Does the concept of presidential pardon have a justification in terms of separation between the executive and the judiciary? (France) First of all, I have no experience in Law, I was just "philosophically" interested by a question related to it. I hope it is not off topic. The French President François Hollande is considering granting apresidential pardon to some French woman. My question is the following: how does the concept of presidential pardon have a justification in terms of separation between the executive and the judiciary? Why, philosophically, a president or any elected politician would have a right to directly influence justice decisions as in the case of presidential pardon? What is the idea behind that? I expect that the reason may vary depending on the country where it does exist.
The simple legal answer is that the President has this power because the law gives it to them. Historically, the right of the head of state to grant pardons is a legacy of autocratic monarchical rule: this was a power that kings and queens had over their subjects. In France, this power ended with the monarchy during the French revolution but was reinstated by Napoleon, himself an autocratic monarch, and it has remained in the various incarnations of the French legal system ever since. Here is an examination of the concept in various jurisdictions. The concept of separation of powers is a much more recent concept. In particular, the tripartite separation into administrative, judicial and legislative power can be traced to Montesquieu in his The Spirit of the Laws in 1748. This Enlightenment point of view crept into many political systems, however, the specific expression of it reached full flower in the establishment of the United States. It is worth noting, that pardons at both state and Federal level are part of US law vesting in the Governor (or some other member of the executive) and the President respectively. The tripartite separation is supposed to provide checks and balances with each arm of government serving to limit the power of the other two. In this context, it is perfectly reconcilable that the executive branch should have the power to intervene and correct "mistakes" made by the judiciary just as the legislative branch does by being able to change the law in the light of judicial interpretation of existing law. In effect, the executive can correct "mistakes" in individual cases looking backwards and the legislature can correct "mistakes" in general going forward (the do in fact have the power to make laws retrospective [backwards looking] and specific but they tend not to do so).
There is a potentially infinite regress of questions regarding the constitutionality of restrictions imposed under these "emergency" circumstances. The basic legal principle is clearly established: laws restricting fundamental rights are subject to strict scrutiny. The specific details of a particular law and surrounding circumstances have yet to be discovered by the courts. If it is necessary to the purpose of saving lives that meetings of more than 10 people be prohibited, then the "compelling interest" test probably has been satisfied. That is basically a medical question, and the courts have a limited interest in scientific controversies, instead they are interested in whether people who make legal decisions do so rationally (is it reasonable to think that such limits would accomplish that compelling government end). Is it reasonable to think that restrictions lasting two months are necessary? The Black Death lasted at least 4 years. In the current circumstances (very limited hard knowledge this disease), it's hard to say what government actions could not be excused based on necessity. Summary execution is, at least in the current knowledge context, probably not going to pass strict scrutiny. As already explained in other thread on the topic, there is no "churches are above the law" constitutional provision. The appropriate question in the Florida case is not about the First Amendment, it is about the Due Process clauses – is the arrest lawful? We will, no doubt, see. On the face of it, he violated the law, so he can be arrested. I understand that there is a team poking holes in the order.
Nobody so far has discussed Electoral law e.g. Representation of the People Act 1983 There are various clauses that may be relevant, one of which is: A voter shall be guilty of bribery if before or during an election he directly or indirectly by himself or by any other person on his behalf receives, agrees, or contracts for any money, gift, loan or valuable consideration, office, place or employment for himself or for any other person for voting or agreeing to vote or for refraining or agreeing to refrain from voting. Subsection 2 similarly makes it an offence to offer employment to induce any voter to vote or refrain from voting but somewhat less concisely. I believe this would make such a contract unenforceable.
