The President’s Pardon Power and Legal Effects on Collateral Consequences
Released: 2016-07-26T00:00:00

C hief Justice Marshall of the U.S. Supreme Court defined a presidential pardon as "an act of grace, proceeding from the power entrusted with the execution of laws, which exempts the individual, on whom it is bestowed, from the punishment the law inflicts for a crime he has committed." Indeed, the President's power to pardon is descended from authority that had been vested in English kings since at least the eighth century, and has been described as a power "exercised from time immemorial by the executive of that nation whose language is our language and to whose judicial institutions ours bear a close resemblance." The exercise of executive clemency is an extraordinary remedy, as several thousand petitions are submitted each year to the President and few are granted.

This report briefly reviews the historical underpinnings of the text of the Pardon Clause of the U.S. Constitution before delving into the types of pardons the clemency power includes, when pardons may be issued, and how pardons are granted. The remainder of the report analyzes the effect of a presidential pardon on collateral consequences, which are generally considered the post-sentence civil penalties or disqualifications that flow from a federal conviction. Because full presidential pardons are not often granted, also discussed in the report are some alternative ways in which a former federal felon may have his or her civil rights restored and certain legal disabilities removed absent a pardon. Lastly, the report covers what role, if any, Congress may play in defining the scope of the pardon power and its effect on collateral consequences.

Pardon Power and Origins

Article II, Section 2, Clause 1 of the Constitution provides the following: "The President … shall have Power to Grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment." The language of the clause explicitly sets forth the limits of the federal pardon power. First, the pardon power is limited to "Offences against the United States," which prevents the President from intruding upon state criminal or civil proceedings. Second, the pardon power does not extend to "Cases of Impeachment," which prevents the President from interfering with Congress's power to impeach.

The establishment of the pardon power in the Constitution was derived from English custom and the view of the Framers that "there may be instances where, though a man offends against the letter of the law … peculiar circumstances in his case may entitle him to mercy." Moreover, this power was properly vested in the President, according to Alexander Hamilton, as "it is not to be doubted that a single man of prudence and good sense, is better fitted, in delicate conjunctures, to balance the motives, which may plead for and against the remission of the punishment, than any numerous body whatever." In determining that the President should exercise the pardon power, the Framers further decided that minimal limitations should be placed on the power. For instance, the Framers rejected a proposal that the Senate have consent power over pardons, as well as Edmund Randolph's amendment that treason should be excepted from the pardon power.

Types of Pardons

But for the limitations articulated in the Constitution, the President's authority to grant pardons for federal offenses is essentially unfettered. The clemency power conferred upon the President gives him "plenary authority … to 'forgive' the convicted person in part or entirely, to reduce a penalty in terms of a specified number of years, or to alter it with conditions which are in themselves constitutionally unobjectionable." There are five specific types of clemency recognized under American law: (1) pardon; (2) amnesty; (3) commutation, or the substitution of a milder punishment for the one imposed by the court; (4) remission of criminal fines and forfeiture; and (5) reprieve or the temporary postponement of punishment. Pardon and amnesty are the broadest forms of clemency, and carry virtually identical effects under American law. Commutations are occasionally referred to as conditional pardons, but they do not have the same legal effect of a full pardon. As described by one court: "'Pardon' exempts from punishment, bears no relation to term of punishment and must be accepted or it is nugatory; while 'commutation' merely substitutes lighter for heavier punishment, removes no stain, restores no privilege, and may be effected without consent and against the will of the prisoner." With the exception of the section " How Pardons Are Granted ," which includes a discussion of standards for commuting sentences, this report discusses only full pardons, which may be unconditional or have conditions attached, as mentioned below.

