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In the US, as in many modern countries, we have a presidential pardon. However, we also have many state government pardons.

The constitution states

and he shall have Power to Grant Reprieves and Pardons for Offenses against the United States

However, according to the US DoJ, he cannot pardon a state offense.

However, the President cannot pardon a state criminal offense.

This doesn't seem clear to me. Wouldn't any offense against any state be an offense against the United States? Isn't that the whole point of being united?

I can't seem to find any supreme court ruling on the matter.

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  • It seems intuitively completely obvious, but I'm sure there's a good legal answer somewhere
    – user4012
    Commented Dec 7, 2012 at 19:46
  • I'm not sure it's so intuitive even: if a crime is committed in a given country, why can the executive of that country not pardon the criminal?
    – corsiKa
    Commented Dec 7, 2012 at 19:49
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    I think the reason this might not be intuitive for some is the assumption that our Government is based on a hierarchical system where the State Governments are subservient to the Federal Government. It's much more complex than that.
    – JohnFx
    Commented Dec 19, 2012 at 3:26
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    @CramerTV they don't overlap at all. Some acts may constitute crimes in both state and federal law, but each state's body of criminal law is entirely distinct from the federal criminal code.
    – phoog
    Commented Feb 20, 2020 at 20:44
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    @phoog That is what CramerTV was referencing. The overlap is in the act being a crime in both state and federal, and that some acts may be a crime in one but not the other. A perfect example of laws from states that don't translate to federal crimes are driving laws. There are no federal driving laws. All driving crimes are state or municipal.
    – David S
    Commented Jan 7, 2022 at 17:58

4 Answers 4

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Look throughout the Constitution for a better understanding of the difference in the lexicon used to refer to the United States as a single entity, the several States of which the United States is composed, and individual States.

When the Constitution references the whole of the United States, and the Federal Government the document constructed, it just says "the United States."

When the Constitution refers to the States that constitute the United States, it says "several States."

When the Constitution refers to a particular State, the language is "the States," "particular States," "respective States."

For further understanding, consider the nature of the States during the ratification period. They were stronger sovereign entities, where the Constitution was carefully constructed to avoid usurping excessive authority from the States into the Federal Government. Why would the leadership of the States accept a document that empowered the national government to exercise authority over state laws?

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  • Your answer is correct. I think it is important to add the "stick" that the federal government holds over state government. Most of it derives from the "interstate commerce" clause. That thing has been used to justify so many bad laws. Commented Dec 6, 2018 at 14:47
  • @FrankCedeno While I have an extensive grievance with the expansive approach to the Interstate Commerce clause since Ratification, that would not be on topic for this question. I'm building a separate question, which I'll likely answer myself, on how the Interstate Commerce clause has evolved. Commented Dec 6, 2018 at 14:56
  • @DrunkCynic I believe this answer fails to actually answer the question. It does correctly establish the target of the clause, but not answer on how that prevents the pardon power from extending to the state or local laws. I believe the question is hinging on the concept of supremacy clauses of federal law trumping local laws.
    – David S
    Commented Dec 6, 2018 at 18:28
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    This answer delineates how the Federal Government of the United States, and various subsets of the same, are addressed by the Constitution, through an examination of the "original text" as detailed in the question. It is a repudiation of the question's premise, addressing "Based on the original text, why would the President not have the power to pardon ANY crime against ANY STATE? The text reads "against the United States". Are the various States not part of the United States?" While the question asks about the reach of the president, the root problem is Constitutional understanding. Commented Dec 6, 2018 at 18:52
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In the U.S. is bound by constitutional law to only allow the President to issue federal pardons, per Article II, Section 2, para 1:

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

The key words here are Offences against the United States, which is only the Federal level. It is prevented from going further because the 10th amendment states:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

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    The crux of the question is where is it defined that a crime against one state is not a crime against the United States? Consider for example if one state was attacked by a foreign nation: it's not like the other states would be like "Wow, sure sucks to be you"
    – corsiKa
    Commented Dec 8, 2012 at 3:04
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    @corsiKa - It's not a crime to attack a foreign nation - by definition, one country's laws don't apply to other countries. But if it's against the law to do something in Maryland, but legal in California, then it's a crime against the State of Maryland if you do it there. It's definitely not a crime against California, so how could it be a crime against the United States as a whole?
    – Bobson
    Commented Oct 4, 2013 at 13:11
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    @Bobson I disagree with that line of thinking. Let's say I have two children. One likes playing tackle football, the other likes playing piano. If you tackle my football player, I don't mind - he likes it. If you tackle my piano player, you've really pissed me off as a dad, and I'll be talking to your parents.
    – corsiKa
    Commented Oct 4, 2013 at 14:49
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    @corsiKa, the final paragraph is the answer to the question. States have laws that do not break federal laws. It's that simple. For example, there are counties in several states that make it illegal to sell or buy alcoholic beverages at all. There are also some that forbid it on Sundays. Those laws are not Federal laws because the Feds don't care if you buy or sell alcohol so long as you are old enough. But some residents in those places decided it should be illegal. Since alcohol sales isn't regulated at the federal level the states and counties can make those laws if they want to.
    – CramerTV
    Commented Dec 8, 2018 at 1:21
  • Double down, I think until fairly recently the "federal law" was 18 for drinking, though most states required 21+
    – Kevin Peno
    Commented Sep 30, 2019 at 3:13
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The founders' interpretation of the relationship of the states to the federal government was a confederation of semi-autonomous states: pool resources for some things (defense, interstate transport), but maintain internal sovereignty for others (laws, norms). They weren't looking to make a strong head executive, more of a manager or middleman. So to allow the president to meddle in the politics and laws of individual states (unless it was as mediator between two states) would have been anathema.

