Not So Simple?

December 27, 2008 12:25 p.m.

From fellow obsessive, TPM Reader JS

You seem obsessed by Toussie; so am I. This thing is legally even more complex than you think. Apparently, Toussie wanted the pardon to free him from state law disabilities. I believe that it is state law that decides whether the pardon is effective for state purposes. If I am correct, the state law can ignore a valid federal pardon; it can follow whatever the federal rule may be for a revoked pardon; it can decide for its own whether NY state will recognize the revocation. I don’t know what it does, but I think that state sovereignty is pretty unquestioned here. (Warning: I am not a Constitutional lawyer and of course, nothing in this screed is legal advice, or creates an attorney-client relationship. The only thing confidential is, I hope, my name.)

The rubber will hit the road when Toussie wants to get his NY real estate license back. And it will likely be a New York state court that decides.

Late Update: 12/27/08: A few readers have written in to argue that JS is wrong because of the federal supremacy clause: state courts have no standing to judge the validity of the president’s pardon. But I think they’re missing the point. Technically, the president just kicked Toussie’s request back to the Pardon Attorney for a review. But let’s assume what’s very likely: that his request will now die at the Pardon Office. (Under the Pardon Office’s rules, I don’t think he’s even allowed to apply for a pardon for a few more years.) Sure, if a federal court resolved the issue of whether or not the president could revoke Toussie’s pardon, that would settle the matter. And state court’s would have to respect that decision. But given that Toussie apparently wanted this pardon to get out of under a state disability, it’s not clear to me by what means we’re going to get to a federal test case. What seems far more likely is that Toussie will go to the state of New York and ask for his real estate license back. He’ll have at least a pretty solid argument that he did receive a federal pardon — that the president wasn’t able rescind the pardon. Then the State of New York — first whatever agency issues real estate licenses and then perhaps a federal court — will have to decide whether Toussie has been absolved or not. Of course, I guess, if he gets rebuffed by that agency, Toussie could go to a federal court for relief, arguing they’re disregarding the federal supremacy clause. And then a federal court would have a chance to review. Clearly, at this point, I’m way too deep into the federalism thicket for my own good. But it does seem to me that JS is right that the first government agency to have to make sense of this may be part of the State of New York.

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