Supreme Court

Trump SCOTUS Short-Lister Joan Larsen Is a Fan of Executive Power and Presidential Signing Statements

Examining the record of the Michigan Supreme Court Justice

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Michigan Supreme Court

President-elect Donald Trump has repeatedly said that his pick to replace the late Justice Antonin Scalia on the U.S. Supreme Court will be drawn from the list of 21 names that he released during the presidential campaign. One of the names on that list is Michigan Supreme Court Justice Joan Larsen. If Larsen does get the nod from Trump, the Senate Judiciary Committee should examine her past statements in support of expansive executive power.

On September 13, 2006, while working as a law professor at the University of Michigan, Larsen penned an op-ed for The Detroit News defending the use of presidential signing statements by President George W. Bush. Throughout his presidency, Bush issued hundreds of such statements, in which he asserted his independent authority to reject or ignore parts of the very statutes that he himself had signed into law.

For example, on December 30, 2005, Bush signed into law a piece of legislation called the Department of Defense, Emergency Supplemental Appropriations to Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act. Among other things, this cumbersomely named bill included a provision known as the McCain Amendment. Named after its principal sponsor, Republican Sen. John McCain of Arizona, the McCain Amendment was added for the explicit purpose of outlawing the use of waterboarding and other forms of torture by U.S. forces engaged in the war on terrorism. Specifically, it prohibited "cruel, inhuman, or degrading treatment or punishment of persons under custody or control of the United States government."

Initially, Bush's signature was seen as a repudiation of his administration's previous pro-torture stance. As NBC News put it, "Bush accepts Sen. McCain's torture policy. President now agrees with pact banning cruelty against terror suspects."

But in fact Bush did not agree with McCain. Bush simply believed that he was under no obligation to actually follow the law that he had just signed. As Bush explained in his accompanying presidential signing statement, he would only implement the McCain Amendment "in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power." Translation: The Bush administration would go on fighting the war on terror as it saw fit, regardless of what the other branches of government had to say about it.

So much for the separation of powers. As the journalist Charlie Savage observed in his 2007 book on the Bush administration and its anti-terrorism policies, Takeover, "Bush was claiming that only the parts of the bill that expanded his power were constitutional, essentially nullifying the parts of the bill that checked those new powers."

Which brings us back to Trump SCOTUS short-lister Joan Larsen. In her 2006 Detroit News op-ed, Larsen came out firmly in defense of Bush's actions in this instance. The outrage over signing statements "is misplaced," she insisted. "Denying the president a constitutional voice is the real threat to our system of separated powers." After referring to "the anti-torture legislation that sparked much of this controversy," Larsen offered this glowing summary of Bush's signing statement: "If circumstances arose in which the law would prevent him from protecting the nation, he would choose the nation over the statute."

That is one way of looking at it. Here is another: If the president thinks the law is stopping him from "protecting the nation" (as the president defines it), then the president gets to act above the law.

That is, to say the least, a very expansive view of executive power. If Trump does nominate Larsen to SCOTUS, the Senate Judiciary Committee should ask her why she thinks that view is consistent with the Constitution.

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59 responses to “Trump SCOTUS Short-Lister Joan Larsen Is a Fan of Executive Power and Presidential Signing Statements

  1. Trump’s short list is not very short. I will wait to judge until he actually nominates someone. It could be good; it could be bad. Speculation at this point is simply not worth the effort. I’m still kind of hoping for a Janice Rogers Brown nomination out of left field. Watching heads explode would be wonderful.

    1. She has been all over the political spectrum. She advocates libertarianism now.

      ‘In recent years, she has described New Deal legal precedents as “the triumph of our socialist revolution,”….’

      ‘Brown has said that when she was young, she was so liberal in her politics that she was almost Maoist, although she is now conservative’

      WaPo article

      1. Let’s not trust a politician to tell us where they actually lie politically. Hell, probably shouldn’t trust anyone to tell where they lie.

      2. I just don’t see her as being worse than any of these other people, and getting a second black non-liberal, and a woman on top of that, on the court would simply be hilarious. I’m still experiencing too much schadenfreude over this election to really fear what Trump might do yet. This nomination would extend that.

      3. ‘Brown has said that when she was young, she was so liberal in her politics that she was almost Maoist, although she is now conservative’

        Probably without changing a single stance on any issue. The revolutionaries turn into the conservatives the day after the revolution.

  2. Re: “the McCain Amendment”

    Perhaps one way to deal with this would be to stop adding riders. Write a bill that bans torture and send that to the president. Then he can veto or sign that bill without all the other bullshit.

    1. Yeah, limit bills to a single subject. Also size limits and mandatory expiration dates would be good.

      1. Yearly sunset of all laws. Make Congress part-time and they don’t get paid unless they pass a yearly balanced budget that does not allow borrowing.

        1. Any borrowing would need to be in time of declared war and requires 100% of all Senators and Reps elected to pass. All congressmen must vote, no absences allowed for this vote.

