Biden pardons his son. Will he see "miscarriage[s] of justice" elsewhere?

Also: The Fifth Circuit is chipping away, for now, at federal supremacy on immigration. And, for paid subscribers: Closing my tabs.

President Joe Biden announced on Sunday night that he pardoned his son, Hunter Biden, on Sunday for "those offenses against the United States which he has committed or may have committed or taken part in during the period from January 1, 2014 through December 1, 2024."

This is a broad, blanket pardon — not limited to the charges he was currently facing.

In a statement accompanying the announcement, the president detailed the circumstances of Hunter Biden’s prosecution, the failed plea deal, and said that “Hunter was singled out only because he is my son — and that is wrong.”

Hunter Biden’s pardon, as provided by the White House.

Calling it an effort to “break” Hunter Biden, who “has been five and a half years sober,“ Biden said, “I believe in the justice system, but as I have wrestled with this, I also believe raw politics has infected this process and it led to a miscarriage of justice ….”

With that and the stoke of a pen, Biden exercised his constitutional pardon power.

As I wrote back in 2017 describing the president’s “enormous” clemency power:

The Constitution is short and to the point on pardon power: “[H]e shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.”

With this done, Biden has shown he understands the vastness of his pardon power — and its purpose. Now, he has to lead and exercise this power elsewhere.

The president must show that he understands it is not only his son who has faced a justice system “infected” with “raw politics,” a system that has “led to a miscarriage of justice” for many.

On Nov. 20, Reps. Ayanna Pressley, Jim Clyburn, and Mary Gay Scanlon led a letter from more than 60 members of Congress urging Biden “to use your clemency powers to help broad classes of people and cases, including the elderly and chronically ill, those on death row, people with unjustified sentencing disparities, and women who were punished for defending themselves against their abusers.“

A few days earlier, I wrote here at Law Dork about Biden’s moral and ethical responsibility to commute federal death row before Donald Trump returns to office.

On Sunday, Biden opened the door to making a better nation.

He has 50 days to do it.

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The Fifth Circuit chips away at federal immigration supremacy — for now

Fifteen minutes before 5 p.m. on the East Coast on the Wednesday before Thanksgiving, a divided three-judge panel of the U.S. Court of Appeals for the Fifth Circuit ruled that Texas was allowed to sue the Biden administration in a case that could limit the federal government from enforcing immigration law as it chooses.

Although framed by Texas and the court as an ordinary civil lawsuit seeking an injunction to stop the federal government from “mangl[ing]“ the state’s property, the underlying issues show how that framing is subterfuge.

The court’s technical ruling is an injunction blocking the federal government from “damaging, destroying, or otherwise interfering with Texas’s c-wire fence [concertina wire, a type of razor fencing] in the vicinity of Eagle Pass, Texas,“ where Texas erected the fencing to make crossing the border more difficult, under certain circumstances. The opinion from Judge Kyle Duncan, a Trump appointee, was joined by Judge Don Willett, another Trump appointee.

The problem with that, as Judge Irma Carrillo Ramirez, a Biden appointee, wrote in dissent, is that she believed Texas did not even show that the federal government can be sued in these circumstances, let alone that Texas would succeed if it could do so. This is so, in part, because immigration enforcement is a quintessential federal task and Texas’s fencing was an attempt to take over aspects of that task by suing the Biden administration for cutting the fencing:

Texas’s use of its tort law against Defendants provides Texas with “a virtual power of review” of Defendants’ immigration-enforcement operations, which would “frustrate” Defendants’ ability to ensure faithful execution of federal law.

Duncan and Willett disagreed on both points, holding that the government did authorize such lawsuits and that Texas was likely to succeed in its claims. Even they, though, agreed that Texas had not proven that their fencing decisions were not impeding federal law enforcement decisions.

Missing from the Duncan’s opinion is the fact — found by the district court judge — that Texas explicitly referred to this as a “military operation” to overtake Shelby Park, where federal officials had maintained a staging area for processing people crossing the Rio Grande.

This was not the first time the Fifth Circuit tried to side with Texas in the case.

Ten months earlier, the U.S. Supreme Court — on a 5-4 vote — had vacated an earlier injunction from the Fifth Circuit in the case. That injunction was issued by a motions panel, which considers initial matters when cases come up on appeal. The 2-1 opinion granting that injunction was authored by Duncan. Willett joined his opinion. (Yes, Duncan and Willett were on both the motions panel and the merits panel for this case. Judge Catharina Haynes, a George W. Bush appointee, was the third judge on the motions panel and would not have granted an injunction at that time.)

Although the Supreme Court gave no reasoning for its January order, it vacated it — wiping it away while the appeal continued at the Fifth Circuit.

But now, it appears, the Fifth Circuit is ready to go for it a second time.

Maybe.

There was one additional curiosity in Wednesday’s November 27 opinion. In the announcement, it also stated that the mandate — essentially, the order returning jurisdiction to the district court to put the injunction into effect — would issue on January 21, 2025.

The oral arguments in the case were held back in June, so this was neither a rapid ruling nor a long-delayed one. And yet, the opinion will not go into effect until the day after Donald Trump becomes president. Whether this timeline was the default based on a Nov. 27 decision (which the panel would have known) or a date provided by the panel, it is a pretty transparently partisan move.

By that date, the Justice Department and Department of Homeland Security are almost certain to hold different positions on how to work with Texas on immigration matters. For that matter, Texas very likely will feel differently about the case come January 21. The state might go as far as to dismiss the case outright as a way of welcoming Trump back into office.

In other words, there absolutely could be unusual, at best, happenings with this ruling and case as the administration changes.

But, for now, the Fifth Circuit issued a ruling that adds a caveat to federal supremacy in enforcement of immigration law.

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Closing my tabs

This Sunday, here are the tabs I’m closing: