I Was Not Happy About Trump's Pardon of Joe Arpaio, But This Court Challenge Seems Nuts

I can only guess that the article does a poor job of describing the plaintiffs' argument.  Because the argument that the pardon power impinges on the separation of powers, presumably because it voids a judicial ruling, would be true of any pardon in all of history.  The Constitution seems to be pretty open-ended in granting this power.  As much as it is heartening to see Democratic Congresspersons suddenly develop a concern about Constitutional limits on government power, this seems like a big waste of time and money.

A slate of congressional Democrats is asking a federal judge to invalidate former Sheriff Joe Arpaio's presidential pardon and move forward with sentencing.

Attorneys for 33 members of the U.S. House of Representatives aired their concerns in a "friend of the court" brief filed in federal court on Wednesday morning.

The brief argued that U.S. District Judge Susan Bolton should toss President Donald Trump's pardon of Arpaio, 85, in the interest of protecting the government's division of powers.

"The presidential pardon upon which that motion is based is an encroachment by the Executive on the independence of the Judiciary," the document stated. "The amici urge the Court to defend jealously against that encroachment as the framers intended."


  1. John O.:

    It is a waste of time but these guys want to have their cake and eat it too. Clear and concise constitutional principles are no longer in vogue because its what allows Trump to occupy the White House and everything that's happened since the 2000 election by the party of the enemy must be rectified by extraconstitutional means.

  2. Dan Wendlick:

    "...and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment...." US Constitution, Article II, Section 2.

    Now what does seem to be encroaching on the independence of the judiciary is using the color of public office to attempt to influence an ongoing court case, but who am I to judge.

  3. Craig Anderson:

    The left cares about limited government only when the Republican president does it, but not the democrat one. I didn't hear any of these people complaining about the pardons Obama issued.

  4. Jens Fiederer:

    It's not true that this "would be true of any pardon in all of history". Because this is specifically a punishment for contempt of court rather than the violation of a federal law, this would be true only of any pardon on a contempt of court case.

  5. The_Big_W:

    This crap is why I will not honor any laws/regulations from democrats in the future.

  6. dreck:

    The entire story shows just how tribal politics have become. The democrats had no problem with abuse of power while they were in charge, and a lot of folks called them out on it.

    Sadly, now we have a man with a history of demonstrated abuses of the law pardoned because he's one of us, so never mind he kicked the law and constitution and spat on it.


  7. Jaedo Drax:

    Ex Parte Grossman, 267 US 87 (1925) appears to be the controlling case law.

  8. Brian:

    Even worse, in this case he was found in contempt for not following a judicial order on his failed execution of the law. The Judiciary doesn't have any real power if it cannot compel the executive branch through judicial orders on how to execute the law.

    Let's suppose a member of the executive branch started jailing anyone who performs abortions (or owns a gun, or whatever example upsets you based off of your politics) and the court say you can't do that, the ONLY thing the court can do is declare the executive in contempt if they continue the behavior. If another member of the executive branch can just pardon the first one, this seems like much more of a separation of powers issue than if you pardon someone for a DUI.

    I still suspect this goes nowhere, but I also suspect that there are many lawyers out there who see this as troubling, regardless of their politics.

  9. BGThree:

    The separation of powers argument is that contempt of court is a power inherent to all courts. It exists because the judge must be able to control the litigants and maintain orderly proceedings. Again, it is an inherent power. It does not arise from the legislature or executive, or from the Constitution. In fact, the power predated the Constitution by hundreds of years. Without the power of contempt, the only way the judge could punish bad behavior in the courtroom is by making adverse rulings on the substantive merits of the case, but that contravenes the fundamental purpose of the judicial system: a fair and impartial resolution of disputes. If an attorney flaunts the judges rules or orders, it's better to fine the attorney or jail him for a night rather than deciding the case against his client.

    The Arpaio case is a step removed, because his incarceration was going to be for breaking a law that prohibits violating court orders. Although the judge could have used her contempt power to send Arpaio to jail until his office complied with the order, they didn't go that route. That would have been a much stronger case, even a likely winner. The actual case does implicate the same rationale, but to a much lesser degree.

    The best argument they actually have is to appeal to SCOTUS justices' bias in favor of judges and respect for the judicial system.

