Stew Lilker’s

Columbia County Observer

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Pardoning Arpaio: The Power Is Not the Right

The Constitution is the supreme law and supreme over Congress and the President: it says so. The Constitution is the great charter of the American people by which they, not their agents in office, control their government within its proper bounds.

America is a “nation of laws,” not the whims of people who occupy elected office. If America is a nation of the whims of the elected, it is a nation where some people are above the law. That is un-American.

The Constitution gives the President the power to pardon.

The Constitution was represented to the American people by its supporters in explanatory essays called the “Federalist Papers.” The American people have the right to rely on the Federalist Papers to gain insight into the Constitution, both back when the people were voting on it and today.

All government agents, including Presidents and police, swear an oath, usually to God, to support the Constitution.  The founders believed most persons who took such an oath would not lie before God.  The character of those taking the oath may be measured by their fidelity to it and upon that the people may judge them.

Alexander Hamilton argued in Federalist No, 74, that the pardon power is a “benign prerogative” to be exercised in the interests of the “tranquility of the commonwealth.”

All of a president’s actions are subject to the overall commitments made in his Oath of Office and to the Constitution.  Hamilton contended that the individual occupying the Office of the President could be trusted to act on this extraordinary authority with a “sense of responsibility” marked by “scrupulousness and caution, prudence and good sense,” and “circumspection.”

Having risked their lives and having had friends actually die to achieve independence, men like Hamilton were apparently more dedicated to the Constitution than some of later generations. They believed no one elected President would have such a defect of character to swear an oath before God only to violate it by acts inconsistent with the blood of patriots.

It is right for the people, for whom the President is an agent elected to uphold the Constitution, to judge any President’s exercise of the pardon power and ask:  was it used consistent with the Constitution?  If the answer is no, the people ought to hold that President accountable for violating his Oath and the Constitution.

The pardon of former Arizona Sheriff Arpaio is troubling against this backdrop.

Police officers, like Arpaio, also swear an oath to the Constitution.  This means, among other things, they swear to respect the rights of the people under the Constitution, the laws Congress makes, and the rulings of federal Courts. That is how the Constitution says our government is to work. 

Mr. Arpaio was found guilty by a federal court of criminal contempt of court for defying a court order to stop detaining suspected undocumented immigrants.

The criminal charge grew out of a lawsuit filed a decade ago charging that the sheriff’s office regularly violated the rights of Latinos, stopping people based on racial profiling, detaining them based solely on the suspicion that they were in the country illegally, and turning them over to the immigration authorities. These charges were proven to the satisfaction of a Judge.

Another federal district court judge, G. Murray Snow, ordered the sheriff in 2011 to halt detention based solely on suspicion of a person’s immigration status when there was no evidence that a state law had been broken. An appeals court upheld that ruling and Judge Snow later reinforced it with other orders.

Mr. Arpaio had his day in court several times. He lost several times.

Mr. Arpaio had a duty to the law when he voluntarily swore an oath to the Constitution. Mr. Arpaio, having lost in court, could have brought his behavior into compliance with what several courts had ruled were constitutional bounds.  He chose not to do so.  When he persisted in violating the Constitution, the court, which also has a duty to the Constitution, held him in contempt.

By pardoning Mr. Arpaio, President Trump appears to endorse Mr. Arpaio’s actions, which are contrary to the Constitution. The office of the President carries relatively narrow duties reflected in the oath of office:

"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."

Pardoning law enforcement officers who violate the Constitution undermines the very law enforcement that exists to preserve and protect the Constitution.

When a President grants a pardon, the President opens to the scrutiny of the people his fidelity to the Constitution.

The people ought to ask themselves: to what extent does this pardon encourage contempt for the Constitution? Is such a pardon consistent with the Constitutional parameters of a nation of laws?

The American people ultimately determine the character of America. It is up to them:  will America be a nation of laws or of the whims of men?

Kary Love is a Michigan attorney, and is syndicated by PeaceVoice.

Graphics and layout by the Observer; Arpaio composite: CBS/AP; Hamilton by gammaman - PhotosForClass.com

This piece was reprinted by the Columbia County Observer with permission or license.

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