Members of Congress say they want to review the president’s pardon authority after Presidents Trump and Biden issued controversial pardons Monday. There’s little Congress could do however, because both the constitution and Supreme Court precedent make clear the executive’s power to forgive is broad. 

The constitution places only two parameters on the president’s pardon power. 

Article II, Section II, Clause one states, “….he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.”

First, “Offences against the United States” means the president may not pardon someone for a state crime or a federal civil offense. 

Second, the president cannot pardon in cases of impeachment, which the constitution makes clear is a legislative branch authority. 

The Supreme Court ruled in its 1886 Ex parte Garland decision that, aside from those two restrictions, a president’s pardon power is “unlimited”, extends to “every offence known to the law” and may be exercised “either before legal proceedings are taken, or during their pendency, or after conviction and judgment.” 

The 1974 decision Schick v. Reed further clarified that a president may “forgive’ [a] convicted person in part or entirely, to reduce a penalty in terms of a specified number of years, or to alter it.” 

On Monday evening, President Trump issued pardons to nearly every single person convicted of crimes related to the January 6, 2021 riot at the Capitol. Earlier in the day, President Biden pardoned members of his immediate family for crimes that may have been committed dating back to 2014. 

Members of Congress contend there may have been an overreach, even if on a partisan basis. 

Sen. Thom Tillis: “Maybe we need to go back and look at the contours of the authority that future presidents have around pardoning,” 

Sen. Chris Murphy, D-Conn., told The Hill.  “It’s probably time for us to take a look at the way the pardon system is being used.”

The Supreme Court has also ruled that the pardon authority is not subject to legislative control, nor can Congress limit the effect of a pardon. 

The only place Congress can really make a difference is in the budget, where it can either increase or reduce funding for positions in the Justice Department that review clemency petitions. 

Technically, Congress could impeach a president if it believes the pardon power was abused. Lawmakers could also pass a constitutional amendment restricting the power, an extraordinary undertaking that would require approval from two-thirds of the states.