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Date: May 2021
From: Notre Dame Law Review(Vol. 96, Issue 5)
Publisher: University of Notre Dame Law School
Document Type: Article
Length: 11,861 words
Lexile Measure: 1940L

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It is emphatically the province and duty of the judicial department to say what the law is. --Chief Justice John Marshall (1)


The judicial and executive branches have struggled to define the limits of their power--with the Executive often overstepping its authority and the Judiciary attempting to reign in the Executive--since the Founding of the United States. (2) Perhaps the most famous--and earliest--example of the judicial and executive branches attempting to determine where one branch's power ended and the other's began occurred on February 24, 1803, when Chief Justice John Marshall announced that the federal courts not only have the power to declare legislative and executive acts unconstitutional, but that it is the Court's duty to do so. (3) Notwithstanding a federal court's duty to "say what the law is," (4) the Executive necessarily retains the authority to take some action that the courts cannot question. However, the line where executive authority ends and judicial scrutiny begins can often be blurry. Despite the seemingly clear language in the Constitution regarding executive clemency, (5) the President's authority to commute an inmate's sentence in a way that forecloses further judicial proceedings is one of the most recent issues in the case of judicial autonomy v. executive authority.

The authority of an executive to commute a criminal sentence existed long before the formation of the United States, and it endures under the Constitution today. (6) For example, the July 2020 commutation of President Trump's longtime friend and campaign advisor Roger Stone (7) thrust acts of executive clemency back into the limelight after being unnoticeably absent for over a year since the last time President Trump made headlines for an act of clemency. (8) Donald Trump is by no means the only President to make headlines for his commutations. The Fair Sentencing Act (FSA), signed into law by President Obama, resulted in more acts of clemency in a single day than occurred under the previous seven Presidents combined. (9) These commutations generated a maelstrom of media attention in which Obama was dubbed the "Commuter in Chief." (10) Additionally, similar to President Trump's obviously political commutation of Roger Stone's sentence," President Bill Clinton waited until the end of his second term to provide clemency for Marc Rich, whose "primary qualification for [clemency] appeared to be that his wife had donated large sums of money to Democratic Party causes." (12) While some of these clemency acts are more overtly political than others, it is clear that political considerations play an increasing role in determining who receives clemency and the specifics of the clemency act. (13)

Executive clemency is not often the topic of political discussion in America. In fact, outside the walls of the Justice Department, it may be discussed rarely, if at all. (14) That is, until there is an act of clemency. Then, the public, the media, and politicians discuss, debate, and disagree about clemency for weeks. (15) Although clemency is not at the forefront of the minds of the American people most...

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Gale Document Number: GALE|A666682360