powers of the Congress relating to Immigration, relating to Interstate Commerce, relating to temporary or permanent immunity from the criminal laws, either partial or entire, and we do not believe that we have in any way impaired the pardoning power in the final analysis under our bill when that power is exercised by the President. It is complete and final. We do nothing whatever to condition it, delay it, or in any way change its nature or form. The President has laid down the conditions upon which he is willing to grant pardon, and those conditions are unimpaired by anything we have done. We have simply facilitated the way in which the President's pardoning power may be applied and, therefore, we consider the measure entirely constitutional.

We will take the precaution of having a legal memorandum available which we will offer for the record in due course. If the chairman will advise us how long the record will remain open, we will supply it in time.

Mr. KASTENMEIER. I will advise that the record will be open 10 days following tomorrow, which is the last scheduled day of hearings on the matter, and we would be most pleased to receive that memorandum.

Senator JAVITS. I thank the Chairman. [The material referred to follows:]

THE LIBRARY OF CONGRESS-CONGRESSIONAL RESEARCH SERVICE

THE POWER OF CONGRESS TO ENACT AMNESTY LEGISLATION

The Constitution does not contain the word "amnesty." The President's power, as provided in the Constitution, is limited to granting "Reprieves and Pardons." The uncertainty which has resulted from the exact meaning of both "pardon" and "amnesty" and the distinction, if any, between them, has confronted courts in the past. The result has been that the distinction between amnesty and pardon is of no practical importance. “. . . [E]xcept that the term [amnesty] is generally employed where pardon is extended to whole classes or communities, instead of individuals, the distinction between them [amnesty and pardon] is one rather of philological interest than of legal importance." More specifically, "Amnesty is defined by the lexicographers to be an act of the sovereign power granting oblivion, or a general pardon for a past offence, and is rarely, if ever, exercised in favor of single individuals, and is usually exerted in behalf of certain classes of persons who are subject to trial, but have not yet been convicted.""

Further, "Pardon includes Amnesty."

While the precise question of whether the Congress possesses the power to enact amnesty legislation has never been directly raised before the Supreme Court, there have been cases wherein the Court chose to indicate a possible position by way of comment.

In 1884, the Court was asked to declare unconstitutional a congressional act which authorized the Secretary of the Treasury to "mitigate or remit any fine,

1 "The President shall . . . have power to grant Reprieves and Pardons for offences against the United States, except in cases of Impeachment." Art. II, § 2. 2 Brown v. Walker, 161 U.S. 591, 601 (1895).

3 Knote v. U.S., 95 U.S. 149, 153 (1877). But see Burdick v. U.S., 236 U.S. 79. 94-95 (1914), where the Court cites Knote with qualification: "They [amnesty and pardon] are of different character and have different purposes. The one overlooks offense: the other remits punishment. The first is usually addressed to crimes against the sovereignty of the State, to political offenses, forgiveness being deemed more expedient for the public welfare than prosecution and punishment. The second condones infractions of the peace of the State." See also, Russ, Does The President Still Have Amnestying Power, 16 Mississippi Law Journal 127, 128 (1944).

Brown, supra, at 601-02. See also U.S. v. Hughes, 1975 F. 238, 242 (D.C. Pa. 1892): "Pardons are granted to individual criminals by name: Amnesty to classes of offenders or communities. They differ, not in kind. but solely in the number they severally affect." U.S. v. Klein, 80 U.S. (13 wall) 128, 147 (1871).

penalty, forfeiture, or disability" arising from the violation of revenue laws.' The appellant argued that:

". . . the power of the President to grant pardons includes the power to remit fines, penalties, and forfeitures imposed for the commission of offences against, or for the violation of the laws of, the United States; that such power is in its nature exclusive; and that its exercise, in whatever form, by any subordinate officer of the government, is an encroachment upon the Constitutional prerogatives of the President." (emphasis added).

The Court acknowledged that the President indeed, "under the general unqualified grant of power to pardon offences, may remit fines, penalties and forfeitures of every description under the laws of Congress." But the Court continued:

"But is that power exclusive, in the sense that no other officer can remit forfeitures or penalties incurred for the violation of the laws of the United States?"

