Short answer: Nope. Longer answer: Tom Cotton already knows the short answer. He’s actually asking two other questions. One is a long national conversation that has also been a long time coming — and the other a question that should have been coming for at least the last five months.
Cotton actually broaches the latter in his tweet about Joe Biden’s decision to commute the death sentences of 37 Death Row convicts. “Who is making these decisions,” Senator Cotton asks, “and signing for “Joe Biden”?” This is the question that everyone should have been asking since the Easter Bunny ordered the Leader of the Free Frickin’ World off a White House rope line in April 2022. The debate on June 27 made Biden’s incompetency obvious and the question of power-wielding acute, but for some reason, members of Congress have not been interested in getting answers to it — even when Democrats are admitting that Biden’s been non compos mentis for a while.
So why only now, after ‘Biden’ is issuing manipulative and despicable clemency actions, is this question getting seriously asked?
Contracts, wills, and other legal actions are null and void if a party is mentally incompetent, as Joe Biden obviously is. The Congress and the Trump Department of Justice should investigate whether these pardons for depraved murderers are binding.
Who is making these decisions…
— Tom Cotton (@SenTomCotton) December 23, 2024
The better question is this: Why has Congress not acted to deal with the cognitive incompetence of the president? Biden’s decline is not a secret; the evidence has been out in the open for the last few years. His staff has conspired to cover up Biden’s infirmity, as have Democrat officeholders including and especially Vice President Kamala Harris. The 25th Amendment has a process for dealing with such an exigency, after all. Even though the Constitution formally requires the VP and Cabinet officials to initiate such a finding, Congress can certainly force the issue by demanding testimony on the crisis, either in camera or publicly.
Had Congress taken action at any time, but especially after June 27, we might already know who’s making the decisions. We might also know who has participated in this massive fraud on the American electorate. Had Congress taken its constitutional role seriously, Joe Biden wouldn’t be in position to pardon the family bagman or commute the sentences of only certain vicious murderers on federal Death Row.
Thanks to this failure, no one has adjudicated Biden incompetent yet. That means he retains full authority to issue clemency actions, which are an exercise of plenary authority invested in presidents by Article II, Section 2. They are not subject to review or reversal, nor are they impacted by future impeachment or removal actions. (Nor do they have anything to do with contract law, as Cotton should know, which involves peer-to-peer transactions rather than constitutional authority.) The only check on this power is to have voters ensure that the character of the presidents they elect will not abuse this authority, and … well, we’ve seen how that has worked out the last few weeks. But that isn’t new either; Bill Clinton’s pardon of Democrat donor Marc Rich while a fugitive from prosecution shocked consciences in 2001.
That prompted a debate on whether presidents should be trusted with this plenary power, and Biden’s clemency actions (or whoever’s holding his strings) makes it particularly acute now. Merely trusting presidents with this power in the absence of checks against abuse does not work. So what can we do to protect against such abuses in the future?
The only option would be to amend the Constitution to provide checks and oversight on clemency actions. Statutes alone would not be sufficient to overcome Article II, Section 2, which does exist for a salutary purpose. Even the best of justice systems can result in injustices that cannot be addressed effectively by the judiciary; this is why the US invests this authority not just in presidents for federal offenses also in governors for state and local offenses. Some states, however, require a more collaborative process in which governors are encumbered by independent panels that have the authority to review and reverse clemency decisions, or have to approve such actions, or make the actions themselves subject to gubernatorial review and approval. That may not eliminate all abuse of clemency power, but it certainly makes abuse more difficult to accomplish and keeps some form of check on that authority.
A constitutional amendment could be crafted for Congress to play that kind of role in presidential clemency actions. Either Congress could have the authority to review and approve such decisions before they took effect, or could have the authority to repeal such clemency actions within a set review period. Given that most of these actions occur in the final days of presidencies, that period would have to extend into the next session, a framework already established for federal rulemaking under the Congressional Review Act. In fact, the CRA would be an excellent model for such an amendment. (The CRA didn’t require a constitutional amendment because bureaucratic rulemaking authority is statutory rather than constitutional, unlike presidential clemency power.)
But would such an amendment pass? It’s not easy to amend the Constitution, and for good reason, but this would have a very good chance of success. For one thing, it increases the power of Congress, which means it will be easier to get the supermajorities needed in both chambers to send it to the states. Second, the states themselves have similar constraints on clemency decisions and will likely see this as normative with their own practices. And most of all, the disgust and concern about how this power has been abused — and may be in the future — is now highly acute, bipartisan, and very widespread, although for different reasons and motives.
Winston Churchill once wrote that bad kings make for good law. We can put that into practice as soon as the next session of Congress, and Senator Cotton could take the lead on such a project — if indeed he wants to put an end to the current impunity of abuse by ‘Biden.’
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