Tag Archives: Constitution

Perry v. Schwarzenegger, the Federal Challenge to Prop. 8, Goes Before the 9th Circuit

Update  1/4/11:

On January 4, 2011, the 9th Circuit issued orders on the appeal-in-chief (certifying a question to the California Supreme Court) and on Imperial County’s intervenor appeal (denying standing).  The Court’s orders and memoranda are linked below:

11/30/10:

Oral arguments in Perry v. Schwarzenegger, Cases 10-16696 (main appeal) and 10-16751 (intervenor appeal), will be heard by a panel of three judges of the United States Court of Appeals for the Ninth Circuit on Monday, December 6, beginning at 10 a.m. (Pacific time) in San Francisco.  The judges randomly chosen for panel include Stephen Reinhardt, N. Randy Smith and Michael Hawkins.

From the 9th Circuit’s website created for this case:

“The main appeal involves a challenge by two same-sex couples to the constitutionality of Proposition 8, a voter-enacted amendment to the California Constitution, which provides that only marriage between a man and a woman is valid in California. The U.S. District Court for the Northern District of California found Proposition 8 unconstitutional under the Due Process and Equal Protection clauses of the Fourteenth Amendment to the Constitution, and entered an order permanently enjoining the enforcement of Proposition 8. The official proponents of Proposition 8 and the committee designated by the official proponents as the official Yes on 8 campaign appeal the district court’s judgment. In the intervenor appeal, Imperial County, its board of supervisors and county clerk appeal the district court’s denial of their motion to intervene as defendants in the district court proceedings.”

Stanford Law School will be broadcasting the oral arguments in the Student Lounge and the Reference Desk Lounge on the 2nd floor of the Robert Crown Law Library.

In preparation for the hearing, the library has created a Selected Bibliography with links to key court documents, news coverage, legal scholarship, websites, and other publications surrounding both Perry v. Schwarzenegger and Proposition 8.   Please enjoy the collected materials!

Featured Book

The Presidential Pardon Power by Jeffrey Crouch. Published by University of Kansas Press in 2009.  KF9696 .C76 2009

The presidential power to pardon is granted under Article II, Section 2 of the Constitution:”The President … shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.”   The Constitution provides no standards or guidelines, and only one limitation — no pardons for the impeached.

Professor Crouch explores all aspects of the pardon from historical ones to those of recent times, arguing that more recent cases have demonstrated a disturbing misapplication of power. The framers of the Constitution wanted the President to be able to use the clemency power to act quickly to defuse volatile situations that required one person to act quickly. Alexander Hamilton, in Federalist paper 74, said: “… in seasons of insurrection or rebellion, there are often critical moments, when a well-timed offer of pardon to the insurgents or rebels may restore the tranquility of the commonwealth.”

He argues that recent presidents have misused the clemency power to pardon subordinates or reward supporters. He suggests that rather than amending the constitution to “fix” the problem of pardons that abuse the system, the Congress should use the impeachment clause of Article II, Section 4 of the Constitution to punish presidents who exploit the clemency power. However, the temptation to abuse the clemency power is strongest during the final days of a presidential term, as for example, President Clinton’s 140 pardons and 36 commutations made in the two hours before he left the presidency. Crouch concludes that “we need to decide, as a nation, that last-minute clemency abuses will not be tolerated. When a president abuses the clemency power, we need to decide that his actions will trigger real sanctions… It is only by punishing presidents who exploit the clemency power that we can uphold the rule of law, and–ultimately–preserve and defend our Constitution.”

Featured Book

The Presidential Pardon Power by Jeffrey Crouch. Published by University of Kansas Press in 2009. KF9696 .C76 2009

The presidential power to pardon is granted under Article II, Section 2 of the Constitution: “The President … shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” The Constitution provides no standards or guidelines, and only one limitation — no pardons for the impeached.

Professor Crouch explores all aspects of the pardon from historical ones to those of recent times, arguing that more recent cases have demonstrated a disturbing misapplication of power. The framers of the Constitution wanted the President to be able to use the clemency power to act quickly to defuse volatile situations that required one person to act quickly. Alexander Hamilton, in Federalist paper 74, said: “… in seasons of insurrection or rebellion, there are often critical moments, when a well-timed offer of pardon to the insurgents or rebels may restore the tranquility of the commonwealth.”

He argues that recent presidents have misused the clemency power to pardon subordinates or reward supporters. He suggests that rather than amending the constitution to “fix” the problem of pardons that abuse the system, the Congress should use the impeachment clause of Article II, Section 4 of the Constitution to punish presidents who exploit the clemency power. However, the temptation to abuse the clemency power is strongest during the final days of a presidential term, as for example, President Clinton’s 140 pardons and 36 commutations made in the two hours before he left the presidency. Crouch concludes that “we need to decide, as a nation, that last-minute clemency abuses will not be tolerated. When a president abuses the clemency power, we need to decide that his actions will trigger real sanctions… It is only by punishing presidents who exploit the clemency power that we can uphold the rule of law, and–ultimately–preserve and defend our Constitution.”