When Pardons May Be Issued

The Supreme Court has stated that the pardon power "may be exercised at any time after [the commission of an offense], either before legal proceedings are taken, or during their pendency, or after conviction and judgment." Indeed, Presidents have exercised the pardon power quite freely, granting pardons to specific offenders for a broad range of crimes, some of which may stem from a series of related events. For example, President Jefferson pardoned all those convicted under the Alien and Sedition Acts. Presidents Lincoln and Johnson, after the Civil War, granted amnesty to anyone who assisted the Confederacy, on the condition that such recipients voluntarily take an oath to uphold the Constitution. In the modern era, President Ford issued a pardon to President Nixon "for all offenses … which he … has committed or may have committed or taken part in," precluding any prosecution of President Nixon related to the Watergate Scandal. Likewise, President George H. W. Bush granted "full, complete, and unconditional pardons" to several high-ranking officials who had either pleaded guilty, been convicted, or were facing trial for having made false statements to Congress in relation to the Iran-Contra affair.

How Pardons Are Granted

As a practical aid to the consideration of requests for presidential clemency, the Office of the Pardon Attorney within the Department of Justice (DOJ) is charged with accepting and reviewing applications for clemency, and preparing recommendations as to the appropriate disposition of applications. DOJ has issued regulations that set forth the process for persons "seeking executive clemency by pardon, reprieve, commutation of sentence, or remission of fine." The regulations provide that a petition for a pardon should not be filed "until the expiration of a waiting period of at least five years after the date of the release of the petitioner from confinement or, in case no prison sentence was imposed, until the expiration of a period of at least five years after the date of the conviction."

After a petition for executive clemency is received, the Pardon Attorney conducts an investigation by employing the services of appropriate governmental agencies such as the Federal Bureau of Investigation (FBI). Subsequently, the Pardon Attorney presents the petition and related material to the Attorney General via the Deputy Attorney General, along with a recommendation as to the proper disposition of the petition. From there, the Attorney General reviews the petition and all related information, and makes the final decision as to whether the petition merits approval or disapproval by the President. A written recommendation is submitted to the President.

Notably, DOJ's regulations on considering pardon petitions do not appear to impose rigid restrictions on the Pardon Attorney, but, rather, are identified as being advisory in nature. Courts have stated that these regulations are "primarily intended for the internal guidance" of DOJ personnel. Moreover, the process established by the aforementioned regulations does not have any binding effect, does not create any legally enforceable rights in persons applying for clemency, and does not circumscribe the President's "plenary power under the Constitution to grant pardons and reprieves" to any individual he deems fit, irrespective of whether an application has been filed with the Office of the Pardon Attorney.

Standards for Granting Clemency

DOJ has articulated its standards for reviewing pardon petitions. Factors taken into consideration include (1) post-conviction conduct, character, and reputation; (2) seriousness and relative recentness of the offense; (3) acceptance of responsibility, remorse and atonement; (4) need for relief; and (5) official recommendations and reports.

With respect to reviewing petitions related to a commutation of sentence, DOJ's traditional position has been that it is an "extraordinary remedy that is rarely granted." Factors for commutation of sentence include "disparity or undue severity of sentence, critical illness or old age, and meritorious service rendered to the government by the petitioner, e.g., cooperation with investigative or prosecutive efforts that has not been adequately rewarded by other official action." Also taken into consideration is "the amount of time already served and the availability of other remedies (such as parole) are taken into account in deciding whether to recommend clemency."

In April 2014, however, DOJ announced a new clemency initiative, where it announced six criteria the Department would consider when reviewing clemency applications for commutation of sentence. The Department announced that it would prioritize the clemency applications of federal inmates who meet the six factors. These factors are that the applicant (1) is currently serving a federal sentence in prison and, by operation of law, likely would have received a substantially lower sentence if convicted of the same offense(s) today; (2) is a nonviolent, low-level offender without significant ties to large-scale criminal organizations, gangs, or cartels; (3) has served at least 10 years of his or her prison sentence; (4) does not have a significant criminal history; (5) has demonstrated good conduct in prison; and (6) has no history of violence prior to or during his or her current term of imprisonment. An applicant who does not meet these criteria may still apply for commutation of sentence, but will be considered under the "standard principles" described above. Under this initiative, according to DOJ, President Obama appears to have received more petitions for commutation than his predecessors.

