On April 21, Attorney General Eric Holder announced that President Obama plans to use his constitutionally-granted pardon power for certain eligible nonviolent drug offenders serving excessive sentences, a systemic approach to clemency that was most recently used by former Republican President Gerald Ford. In response, Fox immediately turned to right-wing media guests to push the false idea that this proposal is unconstitutional and unprecedented.

Before President Obama signed the Fair Sentencing Act of 2010, defendants convicted of selling or using crack received sentences nearly 100 times more severe than those convicted of selling or possessing cocaine -- despite the fact that the drugs are essentially the same thing. Those convicted and punished under the disparate sentencing guidelines were disproportionately black. The Obama administration's decision to use the pardoning power to commute unduly harsh sentences would, according to Attorney General Holder, apply to those offenders who were sentenced under the “old regime.”

This proposal would not overturn their convictions, but would shorten their now-outdated sentences.

Fox Business host Lou Dobbs reported on the clemency proposal by asserting the attorney general's explanation for the need to ameliorate systematic discrimination was one of Holder's “fictions” and was “ludicrous” because the Civil War already eliminated slavery. Dobbs also hosted right-wing media figures to accuse the president of “gutting the Constitution and separation of powers doctrine at the same time.” Fox News' Special Report pushed a similar narrative, with correspondent Mike Emanuel uncritically repeating a former Bush II official's claim that “this is yet another example of Obama going around lawmakers” before misleadingly claiming “Orrin Hatch said Congress, not the president, has the authority to make sentencing policy. Hatch called on Mr. Obama to work with Congress, rather than, once again, going it alone.” 

Fox News' Megyn Kelly also took exception to the Obama administration's proposal, hosting NRO contributor Andrew McCarthy on The Kelly File to rail against the announcement. Kelly, upset that “convicted -- convicted” drug offenders might finally have their sentences commuted, characterized the proposal as executive overreach on the part of the Obama administration. McCarthy agreed with Kelly and claimed that Obama's use of the pardon power was a “massive abuse” and tantamount to “rewriting the federal narcotics laws which he personally thinks are too severe.”

Kelly and McCarthy ignore the historical use of the pardon power by past presidents. Neither Kelly nor McCarthy mention the fact that the presidential pardon power has very few constitutional limits (it can be used for all federal criminal offenses, other than impeachment offenses), and nearly every president in history has made use of it during their administrations. Even the Heritage Foundation, an extremely conservative think tank, has argued that “the pardon power has been and will remain a powerful constitutional tool of the President,” and that “the power to pardon is one of the least limited powers granted to the President in the Constitution.” The “Heritage Guide To The Constitution” also helpfully explained:

Presidents have sought to use the pardon power to overcome or mitigate the effects of major crises that afflicted the polity. President George Washington granted an amnesty to those who participated in the Whiskey Rebellion; Presidents Abraham Lincoln and Andrew Johnson issued amnesties to those involved with the Confederates during the Civil War; and Presidents Gerald R. Ford and James Earl Carter granted amnesties to Vietnam-era draft evaders.

So McCarthy's suggestion that Obama's decision to grant clemency is a “massive abuse” is a rather ahistorical view of the pardon power. Obama has so far granted clemency to convicts at a much lower rate than his predecessors. According to Pro Publica,“Obama parceled out forgiveness far more rarely than his recent predecessors, pardoning just 22 individuals while denying 1,019.” This is far less than former President Gerald Ford, a Republican, who created a clemency board to review the cases of nearly 21,000 petitions from Vietnam draft evaders, the systemic model sentencing experts are encouraging Obama to now use for these nonviolent drug offenders. As explained by The American Prospect, the board granted “90 percent of the petitioners some form of clemency, from immediate pardon to two years of alternative national service.”

Fox and its guests are also wrong about the president ostensibly usurping Congress' role in setting sentencing law. As explained by Heritage, the president's constitutional powers affect the individual sentences, not the authority of the underlying criminal statute. Senator Hatch himself made the distinction, which Emanuel and others ignored: “The President has authority to grant clemency to certain individuals who are no longer dangerous to the community. But I hope President Obama is not seeking to change sentencing policy unilaterally.”

He's not. Hopefully someone will tell Fox.