As Minnesota judges document systematic ICE misconduct, a looming question remains: Can a President immunize lawlessness through the pardon power?
Federal judges in Minnesota are watching the Trump administration ignore nearly 100 court orders. District Court Chief Judge Patrick Schiltz has documented ICE’s systematic defiance of judicial authority. U.S. District Judge Eric Tostrud has declared that ICE likely engaged in unconstitutional practices. Congressional investigators probing the Epstein files are bracing for Attorney General Pam Bondi to simply ignore their subpoena. In both cases, the same question hangs over any meaningful response: What is the point of holding anyone in contempt when the president can pardon it away?
This is not a hypothetical threat. It is an emerging strategy—one made possible not by the Constitution’s text, but by the Supreme Court’s sweeping and, frankly, indefensible interpretation of presidential pardoning power. The Court got it wrong. It is long past time to say so.
The Constitution is straightforward enough: The president “shall have Power to grant Reprieves and Pardons for Offenses against the United States.” Broad, yes. But unlimited? The text does not say that. The Supreme Court said that in Ex parte Garland (1866), declaring the pardon power “unlimited,” extending to “every offense known to the law.” Then, in Ex parte Grossman (1925), the Court extended that logic to cover criminal contempt of federal courts, brushing off separation-of-powers concerns by pointing to theoretical checks elsewhere in the system.
Those checks have not held. They are not holding now.
Consider what this doctrine enables in practice. When a federal judge holds an administration official in criminal contempt for defying a court order, the president can simply issue a pardon—before trial, after conviction, or even preemptively. The judiciary’s most fundamental enforcement tool is neutralized. Courts become advisory bodies. Their orders are mere suggestions. The rule of law becomes the rule of whoever holds the pardon pen.
The same logic applies to Congress. Criminal contempt of Congress is a federal criminal offense, prosecuted under 2 U.S.C. § 192. If the Attorney General defies a congressional subpoena and is held in contempt, a presidential pardon can wipe away the legal consequences. The legislature’s power to investigate and oversee the executive branch—a cornerstone of the constitutional design—is effectively contingent on the president’s permission.
This is not a situation the Framers anticipated or would have sanctioned. They were men who feared monarchy. They constructed an elaborate architecture of divided powers specifically to prevent the kind of unchecked executive authority we are now watching materialize in real time. The notion that they intended to hand presidents a tool capable of nullifying both judicial and legislative authority would have struck them as the very tyranny they sought to prevent.
The Court in Grossman was too cavalier about that danger. Writing that other constitutional mechanisms were sufficient to prevent abuse was a reasonable assumption in 1925; it is an untenable one today. The impeachment process has proven, through repeated failure across administrations of both parties, to be a blunt and largely ineffective instrument against determined executive misconduct. Now, layered on top of an expansive pardon power, the Supreme Court’s 2024 ruling in Trump v. United States has granted presidents sweeping immunity from criminal liability for official acts. The walls are coming down simultaneously.
The justices who pride themselves on textualism and originalism should feel the weight of this moment acutely. Nothing in the Constitution’s text declares the pardon power unlimited; that is judicial invention. An originalist reading of the founding era’s deep suspicion of unchecked executive power strongly suggests the Framers never intended pardons to function as a veto over coequal branches of government performing their core constitutional functions.
Justice Benjamin Cardozo once wrote that precedent deserves respect, except when it proves unworkable. Garland and Grossman, as applied to contempt of courts and Congress, have become unworkable. They do not merely produce bad outcomes at the margins; they threaten the structural integrity of the constitutional order itself.
The Supreme Court should revisit these decisions. At minimum, it should hold that presidential pardons cannot extend to criminal contempt of Congress, where the offense is an affront to a coequal branch’s core functions, not merely to “the United States” in the general sense. It should strongly reconsider whether pardoning criminal contempt of federal courts—effectively allowing the executive to immunize defiance of judicial orders—is compatible with the separation of powers.
Courts in Minnesota are fighting to enforce the law against an administration that has decided it need not comply. Congress is trying to do its job against an executive branch that treats oversight as optional. Both are discovering that their enforcement mechanisms may be legally toothless.
The Supreme Court created this problem. Only the Supreme Court can fix it.
