect Donald Trump has promised to end President Obama’s Deferred Action for Children of Aliens program (DACA).  As a result, advocacy groups have been calling on President Obama to pardon the approximately 750,000 applicants approved under DACA. According to the pro-illegal alien narrative, this would place the DACA applicants on a “path to citizenship.”

But there is a problem with this narrative: the pardon power doesn’t apply to civil offenses.  Although crimes are most often perpetrated upon individuals, criminal acts are considered to be offenses against the community as a whole. Criminals are prosecuted in the name of the government, e.g., State v. John Doe. And they are punished by imprisonment, in order to deter antisocial behavior.

Civil violations consist of behaviors that interfere with the administrative interests of the state. They typically include violations of building codes and the failure to maintain one’s property in a safe condition, and similar acts. Rather than punishing them with imprisonment, the state imposes fines to recover some of the expenses caused by the violation.

Article II, Section 2, Clause 1 of the Constitution is very clear that, “The President…shall have the Power to grant Reprieves and Pardons for Offences against the United States, except in cases of impeachment.” In other words, the president can pardon federal criminal offenses, but not civil violations. While Improper Entry by an Alien is a misdemeanor crime, unlawful presence in the United States is a civil violation. Therefore, a presidential pardon would erase the crime of illegally entering the United States but would have no effect on the civil offense of unlawfully remaining.

The presidential power to pardon derives from old English law. It served as a mechanism to restore the rights lost by a felon who, although guilty of a crime, had fallen prey to extenuating circumstances. It was not a tool for the king to willfully evade those laws he disliked. And such an abuse would likely have led to his overthrow.

Frustration with President Obama’s misuse of executive authority appears to have been one of the factors that caused American voters to elect Donald Trump president. Rather than compound his past errors with an “amnesty-by-pardon” scheme, President Obama should heed the will of the people and let the Trump administration sort out the mess caused by his illegal DACA policies.

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About Author

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Matthew J. O’Brien joined the Federation for American Immigration Reform (FAIR) in 2016. Matt is responsible for managing FAIR’s research activities. He also writes content for FAIR’s website and publications. Over the past twenty years he has held a wide variety of positions focusing on immigration issues, both in government and in the private sector. Immediately prior to joining FAIR Matt served as the Chief of the National Security Division (NSD) within the Fraud Detection and National Security Directorate (FDNS) at U.S. Citizenship and Immigration Services (USCIS), where he was responsible for formulating and implementing procedures to protect the legal immigration system from terrorists, foreign intelligence operatives, and other national security threats.He has also held positions as the Chief of the FDNS Policy and Program Development Unit, as the Chief of the FDNS EB-5 Division, as Assistant Chief Counsel with U.S. Immigration & Customs Enforcement, as a Senior Advisor to the Citizenship and Immigration Services Ombudsman, and as a District Adjudications Officer with the legacy Immigration & Naturalization Service. In addition, Matt has extensive experience as a private bar attorney. He holds a Bachelor of Arts in French from the Johns Hopkins University and a Juris Doctor from the University of Maine School of Law.

22 Comments

  1. avatar

    Tuesday the 29th will make 3 weeks since the election and Hillary’s “lead” in the popular vote continues to be added to by the hundreds of thousands. I guess by January she will be ahead by 10 million. Where are these votes coming from. Before the polls closed on the West Coast, Trump was ahead by almost 2 million votes but it’s not surprising that she might take a small lead in the popular vote when those states came in. However it’s a little suspicious that she continues to increase the popular vote lead, especially when they all seem to be coming from heavily Democratic areas where asking to see a proper secure ID seems to be a racist act so it’s all on the honor system.

    We don’t need recounts, we need investigations by the media [which they refuse to do] into how many votes are being cast by dead people and non citizens, because there is ample evidence it is happening on a large scale. Let the media and Democrats attack Trump for his remarks. Who cares. They will do it no matter what he does.

    • avatar

      It comes from the will of the people … the results but u still believe pigs fly N they r all illegal votes…hahaha!!!

      • avatar

        Trump stopped 1000 jobs at Carrier from going to Mexico, which was already in the worrks. Hillary would not have made any effort to block it because she’s all for “free trade” meaning she has no problems with jobs leaving the country. If she had won, the TPP trade deal would have been passed in the lame duck session. His election stopped it because all the double dealing weasels in Congress on both sides would have been pointed out by Trump. Do you have any real arguments or just your usual endless troll babble?

