[munk-a]

I think a congressional pardon power to allow national leniency on previously accepted sentences that are now viewed as unjust might be worth holding onto. It being such a casual presidential power has made it ripe for corruption for a long time but I would weigh that with civil rights era pardons for sham trials - I think we do still need a national sanity check relief valve for local injustices.

And the dysfunction of congress probably works in our favor here since pardons should be exceptional - not routine. A routine pardon is just a demonstration of the justice department failing at a systemic level.

[tshaddox]

> I think a congressional pardon power to allow national leniency on previously accepted sentences that are now viewed as unjust might be worth holding onto.

That sounds like a perfectly reasonable thing to do. For the branch of government in charge of making and changing laws.

[HaZeust]

It sounds more fit for the branch of government in charge of enforcing the laws. Specifically, with laws that are made by the branches responsible for making/changing them, which would be ridiculous on their face.

If the branch responsible for making and changing laws was also responsible for the reversion of enforcing those laws - effectively what a pardon is - then there's absolutely no check on gratuitous law being passed.

[tshaddox]

> If the branch responsible for making and changing laws was also responsible for the reversion of enforcing those laws - effectively what a pardon is - then there's absolutely no check on gratuitous law being passed.

I mean, it is a normal thing for a legislature to remove and amend old laws. That's not "a check," but it's a normal part of what it means to be a legislature. You're not just appending new laws, you're maintaining the entire set of laws.

And as for checks, judicial review is the obvious one.

[HaZeust]

Neither are steadfast. If we relied on either the Legislative or Judicial branch to take action granting cohesive resolve for Confederates post-Civil War - in lieu of Lincoln's 12/8/63 amnesties as a power vested to him through executive pardons, the Union would have collapsed. Outside of amnesty from Lincoln, it took the next acting branch - the Legislative - 7 years after Robert E. Lee's 1865 surrender for their actions regarding the Civil War to be seen (1872 Amnesty Act).

And, in the systematic event that a law is passed that is grotesque - from the legislative, or in the individual event that a miscarriage of law is applied to an individual case - from the judicial; we need a quick check and balance for either scenario - and the Executive branch is (typically, and on average) the fastest-acting branch of the 3. Lest, one bad-faith branch can reliably depend on its complementary power to be too slow to act (which is happening now, in many ways).

As a result, the executive needs to add tension for either event, and just "Legislative <-> Judicial" having checks against one another in relation to laws, and the judicial proceedings concerning the laws, is not enough.

[tshaddox]

It’s easy to focus on the exceptional cases and say we need “one more level” to be able to override all the other levels. But it’s not clear to me that this is a useful way to frame things. After all, what do you do if you’re “one more level” is the one that commits a miscarriage of justice? What if an executive pardons political or business friends simply for being friends?

[HaZeust]

Fair point. I am not asking for "one more level". The design already assumes parity. Each branch has a lever to counter the others - some faster than others, and none sits above the rest. Congress has laws, the purse (TBD), oversight, and impeachment. Courts can halt and review. The executive has veto, charging choices, and pardons that reach only federal crimes and never impeachment or civil liability. The whole point of this is when one of three branches misfire, the others answer through state cases, impeachment, elections, or new statutes.

The threat is lateral, not vertical. The system works by equal tension, not hierarchy.