Judge Joan Larsen on Separation of Powers and Administrative Law, by Joseph Mead

by Guest Blogger — Wednesday, July 4, 2018

Joan Larsen’s name has come up repeatedly as a potential nominee for the Supreme Court. After she learned she was on then-candidate Donald Trump’s list of potential Supreme Court nominees, she even recused from a case involving the election. Now, it seems, the speculation about whether she might be nominated is heating up again.

After clerking for D.C. Circuit Judge Sentelle and Justice Scalia, Larsen spent a short stint as Deputy Attorney Assistant General in the Office of Legal Counsel at the U.S. Department of Justice. She eventually made her way to the University of Michigan Law School, where she taught legislation-regulation, constitutional law, and criminal procedure. She was appointed to the Michigan Supreme Court in 2015, successfully defended her seat via election, and was appointed by President Trump to the U.S. Court of Appeals for the Sixth Circuit in late 2017.

Larsen’s record as a professor and a judge provide few clues about her substantive views. She has only been a judge since 2015, giving her the chance to author relatively few judicial opinions. Similarly, she has written only a handful of scholarly articles, and her public commentary on issues is also limited. Still, there are a few hints about how she might approach important questions posed in administrative law. Most notably, given her praise for Justice Scalia’s originalist, formalist approach to separation of powers, Judge Larsen may be receptive to arguments in favor of limiting agency independence from the President.

Judge Larsen on Separation of Powers

When it comes to interpreting the Constitution, Judge Larsen appears to follow Justice Scalia’s originalist approach. Judge Larsen wrote that she “understands our State Constitution is not a ‘living document,’”, and then-Professor Larsen wrote that, when understanding constitutional law, “Judges are just not licensed to be the engines of change.”

Judge Larsen relies heavily on a formalist vision of strong separation of powers as a means of protecting liberty. This is developed most clearly in an article she co-authored as a student with her professor, Steven Calabresi. In the piece, Larsen praises constitutional norms that have led to a strong, independent American presidency instead of a parliamentary system with greater legislative control over the Executive. The article embraces gridlock and executive-legislative conflict, adopting a Scalia-esque view of separation of powers.

The tone of the piece is set by the first two sentences: “The Framers of the American Constitution hated concentrations of government power. Through checks and balances, separation of powers, bicameralism, and federalism, [the Framers of the Constitution] sought to preserve liberty by making it hard for government to act.” (This sentiment calls to mind a comment made by Justice Scalia: “Every banana republic in the world has a bill of rights. Every President for life has a bill of rights… the real key to the distinctiveness of America is the structure of our government.”)

One passage is remarkable, both because it offers a rare departure from the measured analysis that defines the balance of her work, and because it states clearly a preference for a certain vision of constitutional law: a formalist view of separation of powers that depends on sharply defined branches of government that have limited overlap. Larsen and Calabresi reject the Supreme Court’s 8-justice majority opinion in Mistretta v. United States, where the Supreme Court upheld a delegation of power to the U.S. Sentencing Commission against separation of power challenges. The Commission was designated as “an independent commission in the judicial branch,” charged with creating mandatory sentencing guidelines for use in federal sentencing. It was staffed by 7 members, including at least 3 federal judges, each of whom serve a 6-year term subject to good-cause removal by the President. The majority upheld the arrangement based on a “pragmatic, flexible view” of separation of powers, driven less by rigid categories or rules and more by a functional analysis of the reasons why power has been allocated in a certain way.

Larsen and Calabresi instead side with Justice Scalia’s dissenting opinion, which passionately argued for a formalist approach. With a confidence and tone suggesting the voice of a professor rather than a student, the article condemns the majority for “idiotically concluding that the [U.S. Sentencing] Commission was an Article III entity,” offering praise instead for Justice Scalia’s “impassioned dissent that correctly and elegantly explained the Court’s separation-of-powers errors in upholding the constitutionality of the U.S. Sentencing Commission.” Justice Scalia’s dissent contested the constitutionality of the delegation of power to the Commission on two points. First, even though the delegation was cabined by an intelligible principle, the Commission’s rulemaking authority was still an unconstitutional delegation of legislative power because it was “completely divorced from any responsibility for execution of the law or adjudication of private rights under the law.” Second, Scalia objected to the notion that the Commission was an independent agency in the judicial branch, since “unlike executive power, judicial and legislative powers have never been thought delegable.”

Scalia’s dissent in Mistretta (and his similar writing in Morrison v. Olson and elsewhere) reject arguments that courts should defer to novel allocations of power based on efficiency or pragmatism. In Mistretta, he pleads that separation of powers is “more than a generalized prescription that the functions of the Branches should not be commingled too much—how much is too much to be determined, case-by-case, by this Court.… [A]s its name suggests, it is a prescribed structure, a framework, for the conduct of government. In designing that structure, the Framers themselves considered how much commingling was, in the generality of things, acceptable, and set forth their conclusions in the document.”

Invoking similar ideas, then-Professor Larsen wrote a book review where she contends:

Constitutions commit us to particular rules precisely because the important values they embody are likely to seem unimportant when measured against the pressing issues of the day. With respect to structural provisions, the value served by the provision is typically one of balance-that is, of keeping any one of the three branches of the national government (or the national government as a whole) from aggregating too much power unto itself.