    • avatar

      Do u r admitting the system is rugged N since Trump won… he won based on illegal votes in…think think think what u write…. u r a bit of a mess… if u were hones N real u would complain about the remapped of the districts to manipulate the outcome on their favor if a close raise.

      Rumor has it Trump dud not do it sling N Russia was involved in a very sophisticated machine. But u approve this

      • avatar

        Leland will u ever be happy???…..Trump won N that I’d it but the will of the People says otherwise… now he would fun thus place as a slave Lord….like his businesses….N I thought u were an American……

  2. avatar

    There’s no doubt in my mind that the POS currently residing in the White House, will continue his blatant lawlessness and overreach until his very last moment in office.

  3. avatar

    Ligaya Fabian of 1631 El Camino Real #8 Tustin Ca 92780 submitted fake documents and paid money to obtain a driver’s license but the dmv found out and revoked the license. She jumpshipped her flight from Germany to Canada at lax to get here. She now has a green card.

  4. avatar

    Funny guys….all of the sudden they are no longer criminals but just a civil offense….hahahaha!!!?

    • avatar

      Yes Peter

      Its a misdemeanor to invade our country illegally. Daily “multiple” misdemeanors= FELONY.? So they all are likely committing a FELONY being here daily over a period of time. Ask any criminal attorney.

      • avatar

        Educate yourself n learn our laws n differences between a civil offense n a criminal one….also by your statement you generalize all crossed the borders… Like saying all smoke pot…so therefore u zoo as well… Which makes u a criminal

      • avatar

        So since u know u don’t smoke pot illegally.. Right?…then therefore u r no criminal….I just use your brains to give u an example n the reason European s think we r idiots….

  5. avatar

    He’s going to get his way any way he can get it. He ignores the constitution willfully. He couldn’t get amnesty through Congress so he assumed he had the right to do it by executive order. Now the opposing party will take the White House and so his majesty probably thinks he can do it through misuse of the pardon provision. What he really is is a banana republic dictator. It’s fine if you agree, but if you don’t he will use every trick in the book around the plain language of the law.

    As usual the media is trying to tag Trump with associations to groups he has repeatedly denounced. But there is still continued media silence on Keith Ellison, the Muslim Congressman who is endorsed by many for Democratic chairman. Ellison has a decade long well documented association with Louis Farrakhan and the racist Nation of Islam.

    There are two investigations the new Congress needs to carry out. One would be investigating how many non citizens are voting. Several studies have already shown this to be a widespread problem. The other would be the truth behind the claims by a Democratic operative that their campaign was funding violence at Trump rallies.

    Naturally the Democrats and their media buds will attempt to cover it all up and yell racism but the media continues to ignore these kinds of stories at their own peril. The public is already wising up to their bias.

      • avatar

        Do you have any purpose in life other than being a troll. What does one thing have to do with the other? His margin might have been even bigger without fraudulent votes for Hillary in those states where they let people vote on the honor system, essentially just checking off a box proclaiming themselves citizens. Since we know illegals just ignore our laws anyway, what makes anyone think they won’t lie about being citizens in order to vote. There are state races all the time that come down to a matter of a thousand votes or less. Why are people like you so afraid of investigations into the subject.

        There have already been numerous studies done, one in Virginia, that show many non citizens on the voter lists and voting. Once they have voted their votes count and nothing happens to them other than removing them from the lists. There is nothing wrong with asking people to provide a secure ID. All that stuff about it discriminating against the poor is just the usual excuse making. Every state has public and private agencies that will help anyone get a valid ID for free.

        • avatar

          Keep on dreaming Leland N your wishful thinking you have no more excuses to make u have what u wanted… so!!!! Like u said he won fair N square unless proven otherwise else Hillary won The People

          • avatar

            Answer this question. Should non citizens be permitted to be on the voter lists and vote? Just answer yes or no. No speeches, just answer.

        • avatar

          Leland what you are a funny guy!!!!!! After all Trump is right the system is rigged but on his favor ..like the Republicans reference the district’s States such that fir a 50% it close calls .. Republicans would win…do your research, learn…be independent thinker