To drive this point home, they created the 10th Amendment: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." So if there's any doubt whatsoever about whose job it is, it isn't the president's job.

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OK think this way:

Article VI, Paragraph 2 of the U.S. Constitution is commonly referred to as the Supremacy Clause. It establishes that the federal constitution, and federal law generally, take precedence over state laws, and even state constitutions. It prohibits states from interfering with the federal government's exercise of its constitutional powers, and from assuming any functions that are exclusively entrusted to the federal government. It does not, however, allow the federal government to review or veto state laws before they take effect.

Article IV, Section 1:

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

Article IV, Section 1 of the United States Constitution, known as the "Full Faith and Credit Clause", addresses the duties that states within the United States have to respect the "public acts, records, and judicial proceedings of every other state." According to the Supreme Court, there is a difference between the credit owed to laws (i.e. legislative measures and common law) as compared to the credit owed to judgments.[1] Judgments are generally entitled to greater respect than laws, in other states.[2] At present, it is widely agreed that this Clause of the Constitution has little impact on a court's choice of law decision,[3] although this Clause of the Constitution was once interpreted differently

Here is why a President may pardon a state crime. A pardon is an executive order addressing a judicial conviction of a person or corporation and that executive order restores both State and Federal constitutional rights and privileges that had been striped of the individual or corporation. For instance John is convicted of a felony in Florida but now resides in Missouri, and operates a business in Kansas. As a result of his Florida conviction he is stripped of certain rights in Florida, Missouri, and and Kansas. i.e. he owns a restaurant and wants to get a liquor license in Kansas. Now in most states John could get a pardon in a sister state (Kansas or Missouri) and pursuant to the full faith and credit clause it would apply everywhere including federal rights. Because his federal rights are impinged by a Florida conviction a federal pardon would be warranted.

The DOJ opinion that a President can't issue a pardon for state crimes serves the DOJ well as it doesn't have to process tens of thousands of pardon applications and it is based upon a bad interpretation of the Hatch Act.

The Hatch Act of 1939, officially An Act to Prevent Pernicious Political Activities, is a United States federal law whose main provision prohibits employees in the executive branch of the federal government, except the president, vice-president, and certain designated high-level officials,[1] from engaging in some forms of political activity. It went into law on August 2, 1939. The law was named for Senator Carl Hatch of New Mexico. It was most recently amended in 2012

What the DOJ asserted is that restoration of the right to vote is a political act, and while the President might issue a pardon sua ponte but government employees were prohibited from work on the pardon including investigating, reading and filing recommendations, searching official records and typing the document.

So if a President really wants to pardon someone for a crime in NY State he can type it on his PC, print it and sign it

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  • I don't understand - if the Hatch Act is from 1939, then are you suggesting that that before 1939 they didn't know whether or not the president could pardon state crimes? Keep in mind, my question is from 2012 and has absolutely no connecting to the current political climate. I mean, current events may make it relevant, but it wasn't inspired by it.
    – corsiKa
    Commented Dec 8, 2018 at 1:11
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    Nice answer, and welcome. I notice also that Snopes classifies as accurate the assertion that the Supreme Court might significantly increase the scope of presidential pardon powers. snopes.com/fact-check/trump-gamble-court-case Commented Dec 8, 2018 at 3:47
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    Reviewing the text of the Hatch act, it seems the exceptions are broad enough that the president wouldn't have to type it up himself. The White House Counsel for example seems excluded from the Hatch Act, and according to CNN the new incoming counsel is expected to hire around two dozen lawyers in the short term. Commented Dec 8, 2018 at 4:22
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    I would add one thing to this answer, which is the motivation behind the reason the laws are written the way they were. Back when the constitution was run the individual states thought of themselves as states first, USA citizens second. They envisioned the federal government being weaker then it is now and explicitly did not want to give away their highly prized state powers to the federal government. Effectively they didn't want to give up the right to their own legal system by allowing a president to pardon anyone found guilty of a law he didn't like.
    – dsollen
    Commented Aug 30, 2019 at 15:27

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