Immigration Article of the Day: Executive Clemency and Immigration Federalism: Reconsidering Presidential Power Over Deportation Orders by Linus Chan, Lauren Butler, and Emma Wittner

Executive Clemency and Immigration Federalism: Reconsidering Presidential Power Over Deportation Orders by Linus Chan, Lauren Butler, and Emma Wittner, 61 Idaho Law Review 334 (2025)

Abstract
Given the lack of clear historical precedent and the unique nature of deportation’s function in the criminal justice system, this article advocates for a constitutional basis for the President’s authority to grant clemency for deportation orders imposed on lawful permanent residents, refugees, or other noncitizens stripped of their legal immigration status as a result of mandated deportation after a criminal conviction. 

We contend  that violations of the immigration statute that mandate deportation based on criminal convictions are punitive in nature and thus while civil, are nonetheless a penalty; second, we contend that given this punitive nature, violations of such laws qualify as "offenses against the United States" and, therefore, are eligible for clemency under the President's pardon power. Because deportation as a process is completely and exclusively federal, it does not matter whether the underlying crimes that resulted in the deportation orders are state or federal. Deportation is a federal penalty which places it within the ambit of the President’s constitutional power to grant a reprieve under the pardon clause.