By Nick Catoggio
Friday, November 07, 2025
You can tell what sort of right-winger someone is by how
they react to Nancy
Pelosi’s retirement.
For diehard populists, it’s a “ding dong the witch is
dead” moment. The only warm feeling about the former speaker that they have is
the memory of a MAGA goon putting
his feet up on her desk on January 6.
For partisan conservatives, it’s an opportunity to use
her pragmatism as a club against the left. “Pelosi has been simultaneously a
radical but also a moderating force within the Democratic Party,” National
Review wrote in its political obituary for her. “While the party of
Nancy Pelosi was bad, the party of Zohran Mamdani will likely be even worse.”
But for the anti-Trump right (insofar as such a thing
exists outside the Dispatch break room), Pelosi’s departure is a grim
symbol of the
Duma-fication of Congress. It’s fitting that the most formidable Democratic
legislator in modern U.S. history will leave office in 2027 on the same day as the
most formidable Republican legislator in modern U.S. history. Serious
institutionalists like Pelosi and Mitch McConnell have no business in a branch
of government that no longer exists as a serious institution.
Why, just ask serious institutionalist Marjorie Taylor
Greene.
“I will praise Nancy Pelosi, she had an incredible career
for her party,” Greene said
Thursday of the woman whose caucus stripped
her of her committee assignments in 2021. “I served under her speakership
in my first term of Congress and I’m very impressed at her ability to get
things done. I wish we could get things done for our party like Nancy Pelosi
was able to deliver for her party.”
What’s
going on with Marjorie is an interesting subject, but one for another day.
It’s enough for our purposes here to note that even the fringiest Republican
lawmaker seems wistful for the lost age of Congress “getting things done.”
Under Speaker Mike Johnson—or rather, Speaker
Donald Trump—the House of Representatives hasn’t been in session in more
than a month. We’ve reached the point of decline where merely gathering would
qualify as an achievement.
How do we fix this? If we want a Congress in the spirit
of Pelosi and McConnell that’s willing to assert its institutional authority (well,
sometimes), what can be done to get the legislature back on track?
Brace yourself for the hottest take in the history of
this newsletter: How about the two parties get together and repeal the
president’s pardon power?
No kings.
At the molten core of that idea sits two problems, one
legal and one political. The legal one is that Congress can’t rescind the
pardon power by passing a bill.
The Constitution, not statutory law, grants that power to
the president in Article
II. Getting rid of it would therefore require an old-school Article V amendment
supported by two-thirds of both houses of the legislature and three-quarters
of the states. Good luck with that in a country where the Senate can’t find 60
votes to reopen the government even after food stamps have run out.
And that’s the easier of the two problems to solve.
Needless to say, there’s no universe in which lawmakers
who belong to an autocratic personality cult would dare deprive their leader of
one of his most cherished autocratic possessions. The pardon power is Trump’s
most kingly authority, both by
tradition and the fact that the Supreme Court has placed
him above the law in how he wields it. It’s also the linchpin of his friends/enemies
approach to government: If you’re at any risk of criminal trouble with the
feds, executive clemency gives our mafioso president leverage to extract from
you any corrupt favor he desires.
I suspect Trump would sooner part with his discretion
over tariffs than with his discretion over deciding who should and shouldn’t be
punished for their sins, a God-like privilege that suits his megalomania. It’s
unimaginable that Republicans in Congress or at the state level would snatch
such a precious bottle away from the man-baby-in-chief.
But what if they don’t have to?
Ron Filipkowski, the editor-in-chief of the Resistance
site MeidasTouch News, piqued my
curiosity with this
proposal on Thursday: “We really need a constitutional amendment to limit
presidential pardon power even if it is only possible to pass it after Trump’s
term. The founders obviously never envisioned any president using it this
brazenly and corruptly while remaining impervious to impeachment.”
Now that’s an idea. Repeal the pardon power—effective
January 20, 2029.
Since when do parts of the Constitution come with date
restrictions? you might wonder. Er, since always: Article I, Section 9
granted Congress the power to ban the slave trade but not before 1808, a sop to
slave states whose support was needed for ratification. More to the point, the 22nd
Amendment that’s been the subject
of so much chitchat lately exempted then-sitting president Harry Truman
from the two-term limit it set for future commanders-in-chief. That made it
easier for Democrats, Truman’s party, to support the proposal.
Congress could do the same thing tomorrow with respect to
executive clemency. I’ll even make it easy for them and write the text: “The
power to grant reprieves and pardons for offenses against the United States is
hereby repealed. But this amendment shall not apply to any person holding the
office of president when this amendment was proposed by the Congress.” Done.
