While presidential pardons are not unique to the US, these pardons tend to happen at the end of a presidential term due to potential ramifications (Roosevelt). Hence, as President Biden is leaving office, we have the opportunity to see how this power is being exercised. Controversially, Biden decided to pardon his son despite initially saying he would not do so.

While Biden has the ability to issue presidential pardons, when this ability is used to pardon family members then it raises questions on if this power extends beyond what Presidents should be able to do. Should Presidents have the ability to pardon their family members for their crimes?

Royal Prerogative

This power is reminiscent of the British royal prerogative and does in fact come from the UK (Roosevelt). Considering the US is not a monarchy, it feels odd that the President has this power. Nevertheless, as they are both Heads of State, it makes sense for the power to be with the President more than anyone else.

However, the royal prerogative exists because the Crown had arbitrary authority through their supreme power and this is not true for the US. Hence, it seems odd for the President to be exercising the same power that the Crown in the UK does. Law travels and the US was a British colony which is likely why the British royal prerogative was used to form the American presidential pardon. Nevertheless, as this is a power that resides solely within the President, it seems open to exploitation.

Constraints on Pardon Power

It appears to be a barrier to justice if the President has the capacity to pardon whomever he would like.

However, the power is apparently not limitless. For instance, the Supreme Court has said that the pardon power is to be exercised in the public interest (Tudor and Florence). That justification seems weak when looking at pardoning family members, but if Biden’s son was unfairly targeted then there could be public interest reasons to pardon him.

Moreover, there are constitutional constraints on pardon power. This means that Presidents cannot be above the law- which is important when considering the source of the law and its implication in a democratic context- and that it cannot be used to obstruct justice as that would be criminal and unlawful (Tudor and Florence). Understanding that this power has its constraints is reassuring because it means that the President does not have unlimited power.

Benefits of Pardon Power

There are benefits to having a President with pardon power. The idea behind it was to prevent miscarriages of justice, to allow acts of mercy, and to help society move forward in politically charged cases (Roosevelt). In cases like military personnel and veterans being convicted for offences based on their sexual orientation, it makes sense for Biden to be able to pardon them (FitzGerald). Biden was not going against the laws of the land, he was merely pardoning those convicted under a now repealed law.

Preemptive Pardons

An interesting aspect of pardon power is the ability to grant preemptive pardons. This is what President Ford issued to President Nixon for Watergate. Nixon was never charged with anything, but Ford still pardoned him (Arnold). Similarly, Biden considered preemptively pardoning critics of Trump as Trump has suggested that he will prosecute them. However, there are worries that this would be contrary to what pardon power was intended for: acts of mercy and defusing societal tensions (Hutchinson).

Moreover, in Burdick v. United States, the Court ruled that accepting a pardon is an admission of guilt (NCC Staff). If these critics have done nothing wrong, they may not want to accept the pardons if it may mean that they have to accept that they were also guilty of the offence.

In conclusion, while pardon power may be quite broad, it still has its limits and it is quite reassuring that there are checks on how this power is exercised as it prevents exploitation of it in theory. I think that there are benefits to a president having this power and this is evidenced in history. I also feel it is quite natural to be skeptical when this type of power is used to benefit immediate family members, but I would like to believe that if President Biden did overstep his bounds then there would be measures taken to react to the abuse of power.