Warrants of Pardon

For a pardon to become legally effective, it appears that a warrant of pardon must be physically delivered to the recipient. In United States v. Wilson , Chief Justice Marshall declared that a " pardon is a deed, to the validity of which delivery is essential, and delivery is not complete without acceptance." A recipient may reject the pardon , and if it is rejected, the court has no power to force it on him. Moreover, a pardon is a private act "and not officially communicated to the court." A warrant of pardon must be pleaded like any other private instrument before any court may take judicial notice thereof. The Court re emphasized the notion of delivery and acceptance in Burdick v. United States , where it upheld the petitioner's right to refuse a pardon and instead assert his constitutional right against self-incrimination. The Burdick Court stressed that it had already rejected the contention that pardons have automatic effect by their "mere issue , " and stated that the petitioner could refuse the pardon because i ts acceptance may involve "consequences of even greater disgrace than those from which it purports to relieve." Under the current DOJ regulations, a warrant of pardon is mailed to the petitioner.

A warrant of pardon may also be revoked at any time prior to acceptance and delivery. In In re De Puy , a federal district court addressed a situation where a pardon issued by President Andrew Johnson on March 3, 1869, was revoked on March 6, 1869 , by incoming President Ulysses S. Grant. The court held that the pardon had been properly withdrawn, as it had not yet been delivered to the grantee, a person on his behalf, or to the official with exclusive custody and control over him. In an analogous situation, President George W. Bush sent a master warrant of clemency to the Pardon Attorney on December 23, 2008, for 19 individuals. One day later, the President "directed the Pardon Attorney not to execute and deliver" a pardon to one of the individuals, Isaac R. Toussie, a real estate developer who had ple a d ed guilty to mail fraud and using false documents to recei ve government-insured mortgages. It had been disclosed that Mr. Toussie's relatives had contributed significant sums of money to various politicians before his clemency petition was filed with the White House. Because Mr. Toussie's clemency application had only been reviewed and rec ommended by White House Counsel , the President directed that Mr. Toussie's application should be reviewed by the Pardon Attorney pursuant to the DOJ guidelines, discussed above, before making a decision on whether to grant clemency.

Legal Effects of Receiving a Pardon

The Supreme Court in the 19 th century had an expansive view of the nature and effect of a pardon. In Ex parte Garland , the Court, when considering the effect of a full pardon, stated the following:

A pardon reaches both the punishment prescribed for the offence and the guilt of the offender; and when the pardon is full, it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offence. If granted before conviction, it prevents any of the penalties and disabilities consequent upon conviction from attaching; if granted after conviction, it removes the penalties and disabilities, and restores him to all civil rights; it makes him, as it were, a new man, and gives him a new credit and capacity.

Despite this broad view, the Court stated that a pardon "does not restore offices forfeited, or property or interests vested in others in consequences of the conviction and judgment."

The Court in Knote v. United States reiterated that a pardon " releases the offender from all disabilities [i]mposed by the offence, and restores to him all his civil rights. In contemplation of law, it so far blots out the offence, that afterwards it cannot be imputed to him to prevent the assertion of his legal rights." Since Garland and Knote , courts have consistently opined that a full par don restores basic civil rights such as the right to vote, serve on juries, and the right to work in certain professions. In other words, a pardon should generally remove any collateral consequences that may legally attach to a person as a result of the commission or conviction of the pardoned offense. However, as discussed below, the recipient of a pardon may still be unable to exercise certain rights or engage in certain activities , depending on the qualifications imposed under state or federal law. This may be due, in part, to the fact that the Court, in the 20 th century, appears to have backed away from its position in Garland , that a pardon wip es away the existence of guilt.

