Article II

Online
Essay
The Shadow Pardon: Hidden Clemency in the Modern Presidency
Trey Bonham
Trey Bonham is a J.D. Candidate at The University of Chicago Law School, Class of 2027. He thanks Summer Lijin Dai, Dani O’Connell, and the entire University of Chicago Law Review Online team for their support and feedback.

The Constitution’s pardon power offers a direct path to protect an ally from federal criminal liability. However, another vehicle for absolution exists—one which simultaneously avoids public scrutiny while securing amnesty. By issuing a discreet, specific nonenforcement directive to the Department of Justice (DOJ), a politically vulnerable President can achieve the result of pardon without signing one. This phenomenon, which this Essay terms the “shadow pardon,” transforms prosecutorial discretion into a covert form of amnesty, invisible to the public and immune from reversal once the relevant crime’s statute of limitations expires.

Article II Constitutional Law Criminal Law
Online
Essay
The Federal Government Probably Can’t Order Statewide Quarantines
Maryam Jamshidi
Maryam Jamshidi is an Assistant Professor of Law at the University of Florida, Levin College of Law.

For helpful comments and conversations, thanks to Paul McGovern, Scott Skinner-Thompson, and Ehsan Zaffar. Many thanks, as well, to the editors of the University of Chicago Law Review for their thoughtful revisions and suggestions. All errors are my own.

On Saturday, March 28, 2020, President Donald Trump floated the possibility of issuing a “quarantine” order for the states of New York, New Jersey, and Connecticut because of their numerous COVID-19 cases.

Article II Commerce Clause COVID-19 Quarantine
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Article
75.4
The Unbundled Executive
Christopher R. Berry
Assistant Professor of Public Policy, The University of Chicago
Jacob E. Gersen
Assistant Professor of Law, The University of Chicago

We are grateful to Bruce Ackerman, Rachel Brewster, Ethan Bueno de Mesquita, Bob Cooter, Rosalind Dixon, John Ferejohn, David Fontana, Heather Gerken, Tom Ginsburg, Dan Ho, Cheng-Yi Huang, Alison LaCroix, Daryl Levinson, John Matsusaka, Richard McAdams, Drew Navikas, Anne O’Connell, Eric Posner, Adam Samaha, Lior Strahilevitz, Madhavi Sunder, Cass Sunstein, Matthew Stephenson, and Adrian Vermeule for helpful comments and conversations. Johanna Chan, Monica Groat, Stacey Nathan, and Peter Wilson provided excellent research assistance. Financial support was provided by the John M. Olin Foundation and the George J. Stigler Center for the Study of the Economy and the State.

Administrative Law Article II Separation of Powers

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