Can Obama Pardon Illegal Aliens?

President-elect Donald Trump has promised to end President Obama’s Deferred Action for Children of Aliens program (DACA).  As a result, advocacy groups have been calling on President Obama to pardon the approximately 750,000 applicants approved under DACA. According to the pro-illegal alien narrative, this would place the DACA applicants on a “path to citizenship.”

But there is a problem with this narrative: the pardon power doesn’t apply to civil offenses.  Although crimes are most often perpetrated upon individuals, criminal acts are considered to be offenses against the community as a whole. Criminals are prosecuted in the name of the government, e.g., State v. John Doe. And they are punished by imprisonment, in order to deter antisocial behavior.

Civil violations consist of behaviors that interfere with the administrative interests of the state. They typically include violations of building codes and the failure to maintain one’s property in a safe condition, and similar acts. Rather than punishing them with imprisonment, the state imposes fines to recover some of the expenses caused by the violation.

Article II, Section 2, Clause 1 of the Constitution is very clear that, “The President…shall have the Power to grant Reprieves and Pardons for Offences against the United States, except in cases of impeachment.” In other words, the president can pardon federal criminal offenses, but not civil violations. While Improper Entry by an Alien is a misdemeanor crime, unlawful presence in the United States is a civil violation. Therefore, a presidential pardon would erase the crime of illegally entering the United States but would have no effect on the civil offense of unlawfully remaining.

The presidential power to pardon derives from old English law. It served as a mechanism to restore the rights lost by a felon who, although guilty of a crime, had fallen prey to extenuating circumstances. It was not a tool for the king to willfully evade those laws he disliked. And such an abuse would likely have led to his overthrow.

Frustration with President Obama’s misuse of executive authority appears to have been one of the factors that caused American voters to elect Donald Trump president. Rather than compound his past errors with an “amnesty-by-pardon” scheme, President Obama should heed the will of the people and let the Trump administration sort out the mess caused by his illegal DACA policies.

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Matt O'Brien: Matthew J. O’Brien joined the Federation for American Immigration Reform (FAIR) in 2016. Matt is responsible for managing FAIR’s research activities. He also writes content for FAIR’s website and publications. Over the past twenty years he has held a wide variety of positions focusing on immigration issues, both in government and in the private sector. Immediately prior to joining FAIR Matt served as the Chief of the National Security Division (NSD) within the Fraud Detection and National Security Directorate (FDNS) at U.S. Citizenship and Immigration Services (USCIS), where he was responsible for formulating and implementing procedures to protect the legal immigration system from terrorists, foreign intelligence operatives, and other national security threats. He has also held positions as the Chief of the FDNS Policy and Program Development Unit, as the Chief of the FDNS EB-5 Division, as Assistant Chief Counsel with U.S. Immigration & Customs Enforcement, as a Senior Advisor to the Citizenship and Immigration Services Ombudsman, and as a District Adjudications Officer with the legacy Immigration & Naturalization Service. In addition, Matt has extensive experience as a private bar attorney. He holds a Bachelor of Arts in French from the Johns Hopkins University and a Juris Doctor from the University of Maine School of Law.