10

The Court, noting that Congress, from the adoption of the Constitution, had asserted its right to invest the Secretary of the Treasury with such power as was being tested in the case, affirmed the lower court decision. The Court, in so deciding, appears to have affirmed the proposition that the grant of pardoning power to the President by the Constitution, is not so exclusive as to preclude the Congress from authorizing the Secretary of Treasury to remit fines and penalties. The Supreme Court commented more directly on the matter in an 1896 case, Brown v. Walker." The facts of Brown involved a railway employee, called to testify before a grand jury which was investigating the activities of the Allegheny Valley Railway Company. In response to direct questions, the employee, Brown, refused to answer, on the ground that the answer would tend to incriminate him. He was fined and placed in custody until he was willing to testify. On dismissal of a subsequent writ of habeas corpus. Brown appealed to the Supreme Court.

The issue before the Court was whether a Federal statute in effect, granting immunity from prosecution for those willing to testify, was sufficiently protective so as to remove from Brown the protective cloak of the 5th Amendment right to remain silent. Analogizing the protection offered by the Act to that of an "act of general amnesty" the Court thus engaged in a general discussion of Congressional power:

"The act of Congress in question securing to witnesses immunity from prosecution is virtually an act of general amnesty, and belongs to a class of legislation which is not uncommon either in England, (2 Taylor on Evidence, § 1455, where a large number of similar acts are collated), or in this country. Although the Constitution vests in the President 'power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment,' this power has never been held to take from Congress the power to pass acts of general amnesty, and is ordinarily exercised only in cases of individuals after conviction, although, as was said by this Court in Ex parte Garland, 4 Wall. 333, 380, it extends to every offense known to law, and may be exercised at any time after its Commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgment." (emphasis added) 12

The Court ultimately found the Statute sufficiently protective and agreed with the lower court that Brown was deprived of the otherwise operable Fifth Amendment right to silence.

While the facts of Brown are readily distinguishable from those which may be expected to attain to the issue of Congressional Amnesty and contemporary dissidents of the Vietnam War, the case has been referred to by several authorities

The Laura, 114 U.S. 411, 414 (1884).

The Laura, supra at 413.

8 The Laura, supra. at 413-414.

The Laura, supra. at 414.

10 The Laura, supra. at 414, 415.

11 161 U.S. 591.601.

12 Brown, supra., at 601. The Court cited The Laura, at 601. See also Burdick v. U.S., 236 U.S. 79, 95 where, without citing Brown, the Court, per obiter asserts: "Amnesty Is usually general, addressed to classes or even communities, a legislative act... (emphasis added)

as support for the contention that Congress does have the authority to enact amnesty legislation."

14

15

Only one subsequent federal, majority opinion case, has cited Brown v. Walker for the proposition that Congress has the authority to enact amnesty legislation. In 1925, the Circuit Court of Appeals for the Ninth Circuit, in holding that the Probation Act of 1925 did not infringe the President's pardoning power, cited Brown to the effect that:

"It is also held that Congress may grant amnesty to offenders of a certain class."

While occasional, unrelated references to the amnesty discussion in Brown occur," the substantive issue of congressional authority in relation to amnesty, has not arisen in any case which has required a definitive determination of the question.

In addition to Court decisions on the question of congressional authority, it should be borne in mind that Congress, itself, has, on several prior occassions, in fact enacted amnesty legislation. None of the Acts resulted in litigation on the precise issue of congressional authority. On July 17, 1862, Congress authorized the President to extend pardon and amnesty to persons participating in the rebellion. When President Lincoln granted the amnesty of December 8, 1863, he disclaimed necessity for the authorization." He began his proclamation by saying:

18

"Whereas in and by the Constitution of the United States it is provided that the President shall have power to grant reprieves and pardons . . and very plainly showed that he based his authority to grant the proclamation upon the provisions of the Constitution and not upon the act of Congress." Congress later repealed its authorization."

