In response to my piece on President Biden’s sweeping pardon of Americans who have been convicted of marijuana possession, a few people have asked me whether it would have been acceptable for President Biden to make this move if he believed that the law in question was unconstitutional.
This is an interesting question, with a complex answer. It’s also irrelevant to this case. Not only did Joe Biden spend his entire career in the Senate writing and voting for federal drug prohibition laws like the one he apparently now disdains, he strongly favors the expansive reading of the Interstate Commerce Clause that is necessary for such laws to be passed by Congress in the first place. As Biden made abundantly clear in his announcement, he is not arguing that the law in question is unconstitutional; he is arguing that it’s a bad idea.
Some of the people who have asked me this question have pointed to Thomas Jefferson, who pardoned many of the people who were convicted under the 1798 Sedition Act, and to Warren Harding, who pardoned many of the people who were convicted under the 1918 Sedition Act. (Maybe we should stop passing Sedition Acts?) But these examples are imperfect, because, (a) they weren’t blanket pardons, and (b) as with the Jimmy Carter case I mentioned in my piece, both came after the laws in question had been repealed (or allowed to expire) by Congress. The 1798 Sedition Act sunsetted the day before Jefferson became president, and the 1918 Sedition Act was repealed in December 1920, before Harding came into office. As such, there existed no real tension between the pardon power and the imperative to “take Care that the Laws be faithfully executed.”
Jefferson is an interesting case. In explaining his pardons, he did, indeed, make a case against judicial supremacy — writing that “the executive, believing the law to be unconstitutional, was bound to remit the execution of it, because that power has been confided to them by the Constitution.” He also co-wrote the Virginia and Kentucky Resolutions, which made the case for the nullification of federal laws that the states considered illegal. As historical arguments, these ideas are worthy of consideration, but I . . . er, doubt that they will be invoked any time soon by — or in defense of — President Biden or his broader political movement, and, as such, they don’t seem likely candidates for his defense.