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.
That sounds like a perfectly reasonable thing to do. For the branch of government in charge of making and changing laws.
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.
The Department of Justice is subordinate to the President as part of the executive branch with or without the pardon power; if you want something other than "the President overrides the Department of Justice" as a matter of Constitutional law rather than an intermittently-observed convention of restraint (which Trump absolutely has not observed outside of the pardon power), you need a fundamental reformation of the Constitutional structure of government, far beyond the elimination of the pardon power.
The Supreme Court has repeatedly affirmed that while the President may remove executive officers, he cannot lawfully direct them to commit acts that are unconstitutional, obstruct justice, or violate statutory mandates. The constitutional structure also relies on normative independence - a separation within the executive branch that maintains rule of law. This is not a “convention of restraint” but an operational necessity derived from the Take Care Clause (“he shall take Care that the Laws be faithfully executed”). That clause doesn’t mean “whatever the President says is law”; it means the President must ensure that the law itself is enforced faithfully, even when doing so constrains his own interests.
Finally, while the pardon power is broad, it’s not the linchpin of executive authority over the DOJ. Removing or limiting that power wouldn’t change the fact that the DOJ’s prosecutorial discretion must still be exercised consistent with law, ethics, and constitutional constraints - not simply the President’s personal preferences. Our system is not designed for a monarch with “absolute control” over prosecutions. It’s designed for a chief executive bound by law and accountable through oversight, impeachment, and ultimately, the electorate.
The idea of the republic as opposed to a monarchy is that no part of the government is anyone's personal...well, anything...but that doesn't really negate the degree of control the President exercises, both in theory and in practice barring highly variable personal restraint, over the DoJ.
> The Supreme Court has repeatedly affirmed that while the President may remove executive officers, he cannot lawfully direct them to commit acts that are unconstitutional, obstruct justice, or violate statutory mandates.
That doesn't mean the President doesn't override the DoJ, it means the President doesn't override the law.
> The constitutional structure also relies on normative independence - a separation within the executive branch that maintains rule of law.
Yes, that it relies on this but does not actually provide any mechanism by which it can effectively be assured is the fundamental design issue I am referring to being necessary to address if one wants "the President overrides the DoJ" not to be a simple fact independently of whether or not the pardon power exists and is vested in the President's discretion.
> Finally, while the pardon power is broad, it’s not the linchpin of executive authority over the DOJ.
I literally said that the pardon power is irrelevant to that, which is the exact opposite of describing it as the lynchpin.
> Removing or limiting that power wouldn’t change the fact that the DOJ’s prosecutorial discretion must still be exercised consistent with law, ethics, and constitutional constraints - not simply the President’s personal preferences.
To the extent that is true, that is only a negative constraint on prosecution applied by the courts, it can never compel a prosecution that the executive has declined. (Congress, of course, could punish the President for preventing prosecutions, via the impeachment power, but that’s hardly a substitute for real independence from the President of all or part of the prosecutorial power if that is what is desired. Or, for that matter, much of a remedy at all if more than 1/3 of the Senate is on board with the President's conduct.
1. The ability to dismiss the Attorney General at will (alternative: Congress)
2. The ability to pardon at will (alternative: Congress)
Remove those two Presidential powers, and the DoJ becomes much more independent.
Imho, the DoJ side of the judiciary branch is important enough to the separation of powers that this should have been done a long time ago.