Larsen’s endorsement of Scalia’s approach in Mistretta is relevant to decisions she may be asked to cast on the scope of the President’s power to remove subordinates, which she has described as a “key executive prerogative.” While Mistretta’s separation of powers holding remains good law, the Supreme Court in recent years has shifted towards Scalia’s more formalist, rigid approach when deciding new separation of powers disputes, including in ways that might hint at decreased agency independence from the President. In Free Enterprise Fund, the Supreme Court struck down provisions that provided two layers of for-good-cause-only insulation for members of a board. Since the board members could be removed only for good cause by members of the SEC, and the SEC commissioners could be removed only for good cause by the President, the President’s constitutional power to oversee the Executive Branch was hampered.

If precedent (such as Humphey’s Executor) allowing independent agencies is further limited, it may pose significant consequences for agency design and the existing administrative state. This is not purely hypothetical: a panel of the D.C. Circuit struck down the Consumer Financial Protection Bureau on the basis that it is run a single director who can be removed only for good cause (rather than the multi-membered commission model that is more typical for independent agencies). Although the en banc D.C. Circuit reversed this decision, the issue may float up to the Supreme Court in the coming years. If Judge Larsen continues to find Scalia’s dissent and approach in Mistretta persuasive, she may be inclined to reduce the range of options for Congressional design of agencies, and perhaps even place existing structures of agencies at risk.

Judge Larsen and Deference to Agencies

Very little in Judge Larsen’s judicial decisions or scholarship provide useful hints about how she would approach other areas of administrative law. However, while thin, there are statements that reveal her perspective on the role of courts, which may, in turn, be relevant to when (and how much) deference she gives to agencies.

First, Judge Larsen rejects the idea that “judges are a policy-making branch of government.” She has suggested it would be preferable if “nine robed sages” do not “dictate[] from above” important questions of policy. In one article, she argued against the use of customary international law as a technique for understanding substantive US constitutional law in part because international law was too indeterminate. Excessive judicial discretion in interpretation “threatens self-governance because it allows the unaccountable judiciary to substitute its own policy preferences for those of the representatives of the people.”

Based on this worry, Judge Larsen’s interpretive philosophy favors the plain meaning of statutes and seeks to apply interpretive techniques in a neutral fashion. Judge Larsen has repeatedly argued that judges “should interpret the laws according to what they say, not according to what the judges wish they would say. Judges are supposed to interpret the laws; they are not supposed to make them.” In an op-ed, she praised her former boss’s approach to the law: “Justice Scalia believed in one simple principle: That law came to the court as an is not an ought. Statutes, cases and the Constitution were to be read for what they said, not for what the judges wished they would say.” She adhered to a textualist position when writing her student note, arguing that a rule of evidence was being applied in ways inconsistent with its obvious policy goals—even to the point of raising constitutional issues—but concluded that the plain text required the outcome, so urged an amendment to the rules.

Beyond these generic statements, however, there is little basis in Judge Larsen’s record to say anything more sophisticated about her approach to statutory interpretation.

Judge Larsen’s worries about judges taking on too much power and inserting themselves into policy disputes might encourage her to defer to agencies. Chevron deference, after all, is in part motivated by the idea that “federal judges—who have no constituency — have a duty to respect legitimate policy choices made by those who do.” On the other hand, Judge Larsen’s confidence in judges’ ability to interpret statutes in a vacuum—devoid of their policy preferences—could suggest that she would rather see courts declare what the law “is,” particularly in situations where agencies are relatively insulated from political oversight or not exercising their relative competence. In other words, she might view the task of interpreting statutes not as a policymaking role, but as a judicial one, making her disinclined to trust another branch with that power.

A recent split Sixth Circuit opinion provides a small clue of how Judge Larsen might approach review of agency decisions. Judge Larsen joined the opinion of Judge Thapar (another SCOTUS shortlister) in refusing to defer to agency’s interpretation. As Ben Beaton described on this blog:

Judge Thapar [joined by Judge Larsen] declined to defer to an agency’s interpretation of its own regulation in Duncan v. Muzyn, 885 F.3d 422 (6th Cir. 2018). In that case, plaintiffs had sued the Tennessee Valley Authority Retirement System after the TVA cut their pension benefits. Id. at 424. The TVA defended itself by offering a favorable interpretation of one of its regulations, and then invoking the doctrine of Auer deference to justify its stretching of the regulation. Id. at 425. Judge Thapar refused to grant the agency that deference, concluding that the regulation was “not ambiguous.” Id. He insisted that “simply calling something ambiguous does not make it so,” and that “where, as here, one interpretation far better accounts for the language at issue, the language is not ambiguous.” Id. at 425–426.

Judge Larsen joined Judge Thapar’s footnote that asked:

To the extent that the Plan is like a contract, one might fairly question why the TVA’s expertise would merit deference to its interpretation of ambiguous contract language. Cf. Scenic Am., Inc. v. Dep’t of Transp., __ U.S. __, 138 S.Ct. 2, at *2–3, 199 L.Ed.2d 271 (2017) (Gorsuch, J., concurring in denial of certiorari) (“Whether Chevron-type deference warrants a place in the canons of contract interpretation is surely open to dispute.”).

If expanded, this could suggest reducing the circumstances in which judges will defer to agencies under Chevron or Auer.

* * *

Judge Larsen’s record provides few firm clues about her future administrative law jurisprudence. Despite having sat on two appellate courts, she has decided few cases that provide insight into what type of justice she might be. And despite having taught constitutional law, she has revealed little into her personal philosophies by way of scholarship.

Indeed, in the classroom, then-Professor Larsen kept her personal views on cases a mystery from me as she taught us constitutional law. What was not a mystery, however, was her passion for constitutional law—a passion that inspired me and countless others to continue to study, litigate, and defend the Constitution.

 

Joseph Mead is an Assistant Professor of Law at the Cleveland-Marshall College of Law. Judge Larsen was his constitutional law professor at the University of Michigan.

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