Wednesday, November 21, 2012

President Obama Won't Pardon Ohio State

Can't Pardon Ohio State and Won't Try

Would Agree


NBC Sports is reporting that Ohio State fans have petitioned President Obama unilaterally to lift the NCAA's ban on post-season play by the Buckeyes, who are currently 11-0 and ranked number 4 in the Associated Press poll.  (See also here for an earlier story by FoxSports).  In particular, the fans' petition includes the following language:

         “The Ohio State University football team is one win away from an undefeated season. However, due to imposed sanctions, they are not allowed to participate in their conference’s championship game or the following bowl season. While a punishment for past indiscretions is to be expected, a bowl season ban is too harsh for a few young men trading memorabilia for tattoos and some change. The offending players and coach who covered it up are no longer part of the program. Please exercise your executive power to pardon the NCAA’s excessive sanctions placed on The Ohio State Buckeyes to enable a rightful, satisfying culmination to the college football season for the American people.”  (emphasis added)

Unfortunately for Buckeye fans, it seems highly unlikely that President Obama will intervene.  To be sure, the President has shown great interest in the NCAA post-season Bowl structure, even going so far as to encourage an unwarranted antitrust investigation of the BCS.  However, the President has no authority to intervene.  Article II of the Constitution merely empowers the President to "grant reprieves and pardons for offenses against the United States, except in cases of impeachment." (emphasis added).  The Buckeyes committed no offense "against the United States."  Instead, the NCAA, a private organization, found that Ohio State violated certain standing rules of the organization.  These violations were not criminal offenses but were instead analogous to breaches of contracts between Ohio State and other members of the NCAA.

To be sure, Article II also confers upon the President the "Executive power," which the petition also invokes.  From the beginning, scholars and pundits have disagreed about the nature and scope of the power conferred by this provision.  According to some, this power merely includes the authority to execute pre-existing laws passed by Congress, in addition to the express grants of power included in Article II, such as the power to serve as Commander-in-Chief of the Armed forces and the power to negotiate treaties.  James Madison, pictured above, was an early proponent of this view.  Others, however, contend that the "Executive power" includes, in addition to the powers just described, all authority that is inherently "executive" in nature, particularly the power to conduct foreign affairs.  Alexander Hamilton, also pictured above, was an early proponent of this view.  Indeed, Madison and Hamilton debated the question, albeit through pseudonyms, during the early 1790s, in the context of President Washington's 1793 Neutrality Proclamation.  (See here for a summary of that debate, including the primary documents.)  

In this blogger's view, Hamilton probably got the best of this particular argument, and history has vindicated the Nation's first Secretary of the Treasury.  For one thing, the text itself seems to support Hamilton's view.  While Article I confers upon Congress all legislative power "herein granted," Article II's grant of the Executive power is plenary and unqualified.  Moreover, from the beginning, Presidents have entered "Executive Agreements" with foreign powers, without obtaining the Advice and Consent of the Senate, relying upon their "Executive power" to do so.  Finally, as Madison himself advocated while a member of Congress, Presidents have from the beginning exercised the power to remove executive officers, a power that does not expressly appear in Article II.    Thus, Presidents have apparently derived this authority from Article II's grant of "the Executive power." 

Still, neither Hamilton nor Madison articulated a view of the "Executive power" that is broad enough to empower the President to nullify a sanction that a private organization has imposed on one of its members, even if that organization has a substantial effect on interstate commerce.  Such power instead would reside in the Congress, which the Constitution authorizes to regulate commerce "among the several states."  Any Presidential effort unilaterally to nullify such a sanction would quite properly suffer a fate similar to President Truman's unlawful effort to seize the Nation's private steel mills during the Korean War.  See Youngstown Sheet & Tube Co. v. Sawyer,  343 U.S. 579 (1952) (rejecting this seizure as an unlawful exercise of Presidential power).