        2. All future NYT and WaPo articles would simply be the word “Hitler” repeated over and over, accompanied by loud teeth gnashing sounds.

          1. Angry eldritch noises intensify.

          2. Laugh while you can. Hitler’s Mein Kampf is no longer banned in Germany. In fact, it is on the best-seller list. The book is a paean to altruistic religious conservatism of the christian varieties. Immigration bans? sharia law to censor anything that offends christian sensibilities? extirpation (or extermination) of semitic peoples? asset-forfeiture clauses? It’s all in there folks. A summary of the religious messages in Hitler’s screed can be found at nobeliefs.com

            1. It would be great to think you’ve actually been a spambot playing the long game this entire time and it just now culminated in hawking your shitty blog from 1995.

  3. You want to tell us who on the list is acceptable? You seem to be digging real hard to find problems with the choices, but from what I’ve read Sykes and Willett seem pretty solid.

    1. I’m really thinking he’ll choose Willett, if only for his Twitter presence. I would be delighted with that appointment. Nobody he nominates will be a perfect libertarian.

      1. Willett is pretty good. Not perfect, but good. Also, fun to follow on the Twitters too.

  4. I’m still pulling for a dark horse candidate. Camille Paglia, I choose you! *throws pokeball*

    1. Justice Mike Rowe.

      There’s no requirement SCOTUS picks have to have even a legal background and plenty of good arguments for having somebody with some common sense instead of the bullshit training and temperament for being able to persuasively argue 6 sides of a simple damn yes-or-no question.

      1. Mad Dog Mattis.

        1. Dog the Bounty Hunter.

          1. “stare decisis, brah”

      2. Come on, there are some jobs that are too dirty even for Mike Rowe.

      3. Most of what SCOTUS does requires a law degree or education i nthe law though, not the high profile cases perhaps, but a lot of things are more administrative and technical.

        1. That’s what the clerks are for. Just like the White House council isn’t there to advise the President on what’s legal and what’s not, he’s there to argue for why whatever the hell it is the President wants to do is always perfectly legal. And he can, too, because there’s always 14 different valid arguments to be made no matter which outcome you’re arguing in favor of. All Mike Rowe has to say is “this is stupid, this is the way things ought to be” and it’s the clerks job to turn that statement into an 186-page opinion with copious cites and footnotes and a mind-numbing amount of legal verbiage proving that Mike’s got an iron-clad legal argument there.

          Look at say the Obamacare ruling – it didn’t matter which way they ruled, there were a ton of legal experts 100% certain that the Supremes were absolutely correct and a ton of legal experts 100% certain the Supremes were shockingly full of shit. If the case law and the Constitution is somehow so opaque that even legal experts have no idea whatsoever how the Court’s gonna rule and why they’re going to rule that way, what sort of legal expertise do you need when throwing a monkey at a dartboard is just as reliable a predictor of a forth-coming ruling as actually doing any sort of examination of the issue?

        2. Most of what SCOTUS does requires a law degree or education i nthe law though

          Fine. David B. Kopel will do as a SCOTUS pick then.

            1. +1 SCOTUS opinions with more questions than statements.

  5. Department of Defense, Emergency Supplemental Appropriations to Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act. Among other things, this cumbersomely named bill

    Come on, DODESATAHITGOMAPIA rolls off the tongue.

  6. Trump SCOTUS Short-Lister Joan Larsen Is a Fan of Executive Power and Presidential Signing Statements

    Why is this any kind of concern now that the GOP has total control of the government and there’s no way humanly possible we will ever ever ever see progs regaining any sort of influence whatsoever on government?

    1. Because majorities are forever!!!!!!!!! Don’t you know that???????????

  7. “Specifically, it prohibited “cruel, inhuman, or degrading treatment or punishment of persons under custody or control of the United States government.””

    Eh, I am having a hard time finding a problem with Bush’s signing statement regarding the McCain amendment, since the plain words used in the amendment are somewhat vague (who decides what is “cruel” or “inhuman” or “degrading”?). So charitably I suppose it could be said that Bush is simply saying he will follow the law right up until the point where the courts tell him explicitly what constitutes “cruel, inhuman, or degrading treatment”. And I would expect him to try to push the bounds to see how much he could get away with.

    But I am no fan of Nixonian arguments that the president can do no wrong when it comes to exercise of the Commander in Chief power, like Larsen’s above.

  8. I really can’t judge her qualifications without seeing her tits.

    1. If the Nazgul all lifted their robes over their heads, who do you think would have the best pair of knockers hidden under there?

      1. I guess we’ll never know since Reason refuses to cover it!

      2. I’ll go with Thomas’ moobs. Black don’t crack.

    2. Yet another reason the Nazrul should be required to shave all their hair and not wear makeup.

      1. *Nazgul*

        Damn autocorrect!

