Legal Scholars Challenge Constitutionality of Arpaio Pardon in Racial Profiling Case

By: Joe Katz, L ’17

The activist group Protect Democracy is laying the groundwork for a legal challenge to President Trump’s decision to pardon Joe Arpaio, the former Arizona sheriff who was convicted in July of criminal contempt of court for his refusal to obey a court order to stop racially profiling Latinos[1]. In a letter to the Public Integrity Section of the Justice Department, Protect Democracy argues that the pardon is both inappropriate and unconstitutional.[2] Specifically, they argue that it violates the 5th Amendment by undermining the authority of the Judiciary to rein in government officials who violate due process and other constitutional norms.[3]

Arpaio was elected Sheriff of Maricopa County in 1993, and immediately ordered the construction of an outdoor tent city to house Latino inmates, which he himself referred to as a “concentration camp.”[4] The county paid millions of dollars per year to settle cases brought by family members of people who died in the self-proclaimed concentration camp after being deprived of adequate shelter, water, and medical care.[5]

Arpaio also gained a reputation for taking pleasure in finding creative – and often juvenile – ways to humiliate the inmates in his facilities. He forced male inmates to wear pink underwear, his website posted a “mugshot of the day,” and he installed webcams in the jail so that people could use the internet to watch female inmates use the toilet.[6] [7] [8] A lawyer for his office, who apparently managed to pass three years of law school and the bar exam, once tried to reassure a reporter for the Arizona Republic that the toilet cam was appropriate because it would not be used to show minors “unless they look older and lie to us.”[9]

Finally, in 2011, Arpaio was ordered by a federal judge to stop his notoriously rampant racial profiling. Although he publicly flouted the court order for five years, it wasn’t until after voters booted him out last November that he was held criminally liable. [10] [11] [12]

Thus, the fear arises that if the President can intervene to prevent the judiciary from reining in government officials who violate constitutional norms, then the President effectively has the power to single-handedly repeal constitutional provisions on a whim.

But does that make the pardon unconstitutional?

Although the Constitution makes no mention of a way to challenge a pardon, many legal scholars agree that the power is not absolute.[13] As Protect Democracy points out in its letter, “While the Constitution’s pardon power is broad, it is not unlimited. Like all provisions of the original Constitution of 1787, it is limited by later-enacted amendments, starting with the Bill of Rights. For example, were a president to announce that he planned to pardon all white defendants convicted of a certain crime but not all black defendants, that would conflict with the Fourteenth Amendment’s Equal Protection Clause.”[14]

Philip Allen Lacovara, a former Justice Department official, made a similar point, using the example of a pardon given in exchange for a bribe.[15]

Northwestern University professor Martin H. Redish concurs that a pardon can be struck down in court if it violates constitutional principles: “But as a principle of constitutional law, anything in the body of the Constitution inconsistent with the directive of an amendment in necessarily pre-empted or modified by that amendment. If a particular exercise of the pardon power leads to a violation of the due process clause, the pardon power must be construed to prevent such a violation.”[16]

In other words, the pardon sends a signal to other government officials that they can violate constitutional norms in order to further the President’s agenda without having to fear that the normal processes of checks and balances once guaranteed by the separation of powers will be there to hold them accountable. If Protect Democracy moves forward and challenges the pardon in court, it will be up to the Supremes to decide if that is as unconstitutional as common sense would suggest.

[1] Jennifer Rubin, Legal Challenge to Arpaio Pardon Begins, Washington Post, Aug. 30, 2016, https://www.washingtonpost.com/blogs/right-turn/wp/2017/08/30/legal-challenge-to-arpaio-pardon-begins/?utm_term=.65195949ff68

[2] Id.

[3] Id.

[4] Valeria Fernandez, Arizona’s “Concentration Camp”: Why was Tent City Kept Open for 24 Years?, The Guardian, Aug. 21, 2017, https://www.theguardian.com/cities/2017/aug/21/arizona-phoenix-concentration-camp-tent-city-jail-joe-arpaio-immigration

[5] Id, see also Jacques Billeaud, Maricopa Sheriff Lawsuits Cost Taxpayers Millions, Seattle Times, Jan. 27, 2014, http://www.seattletimes.com/nation-world/maricopa-sheriff-lawsuits-cost-taxpayers-millions/

[6] Tim Mak, Arizona’s Tent City Jail: Where Prisoners Wear Pink Underwear, Eat Meatless Meals and Swelter in the 120 Degree Heat, Washington Examiner, April 8, 2014, http://www.washingtonexaminer.com/arizonas-tent-city-jail-where-prisoners-wear-pink-underwear-eat-meatless-meals-and-swelter-in-the-120-degree-heat/article/2546924

[7] Philip Caulfield, Ariz. Sheriff Joe Arpaio Creates “Mug Shot of the Day!” Feature, Web Visitors Vote on Favorite Photo, New York Daily News, Apr. 20, 2011, http://www.nydailynews.com/news/national/ariz-sheriff-joe-arpaio-creates-mug-shot-day-feature-web-visitors-vote-favorite-photo-article-1.113671

[8] Associated Press, “Jail Cam” in Privy Turned Off After Privacy Complaints, Los Angeles Times, Apr. 28, 2001, http://articles.latimes.com/2001/apr/28/news/mn-56746

[9] Id.

[10] Ray Stern, Sheriff Joe Arpaio’s Office Commits Worst Racial Profiling in U.S. History, Concludes DOJ Investigation, Phoenix New Times, Dec. 15, 2011, http://www.phoenixnewtimes.com/news/sheriff-joe-arpaios-office-commits-worst-racial-profiling-in-us-history-concludes-doj-investigation-6655328

[11] Ben Guarino, Arizona’s Joe Arpaio Ousted by Voters, Ending the 24-Year Run of “America’s Toughest Sheriff,” Washington Post, Nov. 9, 2016, https://www.washingtonpost.com/news/morning-mix/wp/2016/11/09/ariz-sheriff-joe-arpaio-ousted-by-voters-ending-the-24-year-run-of-americas-toughest-sheriff/?utm_term=.d0f9efd95fe5

[12] Associated Press, Sheriff Joe Arpaio Guilty of Contempt for Ignoring Order to Stop Racial Profiling, The Guardian, July 31, 2017, https://www.theguardian.com/us-news/2017/jul/31/joe-arpaio-convicted-contempt-immigration-patrols

[13] U.S. Const. art II, § 2

[14] Rubin, supra https://www.washingtonpost.com/blogs/right-turn/wp/2017/08/30/legal-challenge-to-arpaio-pardon-begins/?utm_term=.65195949ff68

[15] Philip Allen Lacarova, How the Pardon Power Could End Trump’s Presidency, Washington Post, Aug. 29, 2017, https://www.washingtonpost.com/opinions/how-the-pardon-power-could-end-trumps-presidency/2017/08/29/57365dfc-8cf7-11e7-84c0-02cc069f2c37_story.html?tid=a_inl&utm_term=.1ebf4209d045

[16] Martin H. Redish, A Pardon for Arpaio Would Put Trump in Uncharted Territory, New York Times, Aug. 24, 2017, https://www.nytimes.com/2017/08/24/opinion/trump-arpaio-pardon-arizona-sheriff.html

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