In 1872. Congress enacted its first public law granting an amnesty." The General Amnesty Law of 1872 removed all political disabilities imposed by the third section of the Fourteenth Amendment from all persons except certain Senators and Representatives and civil and military personnel. A similar but more comprehensive measure was enacted in 1898. While these two acts may stand as examples of the Congress having already engaged in amnesty legislation, it should be noted that the authority for both bills derived from section three of the Fourteenth Amendment itself." This fact could negate any reference to the acts as

59 Am. Jur. 2d Pardon and Parole § 20 (1971): "although the power to grant reprieves and pardons may be vested in the chief executive, this has never been held to take from the legislature the power to pass acts of general amnesty," Humpert, The Pardoning Powers of the President 30 (1941): "The Pardoning Power is not vested exclusively in the executive. Both the National Congress and the State legislature grant amnesties." At 43: ". the Supreme Court later decided that Congress might grant amnesties prior to conviction, notwithstanding the authority of the President to exercise, free of legislative restraint, his pardoning power in the form of amnesty."; W. W. Willoughby, The Constitutional Law of the United States (2nd ed. 1929). III 1429: "Though Congress has thus no power to limit in any way the exercise of the pardoning power by the President, it may itself exercise that power to a certain extent, if exercised prior to conviction. Thus acts of Amnesty have been held valid." Note, 34 Lawyers Reports Annotated 254 (1905): "While the special Acts of Congress granting pardon or amnesty have not been brought into the Courts for an adjudication of their constitutionality, there is a declaration in favor of the Power of Congress to pass Acts of general amnesty

14 Prior to Brown a district court in Illinois discussed the same statute at issue in Brown and flatly declared "It is a statute of pardon." U.S. v. James, 60 F. 257, 265 (D.C.N.D. Ill. 1894). The Court so decided without discussing Congressional power to enact such a statute in light of the constitutional grant of pardoning power to the President.

15 A dissenting opinion of Justices Holmes and Brandeis in Springer v. Philippine Islands, 277 U.S. 189, 211 (1928) cited Brown as follows: "It [Congress] has granted an amnesty, notwithstanding the grant to the President of the power to pardon."

16 Nir v. James, 7 F. 2d 590, 593 (9th Cir. 1925). See also U.S. v. Price, 96 F. 960 (D.C. Kv. 1899) where the exact statute involved in Brown was at issue and the Court consistently referred to the immunity provision thereof as granting "amnesty," with a citation to Brown. Likewise see U.S. V. Moore, 15 F. 2d 593 (D.Č. Ore. 1926) analogizing Congressional grant of immunity to "Amnesty."

17 In Re Shead, 302 F. Supp. 560, 563 (D.C.N.D. Calif. 1969): U.S. v. Reina, 273 F. 20 234, 235 (2d Cir. 1959); U.S. v. Swift, 186 F. 1002, 1010 (D.C.N.D. II. 1911).

1 12 Stat. 592 (1862).

19 Humpert. The Pardoning Power of the President 40 (1941).

20 Note, 34 Lawyers Reports Annotated 251, 253 (1905).

14 Stat. 377. See 40th Cong., 3d session, S. Rept. No. 239 for the Senate Judiciary Committee's opinion that President was without power to grant amnesty absent Congressional authorization.

22 17 Stat. 142 (1872).

23 30 Stat. 432 (1898).

24"... But Congress may by a vote of two thirds of each house, remove such disability."

precedent for the proposition that it is within the inherent power of Congress to enact amnesty legislation.

It can be seen that the indirect nature of the Supreme Court's Comments in Brown together with a dearth of case law subsequent thereto, causes at least a question as to the weight which a contemporary court would attach to Brown. JOHN D. SARGENT,

Legislative Attorney,
American Law Division.

Mr. KASTEN MEIER. Addressing a question to you both, and I appreciate the testimony-it is concise, to the point, and edifying for the committee.

In terms of the constitutional issue, the last question touched by Senator Javits, Senator Javits was careful to say that whatever one might say about the constitutional issue of powers of the Presidency, and the Presidential pardon, that even taking the view that this is exclusively a Presidential power, it is your point of view that your legislation is constitutional because it in no way limits Presidental authority to exercise clemency and recognizes this Presidential authority. Your bill is a mere extension, or statutory expression, of the power exercised by the President. Is that more or less correct?

Mr. JAVITS. Well, Mr. Chairman, if I may-my answer to that is flatly "Yes," but I would also like to draw an analogy with the war powers resolution, with which I had something to do which is now completely recognized by the President, and he is actually complying with it.

