Limited Presidential Pardon Reform

The problem

The Constitution gives one person the power to erase any federal offense — before charges, during trial, or after conviction — in secret, for any reason, owing an explanation to no one. The power exists for good reasons: mercy for the over-punished and correction of injustice are as old as executive government, and this amendment expressly protects both. The problem is the design. No counsel is required, no reason ever has to be given, and no other official touches the decision. Among peer democracies the United States is the outlier: everywhere else surveyed, clemency must be at least one of counseled, individual, explained, or reviewable for bad faith. The federal pardon is none of the four.¹ The states are stricter still: roughly half condition or remove the governor’s clemency power,² Georgia’s governor cannot pardon anyone at all,³ and the governor of Texas may act only on a pardon board’s written recommendation — and only after conviction.⁴

The record shows what the unchecked design produces. Under administrations of both parties, pardons have gone to presidents’ relatives, associates, and donors — often in the final hours of a term, outside any regular process, with no reason given.⁵ The abuse is structural, not partisan. At the same time, the pardon fails at its own job: thousands of ordinary clemency petitions sit unanswered for years⁶ while grants flow through personal and political channels.⁷ Legislation cannot reach any of this. The Supreme Court held in Ex parte Garland (1866) that the pardon power “cannot be fettered by any legislative restrictions,”⁸ and confirmed in Schick v. Reed (1974) that it “cannot be modified, abridged, or diminished by the Congress.”⁹ By the Court’s own doctrine, only an amendment can.

The principle

Five sections, four jobs — and the whole package reduces to one sentence: mercy is preserved, but it must be public, and it may not be sold or granted to family.

Mercy in public. Every pardon must be published — recipient, offenses, and the president’s written reasons — and reported to Congress before it takes effect. California and New York have required exactly this of their governors for over a century, with no evidence it chilled legitimate clemency.¹⁰ The requirement is a disclosure condition, not an approval condition: no official sits in judgment of the reasons’ adequacy, so the clause can never become a veto on mercy. Its force is publicity.

Named individuals, specified offenses. Every pardon must name its recipient and the offenses it covers, and no pardon can reach crimes not yet committed. That bars blanket grants to unnamed thousands and open-ended grants covering a decade of unspecified conduct — each form used in recent years, one by an administration of each party.¹¹ France abolished collective pardons by constitutional amendment in 2008;¹² Germany’s Basic Law confines the power to “individual cases.”¹³ Individual mercy, including a pardon for specified past conduct before charges are filed, is untouched.

No self-dealing. The president may not pardon a spouse or close relative, and a pardon granted in exchange for anything of value — or to shield the president’s own legal or financial interests — is void, with the bribery laws expressly reaching the transaction. This writes into the Constitution what federal law already treats as chargeable: pardons suspected of being sold have drawn criminal investigation under administrations of both parties.¹⁴ A relative denied a pardon loses nothing but the conflicted grantor — the courts, the clemency process, and every successor president remain open.

A savings clause. Nothing in the article diminishes the power to pardon anyone it does not describe. This is the drafted answer to the strongest objection — that constraining the pardon would deepen the existing clemency drought for ordinary applicants. The amendment constrains secrecy and self-dealing; it leaves mercy’s whole legitimate range exactly where the Framers put it.

The draft text

Why it can pass

The polling on pardon reform has a clear structure. Asked generically whether to amend the Constitution to “limit the pardon power,” Americans split by party — 56% overall, 34% of Republicans, 76% of Democrats (Economist/YouGov, 2025)¹⁵ — because a generic limit reads as aimed at whoever holds the office today, and support historically collapses inside the incumbent’s party. Categorical rules behave differently. The family ban is the strongest number measured for any provision in this package:

That survey was commissioned by a reform-advocacy organization,¹⁶ so we treat its numbers as provisional until independently replicated — and an independent poll taken weeks after a Democratic president pardoned family members found the floor moves with the incumbent’s party (72% of Republicans and 42% of Democrats called family pardons unacceptable).¹⁷ A forward-looking poll of this provision, tied to no sitting president, is the first we will commission. The direction is corroborated from both sides: recent pardons benefiting a president’s family and a president’s associates — one set from each party — each drew approval from fewer than a third of Americans (Monmouth University, 2024).¹⁸ And the package’s lead provision, public justification, has never been directly polled by anyone. It is the provision least attached to any sitting president, and the first poll we will commission.

The precedents run deeper than the polling:

• The states have run this experiment for over a century. The California and New York constitutions require every gubernatorial pardon to be reported with reasons — the model for Section 1.¹⁰ Pennsylvania, Texas, Delaware, and Florida let the governor act only on a board’s recommendation,¹⁹ and Georgia’s voters moved clemency to a board entirely by constitutional amendment in 1943, after a pardon-selling scandal.²⁰ The states with the strictest rules — Georgia, Texas, Utah, Idaho, and Nebraska among them — are conspicuously absent from the modern pardon-scandal record; the scandals cluster where one person decides alone.²¹
• Peer democracies show a second signature leaves mercy intact. Germany and Italy have required countersignature of pardons for some seventy-five years, with no clemency paralysis and no pardon-selling scandal.²² France banned collective pardons constitutionally in 2008.¹²
• Congress has moved before. A 1974 constitutional proposal to let two-thirds of both Houses void a pardon received Senate hearings,²³ and in 2021 the House passed pardon-transparency and pardon-bribery provisions, 220–208.²⁴ That vote was near party-line: the provisions traveled inside a partisan omnibus and inherited its partisan label. The lesson shaped this draft — a standalone article, binding all future presidents of both parties equally.

