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.