“The pardon is invalid and unconstitutional because it has the purpose and effect of eviscerating the judicial power to enforce constitutional rights.”
From an amicus brief filed with the trial court in the Arpaio case submitted by the MacArthur Justice Center at the Northwestern Pritzker School of Law. And, taking dead aim at Ex Parte Grossman:
A group of teachers, human rights lawyers, and legal scholars, in a brief filed by Erwin Chemerinsky, Michael Tigar, and Jane Tigar argues the pardon was unconstitutional as it exceeded the authority granted the president in the Constitution. The brief cites Madison, in Federalist 45, guaranteeing that the Constitution would renounce the “impious doctrine in the Old World, that the people were made for kings, not kings for the people.” Urging that there is a distinction between offenses prosecuted by the sovereign, which may be pardoned, and punishments imposed by courts to protect individual rights, they argue that Arpaio’s victims have a right—rooted in Article III of the Constitution—to have their claims adjudicated, and to receive a remedy enforced by a court. These scholars conclude:And back to what I've been saying, although with specific reference to the due process of laws, another brief notes:
"No President till now has proclaimed that a public official who violated the Constitution and flouted court orders was ‘doing his job.’ The purported pardon is an attempt to exercise a power that even the King of England did not possess in 1787."
If the President may employ his pardon power to relieve government officers of accountability and risk of penalty for defying injunctions imposed to enforce constitutional rights, that action will permanently impair the courts' authority and ability to protect those inalienable rights. The result would be an executive branch freed from the judicial scrutiny required to assure compliance with the dictates of the Bill of Rights and other constitutional safeguards.Now we just have to see if those ideas carry any weight in court.