1. 1 The decision of the Supreme Court in Garland illustrates this distinction. In Garland, at issue was an act of Congress that attempted to exclude from the practice of law all persons who had participated in the Rebellion. The Court determined that this exclusion was a punishment for the offense of treason. In other words, the Court concluded that, despite Congress' attempt to present its Act as setting qualifications for a profession, it was actually an attempt to exact additional punishment for an offense. The Court held that the Act could not be applied to Garland because the President's pardon prohibited the plaintiff from being punished for the offense of treason. To hold that he could be punished under this new law would subvert the President's clemency power. As the Court stated, "[i]f such exclusion can be effected by the exaction of an expurgatory oath covering the offense, the pardon may be avoided, and that accomplished indirectly which cannot be reached by direct legislation. It is not within the constitutional power of Congress thus to inflict punishment beyond the reach of executive clemency."
2. Garland, 71 U.S. at 381.
3. See also United States v. Klein, 80 U.S. (13 Wall.) 128 (1871). Accordingly, any punishment Congress attempted to prescribe for guilt for the offense was not applicable to the plaintiff.
4. 2 It might also be argued that because deportation is not punishment, it is not precluded by a presidential pardon. This argument has been suggested in dicta in two court opinions.
5. Brazier v. Commissioner of Immigration at Port of New York, 5 F.2d