In 1915, the Court, in Burdick v. United States , affirmed that the full pardon, had the petitioner accepted, would have "absolv[ed] him from the consequences of every such criminal act." In allowing the petitioner to refuse the pardon and instead assert his constitutional right against self-incrimination, the Burdick Court had acknowledged that a "confession of guilt [is] implied in the acceptance of a pardon." Similarly, in Carlesi v. New York , the Court concluded that a presidential pardon for a federal offense did not prevent the state from considering the pardoned offense under a state statute that permits enhanced sentencing upon the commission of a second offense. The Carlesi Court reasoned that the state's action "was not in any degree a punishment for the prior crime," and that the state's action could not be constitutionally void because it did not "destroy[] or circumscrib[e] the effect" of a presidential pardon. In 1974, the Court decided Schick v. Reed , in which it affirmed the President's authority to commute a sentence upon the condition that the prisoner not be paroled. The Court emphasized the President's plenary authority under the pardon power to reduce or alter a penalty, but the Court did not address whether such power includes erasing the underlying guilt or the conviction itself. At least one scholar has opined that these cases, from the early 20 th century to the present, demonstrate the Court's implicit shift away from its broad declaration in Garland regarding the effect of a pardon, now "suggest[ing] that a pardon does not wipe away all guilt from its recipient." Notably, Schick examined the commutation of a sentence, in which it may have been unnecessary for the Court to discuss whether the altered sentence erased the recipient's underlying guilt, as it may have been clear that the commutation did not.

Current Interpretation of the Effect of a Presidential Pardon

As one court noted, there are three prevailing views regarding the effect of a presidential pardon. The first view, following Garland , "holds that a pardon obliterates both conviction and guilt which places the offender in a position as if he or she had not committed the offense in the first place." The second view "is that the conviction is obliterated but guilt remains." In deciding the effect of pardons issued by the President or a state governor, many courts appear to adhere to this second view, as discussed below. The third view "is that neither the conviction nor guilt is obliterated."

Two decisions stemming from the pardon of high-ranking officials involved in the Iran-Contra Affair illustrate the courts' adoption of the second, hybrid view of a pardon's effect. In In re North , the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) reviewed whether the recipient of a pardon, a former Central Intelligence Agency official, could claim attorneys' fees under the Ethics in Government Act. The act authorizes a court to award certain attorneys' fees incurred by the subject of an independent counsel investigation, but only if no indictment is brought against that person. The petitioner, citing Garland , argued that the full pardon he received from President George H.W. Bush entitled him to petition for attorneys' fees under the act, notwithstanding the return of an indictment against him during the investigation. The D.C. Circuit, noting that four Justices dissented in Garland , opined that the Court "implicitly rejected" the dictum in Garland when it decided Burdick , where it had "recognized that the acceptance of a pardon implies a confession of guilt." Applying Burdick , the D.C. Circuit concluded that "[b]ecause a pardon does not blot out guilt ..., one can conclude that a pardon does not blot out probable cause of guilt or expunge an indictment." Accordingly, the court held that a pardon did not nullify the indictment against the petitioner, thereby precluding his recovery of attorneys' fees under the act.

A similar result was reached in In re Abrams , where the Court of Appeals for the District of Columbia, sitting en banc, reviewed whether the recipient of a pardon, a former official with the Department of State, could be disciplined under the District of Columbia Rules of Professional Conduct, which prohibit a lawyer from engaging in criminal acts of "dishonesty, fraud, deceit, or misrepresentation." The petitioner argued that Garland prevented the court "from considering the wrongful conduct in assessing his moral character for the purpose of bar discipline." The court, following "the virtually unanimous weight of authority," held that though the pardon set aside the petitioner's convictions and the consequences the law attached to his convictions, "it could not and did not require the court to close its eyes to the fact that Abrams did what he did." Accordingly, the court ordered the petitioner be publicly censured, as it determined that the commission of his pardoned offense could be used to assess his moral character.

