Bush OLC, Act. 1

[stoke001]

Sandy Levinson asks:

> Does anyone else find it amusing that (some of the) Republicans who
> supported an extravagant reading of the Florida legislature's plenary
> power with regard to naming electors are suggesting that the
> President's plenary power to pardon might be limited after all?

What is the argument that the scope of these two powers is the
same?  I am more familiar with the "extravagant" reading of the
Florida legislature's power than with the pardon issue, and my
initial inclination is that the pardon power is plenary, but my
understanding of the argument (drawn from posts on this list) is
that a pardon requires delivery to be effective.  I do not know
whether that argument is right or not.  My understanding of the
best arguments for the "extravagant" reading of the Florida
legislature's power to appoint electors is that it is bounded by
Congress's power to designate the time within which this must
occur.  The arguments in each case seem to concern different
limitations, imposed by different texts, on different powers that are
set forth in different texts employing different language.

I share the *intuitive reaction* that they perhaps ought to receive
similar treatment, but it seems a long way from that sort of gut
instinct to actually *concluding* that that is the correct answer.

Is Sandy's argument that they are both political questions, and
should thus be treated the same?  Or is this an ad hominem rather
than an argument?

Michael Stokes Paulsen
University of Minnesota Law School