The Constitution empowers the president to pardon civil offenses

The Hill

a day ago

President Trump has exercised the pardon power in ways that have defied custom and surprised many.
He pardoned all of the Jan. 6 rioters. He has sometimes bypassed the traditional Department of Justice process for considering pardon requests. The Wall Street Journal recently characterized pardons in Trump's second term as 'the Wild West.'
As in other areas, Trump has approached pardons in a way that rejects norms and maximizes executive prerogative.
However, Trump has not yet deployed the pardon power in another way that would challenge convention and expand presidential authority: He has not tried to pardon any civil offenses.
But he could do it.
Many punishments meted out by the federal government take the form of civil penalties rather than criminal sentences. Agencies such as the Securities and Exchange Commission, the Environmental Protection Agency and the Consumer Financial Protection Bureau routinely impose penalties of millions of dollars for alleged civil — not criminal — violations, as well as imposing restrictions on the future conduct of the entities they target.
If he wished to do so, Trump could remedy the regulatory overreach of unduly aggressive civil enforcement actions by pardoning the underlying civil offenses.
The pardon power is succinctly set forth at Article II, Section 2 of the Constitution: 'The president … shall have power to grant reprieves and pardons for offences against the United States, except in cases of impeachment.'
Conventional wisdom says the pardon power is limited to criminal offenses, but you will notice there is no such statement in the constitutional language. This erroneous conclusion stems largely from the Supreme Court's 1925 decision Ex parte Grossman, in which the court held that the president could pardon criminal contempt of court, but suggested a pardon could not apply to civil contempt.
The distinction was based on the court's characterization of criminal contempt as 'punitive' whereas civil contempt is 'remedial.' However, this distinction does not lead inexorably to the conclusion that the pardon power applies only in the criminal context. It could just as easily lead to the conclusion that any 'punitive' measure imposed by the federal government can be pardoned.
Indeed, the Supreme Court's reasoning in Grossman was at odds with earlier decisions in which the court sweepingly asserted that the president can pardon 'fines, penalties, and forfeitures of every description arising under the laws of Congress' (The Laura, 1885) and that the pardon power 'extends to every offense known to the law' (Ex parte Garland, 1866).
There is no question that the Constitution empowers the president to pardon terrorists and organized crime bosses. It would be deeply incongruous if he could pardon heinous criminal acts but not, for example, civil violations of securities laws.
The notion that the president lacks authority to pardon civil offenses is inconsistent with the best reading of the Constitution. The term 'offences' used in the Pardon Clause is a broad category that includes but is not limited to crimes.
In addition to the Pardon Clause, the term 'offences' appears in the 'Offences Clause' at Article I, Section 8. This clause gives Congress the power 'To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations.' This clause is not limited to criminal acts — the courts and Congress have cited it as authority for civil laws, such as the Foreign Sovereign Immunities Act and the Torture Victim Protection Act.
Further, the Pardon Clause states that impeachment cannot be pardoned, though impeachment is not a criminal offense. If the Framers understood that the pardon power applies only to criminal offenses, there would have been no need so explicitly to exclude impeachment from its reach.
In the early days of the republic, pardons were used to excuse violations that today would be considered civil in nature. Federal civil offenses did not even exist in the late 18th century. Consequently, early presidents issued pardons for then-criminal offenses that would undoubtedly be treated as civil regulatory violations today.
For example, Washington and Adams pardoned minor customs violations. Jefferson issued pardons for 'keeping a billiard table without license' and 'keeping a disorderly house.'
Trump has taken unprecedented steps both to reduce regulatory overreach and to reassert executive authority as intended by the Constitution — for example, by removing members of so-called 'independent' agencies. Applying the pardon power to civil offenses where warranted is another legitimate tool available to him.
Thomas Beck is the author of 'Constitutional Separation of Powers: Cases and Commentary' and is a former federal agency head. He served as an adviser to the Trump-Vance transition.