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Wednesday, June 06, 2018

Richard Epstein's Mistakes

Richard Epstein has an op-ed in the Wall Street Journal calling the fiduciary view of Article II "outlandish" and "absurd."  This view was most recently endorsed by a law professor letter here

Unfortunately, Epstein makes two pretty basic mistakes in the column.  First, the command that the President "take Care that the Laws be faithfully executed" should be read to cover the President's powers under the Constitution, which is, rather obviously, part of the Law.  Think about Article VI: "This Constitution . . . shall be the supreme Law of the Land."  So when the President is "faithfully executing," he has got to be faithful to the Constitution as Law. 

But even more basically still, the President's Oath of Office in Article II commands that the President "faithfully execute the Office of President of the United States."  That means that whatever powers come with the office themselves must be "faithfully executed."  Epstein can contest the fiduciary view about what "faithful execution" means -- but he cannot contest that the President's pardon power must itself be "faithfully executed."

The idea that it is too much to ask of a President that he act with reasonable care and in the public interest when he pardons is really the outlandish claim here.

Posted by Ethan Leib on June 6, 2018 at 03:00 PM | Permalink


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