        *** googles Nazrul ***

          1. Bow before the almighty auto-correct 🙂

  9. Good post. This is the kind of research and reporting that Reason should do more of, IMO.

    I find it somewhat amusing, though, that Bush is criticized for not respecting separation of powers when the unitary executive theory he promoted is a strong separation of powers doctrine.

    1. The problem is more lack of respect for robust checks on executive power, I’d say.

  10. So she’s an olive branch to the Obama supporters?

  11. The presidential pen larded with judicial groupies is an excellent way to destruct a constitutional republic which is why the outgoing motherfucker infinitely used his goddamn jackoff sauce as heady collectivist ink to sign rot into the America freedom fabric.

    Eagles whipping through sun beams such ourselves can only hope the modern strand of eclectic conservatism steering this lurching beast will allow their ilk to be possessed with a least a measure of the more essential spirits of our founders.

    1. I read that first part initially as “larded with judicial gropies” and thought you were referring to grabbing RBG by the……

      You know what? Even I don’t want to think about what I was thinking about so just nevermind.

  12. Bush was right.

    If the president thinks the law is stopping him from “protecting the nation” (as the president defines it), then the president gets to act above the law.

    Here’s the part he didn’t mention: He then gets to get impeached, and in the impeachment hearings offer up a defense of his actions and the unusual circumstances that justified his actions. Congress can then vote to give him the boot or not.

    It’s really no different than torture. Torture should not be part of US policy. It should be flat out illegal. And when Jack Bauer tortures a terror suspect to learn where the bomb that will blow up the Superbowl is, he can then face trial – and nobody will convict him due to the circumstances. It doesn’t mean we need to make torture the SOP for US Intelligence gathering. We can have our cake and eat it too on this one.

    1. That seems about right.

      I had a similar discussion recently about police shooting at moving cars. My conclusion what that it should be forbidden in general. And if someone tries to kill a bunch of people with a truck or something, an officer should use his judgement and shoot the moving vehicle if necessary. If he has good justification for the action, no one is going to punish him for saving a bunch of lives and shooting a scumbag terrorist.

  13. Presidential signing statements are an opinion of the office of president that Congress has exceeded its authority with some provision of the bill being passed. Maybe the president should only sign clean bills, but Bush was not sating he was above the law, he was saying that part of the law was unconstitutional and therefore invalid.

    1. Then he should have vetoed the law. We don’t have partial or line item vetos, and the President has a duty not to sign laws that are unconstitutional. The signing statement is a way for Presidents to avoid their duty and the fact that we don’t have partial vetos.

      1. If any part of a law is unconstitutional, the whole thing needs to go. Pity that neither recent presidents, nor SCOTUS sees it that way.

      2. What if an act of Congress amends 20 different chapters in the USC, & 1 of the chapter amendments is ruled unconstitutional many yrs. later? You going to go to the consolidated laws, find the hx of each change, & revert all the changes that went together w that single unconstitutional amendment?

  14. I’m just going to say it – one of the primary considerations for Trump’s nominee is going to be a staunch defense of the idea that Citizens United must be overturned.

    I know, I know – you start talking about overturning Citizens United and there are going to be some people squawking “Free Speech! Free Speech!”. Those are foolish people. When the biased media pushing their fake news agenda are allowed to publish totally unfair and untrue attacks against good and decent politicians in an attempt to influence public policy, the laws need to be loosened up a little bit to make sure those lying liars, those losers and haters, can be sued and can be made to pay a price for their totally unfounded slanderous accusations.

    Trump is going to have an opportunity to tweet his support of over-turning CU at some point when a relevant case comes up and the Usual Suspects are going to be applauding and spewing out defenses of how whatever case it is that has come up is not at all like CU and is in fact the exact opposite and this in no way is comparable to Hillary’s arguments for overturning CU. Unless of course Trump actually namechecks CU, in which case they’re just going to have to admit that all this time they were mistaken on their analysis of the case and that Trump is absolutely correct and they were wrong to have ever uttered a word of defense for such a horribly misbegotten opinion issuing from those totally biased and unfair ignorami on the bench.

    It’s gonna happen.

    1. I don’t think it will. Trump has said he thinks defamation law should be changed; I don’t recall him ever saying Citizens United should be overturned. Maybe he did and I missed it.

      1. I haven’t heard anything that suggests that he wants to overturn Citizens United (or has any opinion of it).

  15. Soooo… what does she say the Consta2shun sez?
    14. All persons born
    or
    14. All ova fertilized…?

    1. three fifths of all other Persons.

  16. I would defend signing statements too. Libertarians in the US frequently point out that nothing the courts do relieve the other branches of gov’t from their responsibility to follow the US Const., & of course they need to exercise their own judgment as to what it means. What I don’t go for is the prez signing a campaign finance law he says he believes is unconstitutional & that he expects to be struck down!

  17. She’s kind of hawt. Betcha anything she’s a THS.

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