Would that language stand a chance of getting two-thirds
of the House and Senate and three-quarters of the states? Let’s think this
through.
The case for repeal.
Republicans are the main stumbling block to pardon
reform. To overcome their reluctance, two things need to happen. First, the
case for reform needs to become so urgent and obvious as to be undeniable.
Second, that case can’t rest entirely—or even mostly—on how Trump has abused
his power. The cowards of the Republican establishment would sooner see the
White House empty America’s prisons than take a hard vote limiting the
president’s authority.
The first condition has been met. The second could be met
with the right messaging.
Less than a year into Trump 2.0, the case for reform is
already undeniable. The president began his term on a populist note by
pardoning the January 6 insurrectionists, which was sinister and outrageous but
gratifying to his rotten populist base, at least. Since then, however, his acts
of clemency have mostly benefited well-connected cronies with little popular
support and whose crimes have no political salience like the J6ers’ did. He’s
freeing straight-up crooks for no better reason than that he can, because he
believes his supporters deserve his protection from the law.
George Santos, for instance, became the 10th prominent
Trump loyalist to be absolved of criminal punishment for sleazy behavior
when the president commuted
his sentence last month. This week brought another new low when Republican
Glen Casada, the former speaker of the House in Tennessee, and his top aide were
spared multiyear sentences in federal prison for their own corruption. A
few days before that, Trump pardoned Changpeng Zhao, the former CEO of the
cryptocurrency firm Binance—whose company happens to have boosted
a Trump venture. When pressed on why he freed Zhao, the president stupidly
replied, “I don’t
know who he is.”
Republicans in federal and state office don’t have much
to say about any of this, of course, but they’re not blind. The pardon power
has devolved from an instrument of mercy wielded to correct injustices into an
instrument of injustice itself. It’s enabling an ongoing criminal racket that’s
bound to get more brazen, depraved, and embarrassing for the country and the
GOP over the next three years. If Congress could vote to repeal it by secret
ballot, there’s no question repeal would pass.
But they can’t vote by secret ballot. So how do
Republicans repeal it without angering Trump and his fans?
Simple. By focusing on how Democrats have abused, and
will abuse, the power if it isn’t eliminated in 2029.
Whatabout.
Joe Biden inadvertently did repeal advocates a favor when
he issued his own corrupt pardons for his son and other family members. That
created a bipartisan case against executive clemency: If we’ve reached the
point of civic decline where the people will no longer punish presidents of
either side for handing get-out-of-jail-free cards to their associates, the
only solution is to take those cards away. And so the Republican script for
repeal writes itself—this isn’t about stopping President Trump, it’s about
stopping the next Hunter Biden. It’s about preventing another “autopen
presidency.”
Right-wing anxiety about how the next Democratic
president might build on Trump’s abusive precedents will also come in handy
here. Having spent four years transforming the federal government into a legal
arsenal to be used against the left, Republicans understandably fear the left
turning that government to its own advantage in 2029. Repealing the pardon
power would disarm one weapon in that arsenal before Democrats get their hands
on it. This isn’t about stopping President Trump, it’s about stopping
President Gavin Newsom’s plans for revenge.
Trump might even relish being the last American chief
executive to enjoy the royal prerogatives of the pardon power, a special boy
granted a special exemption by constitutional amendment to wield an authority
that no president after 2029 will enjoy. I don’t think he cares what life after
him looks like: Whenever he’s asked about Taiwan, for instance, he boasts that
Xi Jinping has promised not to invade—during
his term. His interest in American government will end the moment
he’s no longer permitted to be its main character. He has no strong reason to
oppose a law that doesn’t affect him.
What would Democrats get out of supporting a repeal
amendment that doesn’t kick in until the end of Trump’s term, though?
For starters, they’d get the comfort of knowing that the
next Republican president won’t be able to hand out criminal impunity to
well-heeled cronies like some sort of party favor. We don’t know yet who that
president will be, but it’s very likely they’ll be a person of terrible
character and proudly so, as that’s what the right demands in its leaders as proof
of their willingness to “fight.” President J.D. Vance might issue a corrupt
pardon now and then, not because he wants to, but simply to satisfy his base
with the sort of reptilian vice-signaling it craves.
Taking up a repeal amendment would also throw a spotlight
on future Trump pardons, doing political damage to the GOP. Each time the
president springs another loathsome criminal crony from prison, voters will
remember that he’s behaving so unethically that an honest-to-God change to
the Constitution is needed to make sure it never happens again. The fact
that he would continue to issue dubious acts of clemency—and he would—while an
amendment to prevent such things works its way through the states would show
Americans how rotten he is. Nothing can shame him into behaving better, not
even a bipartisan compromise to end pardon abuses by law.