Examples of Potential Effect of Presidential Pardon Under Current Interpretation

Though there may be underlying debate as to whether a pardon eliminates an individual's guilt for having committed the pardoned offense, courts generally agree that a full presidential pardon restores federal as well as state civil rights to remove consequences that legally attach as a result of a federal conviction (i.e., legal disabilities). For instance, if an individual is prevented under state and federal law from possessing a firearm due to a felony conviction, a full and unconditional pardon for the federal conviction would remove the firearm disability. Federal firearms laws, unlike other federal laws that impose collateral consequences upon conviction, specifically provide that a person shall not be considered a convicted felon for purposes of the statute if such person "has been pardoned or has had civil rights restored," unless the pardon, expungement, or restoration of civil rights expressly provides that one may not possess or receive firearms. It appears that only a handful of federal laws specifically address the effect of a pardon on one's eligibility. Yet such express provisions may not be warranted because of the long-standing principle, affirmed by the courts, that a pardon removes legal disabilities that attach as a result of one's conviction. Moreover, as discussed later, there appears to be no general federal statutory process whereby civil rights lost as a result of a federal conviction may be restored or "judicial records of an adult federal criminal conviction expunged." Therefore, a presidential pardon is essentially the only method for restoring rights under federal law, although eligibility may be regained after a defined passage of time, as discussed below.

Nevertheless, the courts' reasoning in cases such as In re North and In re Abrams demonstrates that a pardon will not preclude a court or other entity from considering the pardoned offense for certain eligibility purposes, especially where an individual's character may be reflected by the mere commission of an offense (irrespective of whether there had been a conviction). For example, a federal court of appeals upheld the Commodity Futures Trading Commission's (CFTC's) denial of an individual's post-pardon application for registration as a floor broker. The court determined that the CFTC could consider the conduct underlying the pardoned conviction in ascertaining whether the applicant would be fit to act as a floor broker. In upholding the agency's action, the court also concluded that the CFTC's denial did not violate the pardon power because its action did not further punish the applicant based on his pardoned conviction alone. Likewise, federal law authorizes the Attorney General to consider past drug-related convictions as a factor in her decision to issue a license to a manufacturer of controlled substances. Were an applicant to receive a presidential pardon for a federal drug offense, the Attorney General still could consider the pardoned offense in issuing the license because its commission may be related to the applicant's suitability for the license. If the Attorney General denied a license, it is probable that this would not violate the pardon power because the denial likely would not be construed as a further punitive legal consequence that would have otherwise stemmed from the conviction of the pardoned offense. Along similar lines, courts have held that consideration of a pardoned offense for purposes of sentencing enhancement does not violate the pardon power because such use does not undermine the effect of that pardon, nor does it "constitute separate punishment for the pardoned conviction." Accordingly, even if the recipient of a pardon were to regain eligibility for a position or program from which he was originally barred due to his conviction, it is possible that he may still be disqualified if one's character is a necessary qualification for eligibility purposes.

Restoration of Rights Without a Presidential Pardon

Given that many petitions for presidential pardons are denied, this section briefly discusses expungements and other avenues by which federal felons could potentially have some civil rights, affected by their federal criminal convictions restored absent a pardon.

Expungement of Records

As discussed, a pardon recipient may still encounter hurdles when character is a factor of eligibility because a pardon does not eliminate underlying guilt or the commission of the offense itself. T he reason it is possible for a third party to know of and consider a pardon recipient's conviction is that, according to the Office of the Pardon Attorney, a presidential pardon "does not erase or expunge the records of a conviction." Rather, the Office of the Pardon Attorney notifies, among others, the FBI so that the pardoned individual's criminal history record will reflect the grant of a pardon. As such, the conviction for which one is pardoned, along with a notation of the pardon, will continue to be reported when a background check is conducted on the pardoned individual.

