In the giddy hangover of our tumultuous celebration of American liberation, let’s chat about some of the legal aspects of what’s happening and what’s going to happen because there are a lot of bad legal takes out there (follow the essential Twitter account of the same name), and you don’t want to be repeating the same kind of nonsense that other people do. Let’s be clear about something. I’m not telling you what I think the law should be. I’m telling you how the law actually is. And then I’ll give my opinion, which might be wrong.
Of course, my caveat requires a caveat in an environment where it’s less about precedent than about filling in legal Mad Libs. There are a lot of bad judges out there who either don’t know what the law is or simply don’t care and rule solely by their corrupt communist ideology. What these disgraces say has nothing to do with what the law actually is. They just cloud the issue with their nonsense. Of course, a great example of that is the ridiculous idea that some judges in Colorado could take Donald Trump off the ballot because they decided he was an insurrectionist because of reasons and Orange Man Bad. It took the Supreme Court about five seconds to unanimously dispense with this idiocy, but you see the problem. Like Trump’s bogus conviction in New York for a crime that didn’t exist, a ridiculous ruling persists until the process gets around to punting it through the goalposts of legal oblivion.
Let’s talk about pardons for a second. There’s lots of talk about pardons out there, and a lot of it’s crazy talk. A lot of it is just wrong. The president has the absolute power to pardon federal crimes, but only federal crimes. He can’t pardon state crimes. For federal crimes, it’s an unlimited power. This means that there are no limitations on how a president exercises it. People keep trying to create limitations that don’t exist. “Oh, you can’t pardon a crime that hasn’t been charged.” Of course you can. It’s an unlimited power. It’s not limited to pardoning crimes that have been charged. And that is how it’s been used in practice as well. Ford pardoned Nixon even though he wasn’t charged with any crimes. Carter pardoned the draft dodgers even though they hadn’t been charged with any crimes. A president can pardon for bad reasons, like to protect his scumbag family and scumbag political allies like Liz Cheney. Again, the Constitution doesn’t limit the power to just using it for good reasons or for any reason at all.
Nor is receiving a pardon an admission of a crime. Yes, I know there’s a Supreme Court case out there with some dicta that people have been twisting that way. “Dicta” is a legal term for something a court says in an opinion that does not relate to the resolution of the issue at hand, and dicta is not precedent. It just hints at what the judges might rule if that specific issue ever actually comes before them. Hundred-year-old dicta is worth approximately nothing.
Anyway, the case people were talking about concerned someone effectively rejecting a pardon. Apparently, you can do that. Now, the Constitution says nothing about rejecting a pardon, so why does that concept exist? Because if you accept pardon, it affects your rights. How does it affect your rights? It eliminates your right to decline to answer questions under the Fifth Amendment because, by definition, you can’t incriminate yourself if you’ve been pardoned. So, by accepting a pardon, you give up the protection of the Fifth Amendment regarding statements about the subject of the pardon. The Constitution does not allow someone to take away your rights without your permission or due process. Accordingly, you can reject a pardon.
Now, does a pardon necessarily mean that you have admitted guilt of the underlying crime? No, though, people say that all the time. Pardons can be protective. You can protect people from injustice, which is what Joe Biden said he was doing, even though we all know he wasn’t doing that when he pardoned the persecutors and traitors. But pardoning people protectively is a real thing, and it’s a good thing. We should be happy about it. That’s an important power for the president, one that the J6 persecutions have shown is vital. As much as the losers and creeps Joe Biden pardoned are losers and creeps, their acceptance of a pardon is not an admission of guilt as a matter of law. As a matter of reality, in this case, it kind of is. But law and reality are different things. And there’s a lot of talk about how this sets a bad precedent, but I’m glad that President Trump will be able to leave office and protect the people who the Democrats will unfairly persecute should they regain power.
This part is my opinion – I don’t think we should do anything to change the pardon power. At some point, we must rely on the honor and dignity of the people who hold offices, and in the case of people like Joe Biden, their abuse of the pardon power is an important indicator of just how scuzzy they are.
Donald Trump purported to end birthright citizenship under the 14th Amendment by executive order on Day One of Trump 47. There probably would’ve been a bigger meltdown if there hadn’t been about 45 other meltdowns going on simultaneously. In any case, the people who did comment on it were largely huffy because they considered the issue settled. The issue was not settled. There is a non-frivolous argument that the 14th Amendment does not provide for the citizenship of anyone born within the confines of the United States, except a relatively few people like children of foreign diplomats. That’s how the law has been interpreted until this executive order. There are tens of millions of Americans who were born here and have American citizenship right now, even though their parents were here illegally. So, we have both existing precedent and facts on the ground – people who are American citizens Through this process – to contend with.
The issue has to do with who is here in America, subject to American laws, and whether that means illegal aliens, too. I’m not going to jump into that debate because I simply don’t have the space, but if you’re interested, you can go hunt down the arguments both ways. But there are arguments for and against birthright citizenship. Don’t listen to people who tell you that there is no argument against the current application of the 14th Amendment. There is an argument. And that argument is going to be made. I’m not sure whether Donald Trump’s going to direct the federal government to deny citizenship to children of illegal aliens, thereby spawning the litigation, or whether opponents will file litigation preemptively. But it is going to go up through the courts and it is going to be heard, and it is going to be analyzed. That’s how things should work. You make arguments, and then judges consider them in the context of precedent and rule accordingly.
Here’s my opinion. Although I haven’t seen the counterargument fully briefed in legal filings, so my opinion is flexible, I tend to think that the current application of the 14th Amendment creating birthright citizenship is probably correct. I don’t have to like that. That’s just my legal analysis, and I can be convinced otherwise and maybe I will be once I see the issue fully briefed. I do see huge practical problems with applying it. How does this affect people who currently have citizenship but would not have it under the new interpretation of the 14th Amendment? Do we apply the new interpretation from now on, or do we reach back and strip them of citizenship? I think denaturalizing current citizens would be unjust, and I am about as anti-illegal alien as you can get without wanting to hunt them for sport.
In any case, we’ll find out. That’s why we have a justice system, and I’d like to see it used to create justice instead of being used against just us.
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