How Trump Could Use the Pardon Power to Provide COVID-19 Regulatory Relief | Opinion

As of this week, the EPA is back on the prowl for small environmental infractions after the expiration of its pandemic reprieve from routine civil enforcement—a move that could choke nascent economic recovery. The Trump administration could do more to provide needed regulatory relief.

Professor John Yoo recently suggested that the Supreme Court's decision upholding the Obama administration's Deferred Action for Childhood Arrivals program green-lights all manner of executive waivers to boost the economy and implement Republican priorities. We are skeptical. We think the Court's contorted legal reasoning cannot be taken seriously or literally—so, sadly, neither can Professor Yoo's (admittedly entertaining) tax cut suggestions.

But there is a more straightforward path for President Trump to provide needed COVID-19 regulatory relief: the pardon power.

Article II of the U.S. Constitution grants the president the "Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of impeachment." As the Supreme Court said in the case of The Laura in 1885, "the president, under the general, unqualified grant of power to pardon offenses against the United States, may remit fines, penalties and forfeitures of every description arising under the laws of Congress."

To provide COVID-19 regulatory relief and badly needed legal certainty to the economy, the president could sign a blanket pardon forgiving federal penalties of every description for those who have complied with COVID-19 non-enforcement policies. From March through August, the EPA issued guidance promising not to enforce civil regulatory violations caused by COVID-19. But this policy is non-binding. Another president, the states or even NGOs acting as private attorneys general through citizen suits may try to seek enormous civil penalties for violations covered by the policy. The president could preempt that risk by pardoning (in advance of any suit) any civil punishments for past offenses that fall within the terms of the COVID-19 non-enforcement policy. Similar blanket pardons could be issued across the federal government.

President Donald Trump in Wilmington, North Carolina
President Donald Trump in Wilmington, North Carolina Melissa Sue Gerrits/Getty Images

Some scholars believe that the phrase "Offenses against the United States" covers only criminal offenses. But this view is incorrect. Professors Sai Prakash and Noah Messing have shown that the phrase "Offenses against the United States" is best understood to cover any federal offenses punishable by penalties or forfeitures payable to the United States—including regulatory offenses. It makes no difference whether Congress labels a penalty "civil." As the Supreme Court has held, "From the relevant constitutional standpoint, there is no difference between a man who 'forfeits' $8,674 because he has used the money in illegal gambling activities and a man who pays a 'criminal fine' of $8,674 as a result of the same course of conduct."

To be sure, the rise (and rise) of regulatory offenses punishable by "civil" penalties is a modern phenomenon. But it would be absurd to allow Congress to sideline the president's unqualified power to pardon by changing an offense's label. As Justice Gorsuch recently observed:

Ours is a world filled with more and more civil laws bearing more and more extravagant punishments. Today's "civil" penalties include confiscatory rather than compensatory fines, forfeiture provisions that allow homes to be taken, remedies that strip persons of their professional licenses and livelihoods, and the power to commit persons against their will indefinitely. Some of these penalties are routinely imposed and are routinely graver than those associated with misdemeanor crimes—and often harsher than the punishment for felonies.

Indeed, civil penalties are "sometimes more severely punitive than the parallel criminal sanctions for the same conduct." Given this reality, and the fact that federal fines of every description fall comfortably within the scope of the pardon power, President Trump has ample authority to provide needed COVID-19 relief by pardoning those who have complied with non-enforcement policies—and perhaps rein in the administrative state, more broadly.

James R. Conde, of Virginia, and T. Elliot Gaiser, of Ohio, are lawyers in Washington, D.C.

The views expressed in this article are the writers' own.