But if those reasons aren’t compelling enough for
pro-repeal Democrats, it’s really this simple: There’s no way procedurally to
end the pardon power while Trump is still in office. Republicans don’t have the
courage to try to take it from him, full stop. In fact, neither party
will want to take the pardon power from the next president once they know for a
fact that that president is a member of their own party. The only way to do
repeal is prospectively, before either side learns whether it’ll control the
White House after Trump.
It’s 2029 or bust.
The case against repeal.
“Bust” is usually the smart bet in American politics,
though.
Prospective repeal of the pardon power would run into all
sorts of problems, starting with the timeline. It usually takes years for the
requisite three-fourths of states to get around to ratifying constitutional
amendments; in the case of the 22nd Amendment, for example, it took
four years from proposal to passage. If past is prologue, that means a repeal
amendment is unlikely to be on the books before the 2028 election is held.
Which will be tricky. Imagine that the amendment is close
to meeting the ratification threshold of 37 states in November 2028 but not
quite there. Then Vance is elected president. Do you think red states that
haven’t made up their minds yet will welcome their new hero by agreeing to
yoink the pardon power out of his hands? Why would they antagonize him that
way?
And what if Trump connives to run for that
third term he’s been coveting? How would red states react to the repeal
amendment then? They might be willing to end the pardon power on January
20, 2029, and handcuff Trump’s Republican successor, but ending it when Trump
himself is plotting to still be president on that date would be an act of
supreme “disloyalty.” They don’t dare.
Even if Trump declares definitively that he won’t run
again, what I said earlier about throwing a spotlight on his pardons might make
Republican state legislators wary of a repeal amendment—even one that won’t
take effect until he’s gone. Trying to end executive clemency at the same time
that the president is abusing executive clemency will lead to lots of awkward
questions for GOP officials about why they’re not speaking out against Trump’s
own abuses. If rescinding this power is important enough to do it in 2029, why
isn’t it important enough to do it now? They won’t want to answer those
questions.
As for Democrats, they’ll have an obvious problem with
their own base. What the hell is the point of ending the pardon power, many
progressives will wonder, if the worst abuser of that power remains free to go
on abusing it for the rest of his presidency? It’s like outlawing murder but
grandfathering in Ted Bundy.
The dumbest possible outcome, leftists will claim, is to
give carte blanche to Trump to continue his crime spree while preempting the
next Democratic president’s ability to show mercy to victims of the Trump
Justice Department’s vindictive, unjust prosecutions. The proper remedy to an
abuse of power isn’t to repeal that power, it’s to reapply it to its virtuous
intended uses—or, at the very least, to abuse it for your own side’s benefit
after Republicans spent four years abusing it to benefit their own.
And what if the impunity granted to Trump until 2029
incentivizes him to go hog wild with corrupt clemency? Granted, he’s already
gone pretty wild—we’re talking about a guy who won’t
rule out setting Jeffrey Epstein’s procurer free—but knowing that the
Constitution itself now authorizes him to do any ol’ thing he likes with
pardons might loosen a few more screws in his brain. Imagine him issuing a
preemptive pardon to every ICE employee in the United States for crimes they
might commit in the course of their duties.
That’s probably coming anyway, but this would cinch it.
Confidence-building measures.
There’s one more meta-argument for why legislators might
want to think seriously about a repeal amendment, though. That amendment could
be a useful confidence-building measure for further bipartisan compromise on
reining in the imperial presidency.
“Confidence-building measures” is a diplomatic term. When
two parties are at war, the first step toward peace is giving them a way to
develop a bit of trust in each other. If they can cooperate successfully on a
small initiative, they’ll be more willing to cooperate on more ambitious ones.
Repealing the pardon power is a useful
confidence-building measure because both parties have abused it in recent
memory, and both parties momentarily have reason to fear how it might further
be abused in 2029. It’s a small yet outrageous facet of how unethically and
autocratically presidential power is used now, which makes it ripe for
correction.
If Republicans and Democrats could get together on
sunsetting it in four years, they might also be able to get together on
sunsetting other grotesque encroachments by the executive on legislative power.
Tariffs, war powers, the Insurrection Act—all of that can be dealt with by
statute, without the heavy lift of a constitutional amendment. Having
established that presidential authority has gone too far by targeting the
pardon power, Congress could build on it with legislation prohibiting other
executive abuses starting in 2029.
Mutual disarmament, we might call it, in contrast to the “unilateral disarmament” that partisans on both sides are forever screeching about whenever someone inside their tent proposes a good-government initiative that might restrain their side’s power. It’s the only way I can imagine Article I un-Duma-fying itself, assuming the will to do so still exists. 2029 is far too late for that project to start but better late than never.
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