On July 22, 2016, the Virginia Supreme Court struck down a series of executive orders issued by Governor Terry McAuliffe restoring voting and other civil rights to more than 200,000 convicted individuals.  See Howell v. McAuliffe (Va. 2016).  The court, in a 4-to-3 decision, disputed the governor’s assertion that his restoration power was absolute under the state’s Constitution. “We respectfully disagree,” the majority justices wrote. “The clemency power may be broad, but it is not absolute.”   Governor McAuliffe responded to the court’s action by promising to restore the vote on an individual basis to everyone affected by his orders, starting with the 13,000 who had already registered to vote.  More details of the reaction to the court’s ruling are reported here.

The Virginia court’s decision is interesting for what it may tell us about the possibility of class-wide grants of clemency, whether full pardon or sentence commutation, under the president’s pardon power. In finding limits on the governor’s restoration power under the Virginia constitution, the court relied upon two other constitutional provisions that have no analogue in the U.S. Constitution.

In limiting the so-called “Restoration Clause” of the Virginia Constitution, the court relied primarily on its “Suspension Clause,” which prohibits suspension of laws by the executive.

All agree that the Governor can use his clemency powers to mitigate a general rule of law on a case-by-case basis. But that truism does not mean he can effectively rewrite the general rule of law and replace it with a categorical exception. The express power to make exceptions to a general rule of law does not confer an implied power to change the general rule itself. The unprecedented scope, magnitude, and categorical nature of Governor McAuliffe’s Executive Order crosses that forbidden line.

The court also noted the apparent inconsistency between a blanket class-wide restoration and the requirement, also in the state constitution, that the governor report annually to the legislature on each individual grant.  In this regard, the court noted that the only Virginia governors who have in the past seriously considered blanket restoration (including Hillary Clinton’s choice for Vice President Tim Kaine) concluded that they did not have the power to dispense with disenfranchisement on any but a case-by-case basis.

All of the dissenting justices would have rejected the suit on standing grounds, while two also thought the Restoration Clause trumped the Suspension Clause.

The U.S. Constitution contains nothing analogous to Virginia’s Suspension Clause, and no requirement that the president report to Congress on his pardons.  Indeed, the Article II pardon power has always been thought unlimited.  That said, no president has ever sought to restore rights to convicted individuals, or commute prison sentences, on a blanket basis. The closest thing is President Jimmy Carter’s blanket amnesty to Vietnam draft evaders, and even in that case only a small percentage of those covered by the amnesty had been convicted.  Moreover, any convicted individual who wished to claim coverage under the Carter order was required to have his eligibility certified by the Pardon Attorney in the Justice Department.  That looks a lot like the sort of case-by-case procedure that had been followed by the Ford Clemency Board several years before.

All other large-scale federal clemency grants to convicted individuals, including post-war grants by Presidents Theodore Roosevelt (Philippine Insurrection), Harding (World War I), and Truman (World War II and Korean War), and Ford (Vietnam War) were on a case-by-case basis.  Class-wide amnesties (such as those issued by President Washington to the Whiskey Rebels, by President Madison to deserters during the War of 1812, by Presidents Lincoln and Johnson during and after the Civil War, and by Presidents Harrison and Cleveland to Mormon bigamists when Utah became a state) all applied to individuals who had not yet been convicted.

In short, quite apart from the political and practical problems involved with using the pardon power to restore civil rights or reduce prison sentences automatically to an entire class of individuals, there seems to be little historical foundation for proposals that President Obama do so.  That said, there may be presidential actions short of a full and unconditional grant of clemency that would allow quicker favorable action on the thousands of petitions that are presently pending in the Justice Department.  That possibility will be the subject of another piece in this space.