This is technically an open question, but there is a general consensus that Consovoy's argument is unprecedented and unsupportable. If the president can be dragged into civil litigation over private matters in the middle of his presidency, Clinton v. Jones, 520 U.S. 681 (1997), it seems unlikely that the courts would give him a pass on prosecution for a midterm murderous rampage. If Consovoy is right, though, the answer would have to be that yes, Trump could avoid prosecution. Posing the question that way sort of helps to highlight the problem with Consovoy's theory. As I understand it, Consovoy's argument is that impeachment is the only remedy for crimes committed by a president. But if the president can just kill of Congress, there's no one left to impeach him, leaving the country with no way to remove him. So again, the answer is almost certainly no.
The President has the power under Article II of the U.S. Constitution to faithfully execute the laws enacted by Congress. Any power that the President has to regulate international travel of non-U.S. citizens arises from statutes enacted by Congress that give the President (or the executive branch more generally) that authority. Immigration laws, in practice, give very substantial discretionary authority to the President, and public health laws probably also do so. I don't have chapter and verse to cite to you regarding which specific statutes provide that authority, without considerably more research, but that is the general idea. The primary statute regulating immigration is the Immigration and Nationality Act of 1965 (and more generally, Title 8 of the United States Code). It is not uncommon in the United States for there to be disputes over how much discretion a President has under a particular statute in the United States, because unlike parliamentary systems of government, the execution of laws and the passage of law is split between different branches of the federal government in the Presidential system of the United States, rather than being fused with a Prime Minster who serves at the pleasure of the legislature.
First, I don’t believe the author is using quotation marks to indicate an actual quotation, it is being used for emphasis and to group the words as a concept. That concept is that while it may seem undemocratic for a judge to overturn a law enacted by a democratically elected assembly, the “higher democracy” is that it protects the democratic institutions themselves by limiting the power of the legislature to what the higher law of a constitution allows.
The question largely does not come up in the US, but it does in some officially bilingual jurisdictions such as Canada. If someone ventures to paraphrase law of the US into Farsi or Spanish, that could be a kind act on their part, but it has no official status: only the law as enacted has legal weight. Though India is officially multilingual in many ways, acts of parliament must be in English – the English version is authoritative, even though translations may be made. In Canada, both English and French versions are official; so in the case of R. v. Collins, [1987] 1 SCR 265, a conflict is detected: The French version of the text, which translates could bring the administration of justice into disrepute, is less onerous than the more stringent English version, "would bring the administration of justice into disrepute", and consequently is preferable in that it better protects the right to a fair trial (invoking a separate principle of interpretation, lenity, in case of ambiguity). There is some indication that EU directives can be translated after the fact, so that the 1979 Wild Birds Directive was translated from English into Slovak some years later. In the case of the EU, the Directorate-General for Translation shoulders that responsibility.
Strictly speaking, that principle isn't even true everywhere in the US. The maxim "nulla poena sine lege" (i.e. "no punishment without a prior penal statute") was historically applicable to civil law systems, such as are found in continental Europe. In common-law systems, there was never a tradition in which a crime wasn't a crime unless it violated a penal law, because crimes themselves were traditionally defined by court precedent instead of by statute. In US federal court, the only allowable common-law offense is contempt of court. This is due to a court decision (United States v. Hudson), in which the Supreme Court ruled that federal courts do not have the constitutional authority to hear a case in which someone is accused of committing a common-law crime. Even so, and even though there is a federal contempt statute, the Supreme Court has ruled that contempt is an inherent power of any court, and statutes around it only regulate the power (but the power would be there even without a statute). At the state level, some states have explicitly passed laws saying something is not a crime if it doesn't violate the penal code (although this doesn't necessarily apply to contempt); see section 6 of the California Penal Code for an example. In other states, like Florida, common-law crimes still exist; Florida has a statute saying that any common-law offense is still a crime unless a statute has explicitly covered that same subject matter (section 775.01), and specifies a generic penalty for anything which is an offense at common law and not addressed by any Florida penal statute (section 775.02). While this is sort of statutory (as it's a statute giving the penal provision), it's also basically not (as no statute has to say "X is illegal," because it's enough that English common law makes X illegal).