The U.S. will soon be governed by a president who banked his campaign on vilifying Muslims and undocumented immigrants and on promising to maintain the devalued legal status of Black lives. The next two months are a crucial time when the nation’s progressive movements should feel ever more compelled not to lose sight of the Constitutional power that is still afforded to President Obama, a man who could not have won the 2012 election without the votes of U.S. progressives.
I’m talking about the power of the pardon, the final executive branch check on the legislative and judicial branches, which over the years have passed laws and interpreted them through a white-supremacist, capital-supremacist lens. According to Article 2 Section 2, it is constitutionally possible for Obama to issue “reprieves and pardons” to all people, whether in jail or not, facing charges or not, who up to this point in time may have committed a federal offense.
At the very least, Obama owes his electorate an immediate blanket pardon to all people who may have committed nonviolent federal drug offenses, and— to borrow an idea of Peter L. Markowitz published in the New York Times last July— to all immigrants who may not have used an official port of entry. He ought to be spending the greater chunk of every remaining day of his term on the task of reexamining the cases of all still remaining federal prisoners, probationers, and parolees who might have had trials tainted by racial, religious, or other bias. (And let’s not forget those already released from federal supervision only to face challenges getting jobs, housing, voting access.)
After releasing all prisoners covered under the blanket pardons, Obama may need to appoint a commission to sift through perhaps another quarter of a million cases, but the final decision on any pardon has to come from Obama himself. Upon examination of each case he should decide whether to issue a pardon in the interest of true justice. Admittedly, these subjective judgment calls would be very subjective, but they are calls he was democratically elected to exercise.
Despite eight or more years of trying to figure out what Obama’s personal opinions really are, we still don’t know for sure that his heart is in such an undertaking. The same man who for good reason is nicknamed the “Deporter-in-Chief” has also used executive power to shield immigrants, albeit only narrow categories of immigrants and only temporarily. It will take a national movement of pressure to bear upon Obama; either to give him the courage to act, or to politically force these steps on a legacy standpoint.
He will have no more excuses for not acting. With his time on the clock running out, Congress can hardly punish him with impeachment at this point. Likewise, there will be no incoming Democratic President or house of Congress to receive political fallout from conservatives. There is no Supreme Court review. There is no Constitutional power for President Trump to annul a former president’s pardons. He and the dual Republican Congress cannot pass a “Bill of Attainder” to re-arrest or arrest for the first time any of the people protected under pardon, and Trump and his supporters will only be able to legally exact their vengeance on people who allegedly breach a federal law after the date of the pardon.
Can Obama and the Democratic Party get away with maintaining the status quo when they literally have this particular power in their hands and absolutely nothing to lose? Unfortunately the answer is yes— but only if progressives remain silent and do nothing to advocate this possible course of action that would improve, even save, the lives of millions.
Thousands of people took to the streets after the election, infuriated that a candidate who panders a fascistic worldview was elected president. It is important that the protests not dissipate, and I think the energy could be sustained if it evolves towards taking dignified stands on various concrete issues. I think progressives ought to make a demand for President Obama to administer poetic justice— a waterfall of pardons that would vigorously repudiate the xenophobic philosophy that narrowly gave Trump his win. It is now a make-or-break moment.