What Can Be Done About Governors Granting Pardons as Get-Out-of-Deportation-Free Cards

As Jennifer Hickey notes, this past Saturday, December 23, California Governor Jerry Brown granted full pardons to two criminal aliens who were facing imminent deportation.  Not to be outdone, New York Governor Andrew Cuomo followed Brown’s lead and pardoned eighteen of them yesterday: the press release from his office highlights a few convicted for theft or dealing drugs, but the details of the rest are still unclear. 

Each of these pardons is just another small part of a much larger pattern where the open-borders crowd look to friendly governors to act as “saviors” to help keep illegal aliens convicted of sometimes even the most serious felonies here in the United States.  Governors have even been encouraged to make doing this a “litmus test” for proving how much they “can stand up to the Trump administration.”

Obviously this kind of willful provocation calls for a robust response.  There are two general ways to change the law and stop or at least restrict this recklessly dangerous practice: at the federal level, as well as state-by-state.  One way doesn’t prevent the other, and doing both would be best.

First, under federal immigration law, convictions for certain types of crimes make aliens (including legal aliens in the U.S. on visas and green cards as well as illegal aliens) deportable, and others make deportation mandatory.  Whether a pardon eliminates those immigration consequences of the conviction is a question of federal law that depends on what the conviction was for.  Generally speaking, federal law says that a pardon doesn’t eliminate the immigration consequences of a conviction for a drug crime, a gun crime, domestic violence, document fraud, espionage, terrorism, or a few other narrow categories.  But for anything else, it does.

What’s essential to recognize is that, with respect to immigration, a pardon has this effect only because the federal immigration statutes enacted by Congress specifically say that it does.  It’s not because a pardon granted under state law has some special independent power to bind a federal proceeding like immigration or to trump federal law, which under the Supremacy Clause of the U.S. Constitution is the supreme law of the land.  Courts, even including the notorious Ninth Circuit, have repeatedly held that whether a pardon has any effect on immigration at all is up to Congress to decide.

Therefore, Congress should amend the immigration statutes to eliminate or at least further restrict the ability of governors to keep criminal aliens in this country with their pardon powers.  For instance, Congress could add more categories of crimes to those where a pardon already has no effect, or they could also say a pardon has no effect on certain categories of aliens, such as based on their prior criminal history and/or a history of prior deportations and re-entry.  Of course, eliminating the effect of pardons altogether would be best, but any change at all would likely be some improvement.

Meanwhile, at the state level, in most states, the governor has unlimited power to pardon any crime under state law, entirely at his or her discretion, and without any real checks on that power.  That’s the typical model.  But many states do depart from it in one way or another.

In most states, there is an appointed board (called the parole board, board of clemency, board of pardons or something similar) involved in the pardon process, although in most its recommendation is merely advisory; however, in Arizona, Louisiana, Oklahoma, Pennsylvania and Texas, the board must recommend in favor of a pardon before the governor can grant one.  In Delaware, Florida and Nebraska, instead of being appointed, the board consists of all or most of the statewide elected officials, and a majority is required to issue a pardon.  In Minnesota, the board consists of the governor, the attorney general, and the chief justice, while in Nevada it includes the governor, attorney general, and all the justices of the state supreme court. 

In Massachusetts, the governor must have pardons approved by the elected Governor’s Council, in New Hampshire similarly by the elected Executive Council, while in Rhode Island they must be approved by the state Senate.  Finally, in a few states, the governor has little or no direct role in the pardon process at all: in Alabama, Connecticut, Georgia, South Carolina and Utah, he or she appoints the board, but it is the board that then grants pardons, with no additional involvement from the governor.

Obviously, the more procedural checks and other impediments to granting a pardon, the less often they’ll be granted.  The more people involved, whether appointed or elected, likewise.  So states without pardon boards should create them; states with boards that are merely advisory should think about making their recommendations mandatory; and perhaps states that already have strong boards should aim to strengthen them even more, by requiring supermajority votes or unanimity, as well as by reducing or eliminating the governor’s role altogether.

In most states, changing the actual process of how a pardon is granted would take an amendment to the state constitution, but in quite a few, it could also be done with just a simple bill passed by the legislature and signed into by the law by the governor.  Either way, and especially in conjunction with any changes at the federal level, it’s worth doing if it stops even one more criminal alien from receiving a Get-Out-Of-Deportation-Free Card.