The continued presence of a conviction on a person's record, notwithstanding a pardon, could still raise barriers with respect to such person's suitability. In the employment context, for example, the recipient of a pardon could face employment challenges in jurisdictions where employers are permitted to inquire into an applicant's criminal history. As a result of interpretations of the pardon power, it is possible that an employer could disqualify a person on the basis of her pardoned offense because the person's commission of the underlying offense may be considered a reflection of the applicant's character and suitability for the position. However, an expungement of one's records generally appears to go a step beyond the effect of a pardon and remove s the record of the conviction as well as the underlying guilt. Absent a pardon, s eeking an expungement may be an alternative method for poten tially re gaining civil rights or legal privileges lost as a result of a federal conviction , as an expungement would preclude the conviction from being reported on a background check and therefore potentially eliminate the barriers that a pardon recipient would face even after receiving a pardon. Notably, there may be some circumstances where an expungement of one's records may be the only way for a legal disability to be removed despite receiving a pardon. For instance, Utah provides the following: "A person who has been convicted of a felony which has not been expunged is not competent to serve as a juror." This provision appears to indicate that even if a person residing in Utah has received a pardon, he is still barred from serving as a juror unless he has obtained an expungement of his records.

As discussed above, i t is generally acknowledged that a pardon does not compel an expungement of related criminal and judicial records. At least one fe deral court has addressed this issue, declaring: "[N] o proclamation of the executive has the power and authority … to order expunction of court records under the aegis of restoring to the pardoned person 'full ... other rights.'" Unlike states, many of which outline the circumstances under which a person may petition for an expungement of records, there is no general federal statutory procedure addressing how a federal felon can seek an expungement. Moreover, the courts have described expunction as an extraordinary remedy.

Restoration of Rights by Operation of Law or Upon Application to State

A former federal felon may be able to regain certain rights, such as the ability to vote or serve on a jury, under a state's process or laws addressing the restoration of rights. This will, however, likely vary from state to state because many state laws dealing with restoration of rights do not always expressly address how state legal disabilities that attach as a result of a federal offense may be regained, absent a federal pardon.

For example, state laws determine voter qualifications for both federal and state elections, including the circumstances under which a felony conviction disqualifies a person from voting . Laws on voter qualifications range from those that impose no restriction on the right to vote—that is, permitting felons to vote from prison by absentee ballot—to those that impose permanent disenfranchisement, unless restored by executive pardon. The processes for restoring voting rights, absent a pardon, likewise vary by state, though several automatically restore voting rights upon completion of one's sentence. For example, Utah provides that a right to vote for a convicted state or federal felon is restored when (1) the felon is sentenced to probation; (2) the felon is granted parole; or (3) the felon has successfully completed the term of incarceration to which the felon was sentenced. State juror qualifications also vary by state, and the right to jury service is sometimes described as the most difficult right to regain. Many states generally indicate that a pardon will restore one's competency to be a juror. Absent a pardon, however, some states either permit ex-felons to serve on a jury upon completion of a sentence, either automatically or after a defined period of time, or require them to individually apply to the governor for restoration of rights.

Notably, there are limited circumstances under federal law where a person may regain eligibility after a certain amount of time. For example, a student receiving a federal grant, loan, or work assistance under Title 20 of the United States Code will have his eligibility suspended if convicted under federal or state law for the possession or sale of a controlled substance. However, the suspension terminates and a student may regain eligibility after a prescribed amount of time if the student meets certain conditions, such as successful participation in a drug rehabilitation program. Alternatively, federal law sometimes permits an official to grant a waiver allowing a person to be eligible notwithstanding his disqualifying conviction. For example, individuals who have committed felonies are generally ineligible to enlist in the military, except that the Secretary of the affected branch "may authorize exceptions, in meritorious cases, for the enlistment of ... persons convicted of felonies." Under these circumstances, a person who would otherwise be prohibited from participation need not have a presidential pardon in order to regain eligibility.

