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For instance, if I really hate littering, and I somehow become President of the United States, could I effectively make littering a capital offense by promising to immediately pardon anyone who kills a litterer?

Could I have my political enemies killed by promising to pardon their killers?

Are there any checks and balances on the pardon other than term limits and re-election?

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    While an interesting question, your premise doesn't address the consequences of violating state laws. The president only has the authority to pardon offences against the United States. – Drunk Cynic Jan 4 '17 at 14:30
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    Also, not really an answer to your question, but I strongly suspect anyone abusing this to a really big extent would likely risk impeachment – user4012 Jan 4 '17 at 15:31
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    @endolith - my understanding is that impeachment does not have to fit a specific legal code crime, but I could be wrong. – user4012 Jan 4 '17 at 18:40
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    @user4012 - Yes Lincoln did it for any confederate soldier that was willing to take an oath of alliegance after the civil war. jimmy carter granted an amnesty to all persons who had unlawfully evaded the military draft during the vietnam war. How ever you can not pardon for future actions so the pardon would have to take place after you commited the crime – SoylentGray Jan 4 '17 at 19:28
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    Isn't this basically what Rodrigo Duterte is doing in his anti-drug trafficking campaign in the Philippines? – Sidney Jan 4 '17 at 21:47
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For instance, if I really hate littering, and I somehow become President of the United States, could I effectively make littering a capital offense by promising to immediately pardon anyone who kills a litterer?

First this could be considered incitement as noted in this answer. Should something as explicit as this happen I would expect that swift action by congress to prevent this kind of corruption and sullying of the office. But, no, there is nothing beyond basic human decency and nearly assured repercussions to prevent it. The presumption is anyone who invests the time and money to rise to this position of power is not going to throw it all away on something like this.

Lets look at an example that is more plausible. A president has a serious bias against non Christian persons of color. That president does not explicitly promise to pardon those who commit crimes against this class of people, but starts issuing daily pardons for white Christians arrested the day prior for those crimes. There is nothing that would prevent such a thing again beyond the fact that it would destroy their career, and probably get them impeached.

Could I have my political enemies killed by promising the pardon their killers?

Yes. Now the rub here is that your assassins have no incentive to keep their mouths shut about their actions once they are pardoned. So it is really not a great incentive to commit the crime on its own. Further while the assassin and their accomplices may be pardoned, the president would still be on the hook for the crime. And the now pardoned assassins could be off the hook by simply telling their story and complying with the investigation. Impeding the investigation or lying about the crime is likely to be the only thing that would trip them up.

If this were to come out I would expect not only that they would be impeached but that they would be arrested immediately pending criminal prosecution. While the pardon would likely be upheld it is not going to prevent the federal government from making the attempt to have the pardon annulled.

It is possible as soon as the conspiracy is revealed that the president could be arrested as well and prevented from issuing a pardon. While that detention and prevention may be later found to be illegal, it will not afford the now impeached and incarcerated former president to be able to issue those pardons retroactively.

Are there any checks and balances on the pardon other than term limits and re-election?

Yes abuse of the pardon could result in impeachment. Beyond that it has been affirmed multiple times that it is the authority of the president to issue pardons without the advice and consent of either the Supreme Court, or Congress.

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    The assassins have another incentive. Aside from not necessarily having a motive to kill, they also have to accept the risk that they won't actually be pardoned. That's a hefty risk. – indigochild Jan 4 '17 at 19:46
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    The example of litterers was probably rather poor and trivializes the otherwise interesting question. The more likely groups "litterers" was likely intended to stand for (and thereby make the question less inflammatory) are Muslims, trans people, black people, "drug users" (see: the Philippines), etc. – R.. Jan 4 '17 at 23:00
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    One item that is missing from this answer - almost all crimes are prosecuted at the state level, including murder. Sometimes there are crimes that fall into federal jurisdiction, or both. Presidential pardon power pertains to forgiving crimes as recognized under federal statute, so promising to pardon someone for murdering a litterbug would not stop state and local criminal justice processes from moving forward and punishing an offender. – PoloHoleSet Feb 10 '17 at 18:16
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    I've read differently. I'll try to find a link. Can you find some kind of confirmation for that? justice.gov/pardon/pardon-information-and-instructions "However, the President cannot pardon a state criminal offense." – PoloHoleSet Feb 13 '17 at 22:19
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    No, federal drug offenses, only. washingtonpost.com/world/national-security/… – PoloHoleSet Feb 14 '17 at 15:15
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The House of Representatives can only impeach the President for "treason, bribery, or other high crimes and misdemeanors." If the House wanted to (and they almost certainly would), they would probably impeach you as either an accessory to the crimes being committed, or even just for inciting the crimes (which is a crime). After all, whether or not a convict is eventually pardoned, he still committed a crime after effectively being told to do so by the President.