    , litigants would not respect the judge, would flaunt his orders, show up late, interrupt him, dogs would sleep with cats and is not sohat the judge can maintain of all courts. any court inherent very specific and narrow power that does not arise from the legislature or the Constitution sanction issued by the court (judge) for the purpose of , in the court's sole discretion, applying the court's own standsrfs

  10. Dan Wendlick:

    Please reread Article III. You will find that it nowhere mentions the word "contempt". It does, however contain the clause "The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority" So while there may be a statute that authorizes a judge to impose a criminal or civil penalty for contempt, that power is limited to the scope of the Constitution itself. The pardon clause of Article II, Section 2 makes exception to the pardon clause only for cases of impeachment. Again the work "contempt" is nowhere mentioned.

    The checks and balances against the abuse of the pardon power are the impeachment power and the political process. The point of the limitation of the power of the judiciary to the scope of the constitution and the written law is to prevent judges from making up offences from the bench.

  11. Peabody:

    Good point. This is also the first pardon of someone named Joe Arpaio. There are lots of historical firsts in this case.

    Of course these are all completely irrelevant to the President's Constitutional authority.

  12. Peabody:

    I fail to see how the judicial branch being impotent to forcibly stop illegal executive branch behavior is related.

  13. JoseM:

    What a silly argument they use. The constitution regulates how the three branches interact. When the Supreme Court invalidates a Congressional law, they are not violating the boundaries between the three branches, they are following the constitution regulating this interaction. Same with presidential pardons. How can educated lawyers produce such nonsense?

  14. SamWah:

    Repeal the Marc Rich pardon!

  15. The_Big_W:

    So a president could pardon murder, but not contempt of court because, issues. Got it...

  16. Brian:

    I don't see why contempt not being mentioned changes the issue. While I think that you are basically right, the concern I am addressing is that this is basically an end run around the judiciary's only real check on the executive branch. The judiciary branch can declare something an executive does is illegal.... and that's it. I think this is pretty clearly in the president's power, but that doesn't change the fact that this is more of a separation of powers case than your average pardon.

    If the average pardon is a 4/10 on the "Separation of Powers is at Issue" scale, then maybe this is a 6? That's my only point.

  17. mlhouse:

    "Finally, it is urged that criminal contempts should not be held within the pardoning power because it will tend to destroy the independence of the judiciary and violate the primary constitutional principle of a separation of the legislative, executive and judicial powers. This argument influenced the two district judges below. (1 Fed.2d 941.) The Circuit Court of Appeals of the Eighth Circuit sustained it in a discussion, though not necessary to the case, in In re Nevitt, 117 Fed. 448. The Supreme Court of Wisconsin, by a majority, upheld it in State ex rel. Rodd v. Verage, 177 Wis., 295, in remarks which were also obiter. Taylor v. Goodrich, 25 Texas Civil App. 109, is the only direct authority, and that deals with a clause a little differently worded. The opposite conclusion was reached in In re Mullee, 7 Blatchford, 23; Ex parte Hickey, 12 Miss. 751; Louisiana v. Sauvinet, 24 La.Ann. 119; Sharp v. State, 102 Tenn. 9; State v. Magee Publishing Company, 29 New Mexico 455.

    The Federal Constitution nowhere expressly declares that the three branches of the Government shall be kept separate and independent. All legislative powers are vested in a Congress. The executive power is vested in a President. The judicial power is vested in one Supreme Court and in such inferior courts as Congress may from time to time establish. The Judges are given life tenure and a compensation that may not be diminished during their continuance in office, with the evident purpose of securing them and their courts an independence of Congress and the Executive. Complete independence and separation between the three branches, however, are not attained, or intended, as other provisions of the Constitution and the normal operation of government under it"

    Ex Parte Grossman...this has been reviewed by the Supreme Court, and rejected. MOVE ON.

  18. me:

    And the right only cares about limited government or abuses of power when a Democrat president does it. Your point being?

  19. mesaeconoguy:

    This was not a challenge, per se, but an amicus curiae (friend of the court) brief filed with the presiding judge in the case.

    The judge has no power to influence a presidential pardon, and Trump’s pardon ended the case against Arpaio.

    The purpose of the brief is thus unclear, other than an exercise in frivolous writing.

  20. Rick Caird:

    You either have the power to pardon or you don't. It is not constrained by the wishes of Democratic congressman