Role of Congress in the Pardon Power and Legal Effects on Collateral Consequences

The Court has consistently held that the President's pardon power may not be circumscribed by Congress. In Garland , the Court held that the pardon power "is not subject to legislative control. Congress can neither limit the effect of his pardon, nor exclude from its exercise any class of offenders. The benign prerogative of mercy reposed in him cannot be fettered by any legislative restrictions."

In United States v. Klein , the Court found unconstitutional a congressional provision that purported to limit the use and effect of the President's pardon. In finding that the congressional provision infringed on the President's pardon power, the Court stated: "[T] he legislature cannot change the effect of such a pardon any more than the executive can change a law." Likewise, the Court in Schick declared that the President's pardon power "flows from the Constitution alone, not any legislative enactments," and it "cannot be modified, abridged, or diminished by Congress." These judicial pronouncements appear to indicate that Congress can take no action that would limit the effect or use of a presidential pardon, nor can Congress direct how or when the President may exercise his pardon authority. Generally, Members of Congress have turned to introducing resolutions expressing the sense of Congress that the President either should or should not grant pardons to certain individuals or groups of individuals.

It is unclear, however, whether a reviewing court would reach the same conclusion were Congress to pass a measure that expanded the effect of a presidential pardon. Notably, some states have passed legislation that clarifies the effect of a state pardon. Colorado, for example, provides the following: "A pardon issued by the governor shall waive all collateral consequences associated with each conviction for which the person received a pardon unless the pardon limits the scope of the pardon regarding collateral consequences." "Collateral consequences" are defined as "a penalty, prohibition, bar, disadvantage, or disqualification, however denominated, imposed on an individual as a result of the individual's conviction of an offense, which penalty, prohibition, bar, or disadvantage applies by operation of law regardless of whether the penalty, prohibition, bar, or disadvantage is included in the judgment or sentence."

Similarly, Congress could enact a provision that reaffirms the existing principle that a presidential pardon restores civil rights and removes collateral consequences imposed under federal or state law as a result of a federal conviction, unless otherwise provided for by the pardon or by the state (with respect to state-imposed legal disabilities). However, if a congressional measure specified collateral consequences to be restored, this could be construed as limiting the effect of the pardon. By expressly reinstating some rights over others, a reviewing court could view such a measure as modifying or abridging the effect of a presidential pardon.

Moreover, it may be possible for Congress to change the current judicial interpretation by providing that a presidential pardon erases both the underlying guilt and the existence of the federal offense itself. Although the issuance of a pardon does not automatically grant an expungement of criminal records, at least one federal court has noted: "The President's power, if any, to issue an order of expunction of a criminal record must stem from an act of Congress or from the Constitution itself." As it has done with simple drug possession, Congress could require, upon application of a presidential pardon recipient, a federal court to enter an expungement order. In this way, a pardon recipient could avoid the current hurdles he or she may face when a background check is conducted or when the commission of the offense itself may be used to evaluate such person's eligibility.

Another possibility for Congress, without addressing the effect of a pardon, could be to mirror states that have passed so-called "ban the box" or "fair chance" legislation. Such measures remove the conviction history question on job applications, thereby preventing covered employers (either public or private) from considering one's criminal history until later in the hiring process. In November 2015, President Obama announced that he had directed the Office of Personnel Management (OPM) to "take action where it can by modifying its rules to delay inquiries into criminal history until later in the hiring process." OPM issued a proposed rule in May 2016 that would specify to federal agencies that "unless an exception has been requested by a hiring agency and granted by OPM, agencies cannot begin collecting background information unless the hiring agency has made a conditional offer of employment to an applicant." In the 114 th Congress, bills have been introduced that would prohibit federal agencies and federal contractors from requesting that an applicant disclose his or her criminal history record before receiving a conditional offer.