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    The House of Representatives has the power to impeach the President for any reason they see fit, and the Senate has the power to remove any President thus impeached, if enough members of each body favor such action. Nothing in the Constitution specifies any particular standard of proof that must be met, so if enough members of each body said they believed the President did something, no matter how ridiculous the evidence might be, there would be no basis for any court to overturn that judgment. Note that Congress might reasonably apply a lower standard of proof... – supercat Jan 4 '17 at 23:15
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    ...than would be applicable in a criminal case, since people are assigned the office of President for the benefit of the country, not the benefit of the people serving the position, and as such removal from office might not be viewed as a "punishment" akin to those meted out by criminal courts. – supercat Jan 4 '17 at 23:19
  • @supercat Officially, the House has to impeach in response to a crime, though impeachment is separate from prosecution for the crime itself and can be completed without the person actually being convicted. The rest of your comment is correct, but there are so many questions on this site (especially lately) that have to do with impeachment that it's pointless to explain the whole procedure on each one if they aren't specifically asking about it. – IllusiveBrian Jan 5 '17 at 2:06
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    If the House and Senate vote to impeach and remove the President, the President's term of office will be over no matter how baseless the action. If they vote against impeachment and/or removal, the President may continue in office no matter how severe the crime or how strong the evidence. The Constitution offers guidance about when the House and Senate should remove the President, but grants them ultimate authority to make the decision on whatever basis they see fit. – supercat Jan 5 '17 at 15:48
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    @IllusiveBrian That's incorrect. They can impeach in response to "high crimes and misdemeanors", which is not the same thing as "crimes". Just because the word is in there doesn't mean it has the same legal meaning. In fact, nothing in the constitution even defines what is meant by "high crimes and misdemeanors". You have to trace back the history of the term, which comes from (pre-)colonial British law, and effectively means "anything contrary to standard governance". An extremely broad standard, to say the least. – zibadawa timmy Jun 4 '17 at 23:41
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Constitutional Authority

U.S. Constitution, Article II, Section 2, Clause 1:

The President [...] shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment. [emphasis added]

Murder is (usually) a state crime. Not a federal crime. In other words, the crime of murder is enforced by the government of the individual state possessing jurisdiction. Murder prosecutions are generally not pursued by the federal government. In most states, governors have the authority to commute the sentence of convicted felons. But the President of the United States does not have that power as it relates to the states. The president can only grant Reprieves and Pardons for Offences against the United States — which does not include murder.

Specific Application

Therefore, the specific answers to your questions are as follows:

could I effectively make littering a capital offense by promising to immediately pardon anyone who kills a litterer?

No.

Could I have my political enemies killed by promising to pardon their killers?

No.

Are there any checks and balances on the pardon other than term limits and re-election?

Yes.

  • fyi: you don't need to delete duplicate questions. They improve site's searchability via Google. – user4012 Jan 30 '17 at 21:25
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    "Murder is a state crime" This is wrong. It is usually a state crime, but can be a federal crime, too, for example the murder of federal official, or murders that are related to federal crimes, such as bank robbery or drug crime. – sleske Aug 31 '17 at 7:45
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    @sleske - but there is no example of any kind of murder that would be exclusively a federal crime, and could not be prosecuted by the state where it happened. – PoloHoleSet Nov 27 '17 at 16:48
  • @PoloHoleSet: Murders within the District of Columbia are exclusively federal crimes, and cannot be prosecuted by any state (there is no "state where it happened"). – Kevin 12 hours ago
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Yes, and it's happened before

JFK pardoned basically the whole cohort of people convicted under the Narcotics Act of 1956, basically nullifying and overturning the law passed by Congress.

In the era following the 1950s, the pardon power evolved into a broader interpretation, eventually becoming a political tool. If a president feels that Congress has passed overly harsh penalties for breaking a law, he can use the pardon power to thwart the law. The best example of this is President John F. Kennedy's pardoning of those who were convicted of crimes under the Narcotics Act of 1956. Under this law, Congress passed harsh mandatory minimum sentences for drug offenses. As a result, a large number of first-time offenders found themselves in prison for five or more years. Kennedy pardoned these people, in effect overturning much of the law passed by Congress. Using the blanket pardon as Kennedy did allowed hundreds, if not thousands, to be released from prison. But all of these people were pardoned for the same offense.

JFK in effect nullified the law

  • the law was still in effect, except that he nullified its application to those individuals. other people could have been prosecuted under the same law during his time, or presidents after him could have executed the same law. – dannyf Jan 22 '17 at 14:35
  • selective enforcement of laws is not new. prosecutors at all levels do that, AGs do that. Most famously Holder stated to other AGs that they didn't have to execute laws if they disagree with it. The federal government doesn't execute many laws on paper, for example. – dannyf Jan 22 '17 at 14:37
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No. Or at least, not in any kind of comprehensive fashion. The main obstacle is that a presidential pardon has jurisdiction over FEDERAL crimes.

So any ability to nullify laws a president doesn't care for would have to be limited to federal offenses.

Killing a litterbug, to cite your example, would be prosecuted at a state level, so a president could not prevent that person from being punished for that crime.

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Could a US President abuse their pardon powers to unilaterally make laws?

No. by definition, pardoning is case specific and duration-limited -> it can only done by the sitting president. in contrast, laws are applied to all of us (in theory anyway) and go on indefinitely, until it is superseded or nullified.

Could I have my political enemies killed by promising to pardon their killers?

you could indeed. but it would be unwise for you and the person doing it for you. impeachment doesn't take a long time, and prosecuting a crime can take a long time. so your accompanies run the risk that before they get pardoned by you, you are thrown out of the office yourself.

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In general, a criminal law forbids someone from doing something. A pardon forgives someone who has been convicted of breaking a law. Therefore, use of pardons could, in theory, effectively nullify a law. But they couldn't make a new law, in the sense of forbidding a particular activity.

An Administration can also effectively nullify a law by refusing to prosecute anyone accused of breaking it. This has happened and can be extremely controversial; for a recent example, here is a story about a Trump reversal of an Obama nullification of portions of immigration law.

http://insider.foxnews.com/2017/09/05/daca-jonathan-turley-reacts-obama-made-law-executive-order-congress-didnt-pass

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