A follow-up to my earlier post about what O can and can’t do under Article II. One thing he can do, unambiguously, is pardon people — lots of people if he likes, just as Jimmy Carter pardoned many thousands of draft dodgers after Vietnam. He could also pardon people preemptively, before they’re charged, which is what Gerald Ford did for Richard Nixon. The obvious question, then: If O’s on firm ground constitutionally in using the pardon power, why doesn’t he explicitly frame his upcoming mega-amnesty for illegals as a pardon? Guy Benson and I spent a solid half-hour debating that this afternoon via e-mail and I figured some readers are also wondering. In fact, here’s Guy’s post on the subject, published a few hours ago at Townhall.

One potential obstacle to a pardon is the idea that an illegal’s ongoing presence in the U.S. is a continuing violation. You can pardon him for having been here already, but what about pardoning him again the day after the pardon issues, and the day after that, and so on? I think that’s less of a legal obstacle than a rhetorical one, though. Obama could issue an order declaring his intent to pardon any nonviolent offender served with an order of deportation now or in the future. That would be a cue to immigration officials not to bother trying to remove anyone. Mission accomplished.

A much bigger obstacle, via Gabe Malor, is that the pardon power simply doesn’t apply to immigration offenses. But don’t take his word for it. Here’s a tidbit from the DOJ’s own webpage on pardons:

For over 100 years, the President has relied on the Department of Justice, and particularly the Office of the Pardon Attorney, for assistance in the exercise of the executive clemency power granted to the President by Article II, Section 2 of the Constitution. Under the Constitution, the President’s clemency power extends only to federal criminal offenses.

Crossing the border illegally isn’t a criminal offense, notes Gabe. It’s a civil offense. The amnesty-friendly wonks at WaPo reluctantly made the same point back in 2011 when the thought of pardoning illegals was raised at the time:

In reality, the president does not possess this authority, as unauthorized presence in the U.S. is a civil violation, not a criminal one. Presidential pardon power only applies to federal crimes, described as “offenses against the United States” in the Constitution. As such, “a pardon can’t make someone a citizen or lawful resident,” explains John Harrison, a law professor at the University of Virginia. “Deportation is not a criminal proceeding, it’s a civil process that removes from the country someone who is not entitled to be here.”

Only Congress can change the terms for granting immigration status or citizenship, whether for all immigrants or a subset of people. And that’s why an immigration overhaul has stalled for so many years.

In normal times that would be enough to take this option off the table, but we don’t live in normal times or else we wouldn’t be gaming out how the president’s planning to unilaterally legalize five million farking people. 2014 is a world away from 2011; the president does all sorts of things nowadays that people used to think only Congress had the power to do. So, depending on how bold Obama’s feeling, he could note that the Constitution grants the president a pardon power for “offenses against the United States.” That’s been interpreted to mean criminal offenses only but I’ll bet if you asked a bunch of Republicans whether illegal border-crossing should qualify in the abstract as an “offense against the United States,” you’d get upwards of 90 percent saying yes. O could say, in announcing a mass pardon, “these people have committed an offense against the United States, but…” and then wait for the GOP to sue him over the fact that he’s trying to grant a pardon for a civil offense, not a criminal one. The politics of that could be dicey for Republicans — they’ll be demagogued as anti-Latino for opposing Obama’s order, naturally — and even if they file suit anyway, Obama would be fine with punting this issue to the Supreme Court. If they uphold precedent and declare that pardons don’t apply for civil offenses, that’s fine. The whole point of this amnesty ballet is to pander to Latino voters and he’ll have succeeded at that no matter what happens in court. If the four Democrats on the Court plus Anthony Kennedy go into the tank and decide that “offenses against the United States” include border-crossing after all, great. O will have set a bold new precedent in expansive executive authority.

One other nice thing for amnesty shills about a pardon for illegals is that it would change their legal status in a way that “prosecutorial discretion” might not. If O exercises his discretion not to have you deported, that doesn’t automatically mean you’re now legal; it just means the feds have better things to do than deport you right now. With a pardon, by contrast, your offense would be expunged. You’d be here in the U.S. and you’d be guilty of no offense; I’m not sure what that would make you technically — a permanent resident? an “unauthorized immigrant at sufferance” or something? — but you might be eligible to work now that you’re not facing any charges. And of course, the politics of issuing a pardon are much better for the White House than issuing “DACA II” or “parole-in-place” or whatever gassy argle-bargle Obama might end up choosing instead. If you’re going to pander to the left and to Latino voters, you might as well stick to a concept that everyone understands rather than some too-cute finessing of immigration law. I’m sure it’s what O would prefer to do — if he could. But ultimately, the precedent on pardons applying only to criminal offenses might be too much for him to gamble on this. He got smacked down 9-0 on recess appointments and he might well get smacked down 9-0 on this one, which would add credence to the GOP’s argument that he’s an executive run amok. Alas, his historic, unprecedented mega-amnesty will probably have to find a more prosaic vehicle. Too bad — if you’re going to drop the bomb, you might as well make it as many megatons as possible.