The publication-with-reasons principle in Section 1 also has a live test in a Republican-governed state. Kentucky’s Senate Bill 10 — a constitutional amendment requiring every clemency application and the governor’s statement of reasons to “always be open to public inspection” — passed the Kentucky Senate 36–0 and the House 82–12 (Republicans 73–2) in 2026 and goes to the state’s voters on November 3, 2026.²⁵ Whatever the outcome, the legislative margins update the record of Republican-led states on clemency transparency from the 1930s constitutions to the present.

If it passes: the law today and the day after

What changes on the day the article is ratified, and what stays. (How ratified amendments interact with existing law in general is covered in After ratification.)

Federal law today

No statute or regulation requires a presidential pardon to be published, named, or explained. The Justice Department’s clemency rules route petitions through the Pardon Attorney, but they are “advisory only” and do not “restrict the authority granted to the President.”²⁶ Mass grants issued as proclamations reach the Federal Register; individual warrants do not,²⁷ and the Pardon Attorney’s public lists record name, district, sentence, and offense — not reasons.²⁸ The bribery statute punishes trading an “official act” for anything of value,²⁹ though the Supreme Court’s 2024 presidential-immunity decision limits what a pardon-bribery prosecution of a president could use — the public record of the act and evidence of the payment, not testimony probing the act itself — and leaves open whether such a charge could proceed at all.³⁰ The Supreme Court reads the power to reach any federal offense “at any time after its commission”⁸ and to be beyond legislative control.⁹

State law today

Six states vest the pardon power in a board and twenty-two more make the governor share it with one.² At least six state constitutions — California, New York, Delaware, Michigan, Ohio, and Wisconsin — require the governor to report each grant to the legislature with reasons.¹⁰³¹ The article governs federal clemency only; no state provision conflicts with it.

The day after

Sections 1 through 4 are categorical, self-executing rules; they bind on ratification without further legislation, and Section 6 lets Congress standardize the publication machinery without affecting the clemency decisions themselves. From that day an unpublished pardon has no effect (Section 1); a grant that does not name its recipient and specify offenses — a 2025 proclamation pardoning “all other individuals convicted of offenses related to” one day’s events,³² or a 2024 pardon covering any federal offense over ten years¹¹ — is invalid (Section 2); a pardon to a relative within the third degree, the measure federal judicial-recusal law already uses,³³ fails (Section 3); and a sold pardon is void (Section 4). Section 5 preserves the power for everyone the article does not describe; the clemency regulations and bribery statute stand. Section 1 makes the President the publisher; Congress would still have to legislate the mechanics — where publication happens and how transmission to Congress works, as existing bills propose³⁴ — and would likely state expressly that the bribery statute reaches presidential clemency, as 2021 and 2026 bills would.²⁴³⁵ The draft has no transition clause: grants completed before ratification are final under the rule that a completed pardon cannot be revoked,³⁶ and courts would decide whether “granted” means signed, delivered, or published,³⁷ and how much a “statement of the reasons” must say.

What we left out

What we considered and set aside, and why:

• An explicit self-pardon ban. We set it aside as a standalone provision because its support depends on the wording and the sample: 59% of Republicans backed a self-pardon ban in a 2024 advocacy-commissioned survey (96% of Democrats — YouGov for Protect Democracy),¹⁶ but a national YouGov survey that same summer found 43% of Republicans supporting a prohibition (81% of Democrats, 67% of independents),³⁸ and a generic constitutional limit on the pardon power drew 34% of Republicans in 2025 (Economist/YouGov).¹⁵ A provision whose numbers move that much with wording and sample fails our full-spectrum test. The principle survives inside Section 4 — a pardon granted to shield the president from legal liability is void — and the explicit ban returns if an independent, forward-looking poll shows support holding in both parties.
• A ban on pardoning the president’s own associates and co-conspirators. Polls at 69% (50% of Republicans, 84% of Democrats — YouGov for Protect Democracy, 2024)¹⁶ — exactly at the partisan threshold, and only in advocacy-commissioned surveys. It also raises the hardest legal question in the field: “at the direction of the president” requires a factfinder, inviting case-by-case judicial inquiry into presidential motive.³⁹ It returns if independent polling clears the bar; until then it is set aside.
• A congressional veto on pardons. A 1974 proposal would have let two-thirds of both Houses void a pardon within a fixed window²³ — a structural check proposed in the Watergate era, but never polled, and procedurally complex.
• An exception for categorical amnesties. The naming rule in Section 2 bars the class-wide amnesties — post-rebellion, draft-era — that were legitimate uses of the power. We drafted exceptions limiting categorical grants to classes defined by offense, with each beneficiary individually certified; every version added more complexity than it was worth. Naming plus publication does the work.
• Details that belong in statute: an independent clemency board with a duty to decide every petition within a fixed period — the direct remedy for the clemency drought⁴⁰ — plus pardon-lobbying disclosure, victim notification in crimes with identifiable victims, and machine-readable publication of the clemency docket.

← All amendments