The analogy is that we cannot impair, for example, his authority as Commander-In-Chief to rescue Americans from a war zone, but we can require certain notification to us. We can determine essentially the management of the armed services, the expenditure of money for the armed services. In other words, we can determine the methodology but we cannot deprive him of his fundamental authority as Commander-In-Chief, and so we haven't. And, as I say, the President has not challenged its constitutionality. He is complying with it. And I think this is an analogy.

We are proposing a methodology by which the clemency power may be availed of, period, just as the President, for example, couldn't have set up this Clemency Board unless we gave him the money so he could do what is his constitutional right to do but which still we can facilitate if we choose.

It is always an open question. Suppose we deny him the money, and he says he needs it for his partisan purposes. I think that would represent a constitutional struggle, and again an analogy with the war powers resolution in the present situation. I believe that when the President uses, say, a company of Marines, or thereabouts to bring out people out of Phnom Penh, even though there are statutes which say he may not use money for any armed services purpose in Cambodia, I believe the courts would sustain him because somehow or other he has to have the way in which to exercise the authority that the Constitution gives him. But if he is going to get us into a military operation involving-I am just going to make it extreme, because there are many fine shadings in between-a division in combat with air cover, and so forth, obviously, the law saying you don't have the money, or you may not use the money for that purpose would absolutely control, and so would the war powers resolution saying that unless we give him new authority, he has only a very limited authority to lead those troops in combat.

So I think it is reconcilable under the Constitution in very much the same way that we are doing in this bill.

Mr. KASTEN MEIER. I would like to reach a little broader issue, that is, whether you believe that Congress has coexistent constitutional authority to grant any affirmative act of amnesty or clemency. Does Congress, in and of itself, have, in your view, authority to enact another bill, which might be outside the parameters of what the President has entered into?

Mr. JAVITS. Yes, but it would, of course, have to be law, either signed by the President, or enacted by the Congress with the necessary twothirds over a veto. But that would involve the power of the Congress to grant immunity from prosecution which is a very different power but in its impact upon the individual comes to the same thing.

Now, many things, however, might follow en train and that is if someone has been convicted, a loss, for example, of various rights as a citizen might ensue and the immunity statutes, that is, the immunity from prosecution, would not necessarily relieve the individual of that unless specifically so provided. But Congress could act using its power to grant immunity from prosecution, to restore the rights of citizenship, and otherwise, in effect, attain the same results.

Mr. KASTEN MEIER. Precisely.

Mr. NELSON. Mr. Chairman, may I

Mr. KASTENMEIER. Senator Nelson.

Mr. NELSON. I would like to ask, Mr. Chairman, to have printed in the record a legal note from the Library of Congress on the power of the Congress to enact amnesty legislation which involved a criminal case, but in any event, the Court in that case back in 1890, said:

Although the Constitution vests in the President power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment, this power has never been held to take from the Congress the power to pass acts of general amnesty, and is ordinarily exercised only in the case of the individual after conviction.

I would ask that this be printed at the appropriate place.

Mr. KASTENMEIER. Without objection. The legal note referred to by Senator Nelson will be received.

I would like to ask, as far as S. 1290, your Senate bill, are there House cosponsors of that approach as far as you know at this time? Mr. NELSON. We have talked to some Members, but so far as I know it has not been introduced on the House side.

no.

Mr. KASTENMEIER. There is no House counterpart at this time? Mr. NELSON. No. I understand there will be, but as of now, Mr. KASTEN MEIER. Yes. What is your view with respect to the termination of the President's program? Why do you feel the program ought to be extended? Do you have an expectation that there will be considerable additional participation if the program were to be reopened? What was the purpose in extending the program as you see it? Mr. NELSON. Well, one, I don't think-if the program has merit, which I believe it did have and does have, I don't know what the matter of a calendar date has to do with its merits. If it has merit, it has merit, and it ought to continue giving those who want to take advantage of it the opportunity to do so. I think the Clemency Board-Mr. Goodell is satisfied that there are a whole lot of people yet in this country who don't understand the provisions, haven't been informed about them,