Notice & Comment

Judge Raymond Kethledge and the Separation of Powers, by Charles J. Cooper and G. Ryan Snyder

In recent years, several posts on this blog have analyzed how individual judges on President Trump’s Supreme Court shortlist approach questions of administrative law. (See here and here.) To our knowledge, however, no one has written about one of the leading contenders—Judge Raymond Kethledge. This two-part series attempts to fill that gap. The first post analyzes Judge Kethledge’s views on the constitutional separation of powers, and the second post analyzes how those views have shaped his approach to cases involving administrative law.

The Framers understood that the “separation of governmental powers into three coordinate Branches is essential to the preservation of liberty.” Mistretta v. United States, 488 U.S. 361, 380 (1989) (emphasis added). That is because, as Justice Scalia explained, “a bill of rights has value only if the other part of the constitution—the part that really ‘constitutes’ the organs of government—establishes a structure that is likely to preserve, against the ineradicable human lust for power, the liberties that the bill of rights expresses.” Antonin Scalia, The Idea of the Constitution, in Scalia Speaks: Reflections on Law, Faith, and Life Well Lived 163 (Christopher J. Scalia & Edward Whelan eds., 2017).

In his ten years on the bench, Judge Kethledge has set himself apart as a dedicated defender of the Constitution’s structural protections. Highlighted below are three notable examples.

United States v. Bistline

In United States v. Bistline, 665 F.3d 758 (6th Cir. 2012), Judge Kethledge wrote a majority opinion explaining that the judicial branch cannot take Congress’s legislative power and give it to technocratic experts. The case arose when Richard Bistline pled guilty to possessing 305 images and 56 videos of child pornography on his computer. Under the Sentencing Guidelines, his recommended sentence was 63 to 78 months’ imprisonment. Yet the district court sentenced him to a single night’s confinement in the courthouse lockup.

The district court imposed this paltry sentence because Congress had taken a hands-on approach to drafting the child-pornography sentencing guideline, rather than handing it off to the Sentencing Commission. Over the years, Congress had repeatedly amended the guideline directly or mandated that the Commission do so—each time making the punishment more severe. And in the district court’s view, that made the guideline “seriously flawed.” Id. at 760. As the district court put it, the guideline was “not arrived at through empirical study and data, but in some instances [is] a reflection of congressional mandates,” which gave the district court “some concern that political considerations may well have influenced [its] severity.” Id. at 761. In other words, Congress should have left sentencing policy to the experts; and by failing to do so, had necessarily tainted the guideline.

Judge Kethledge wrote a majority opinion that forcefully rejected this reasoning as “misguided.” Id. He explained that, “[i]n our system,” “defining crimes and fixing penalties are legislative … functions.” Id. (quotation marks omitted) (alteration in original). To be sure, Congress had delegated to the Commission “a limited measure of its power to set sentencing policy.” Id. at 762. But “the Constitution merely tolerates, rather than compels, [that] limited delegation of power.” Id. Thus, “[i]t is not the judiciary’s province to say that Congress should have delegated still more—especially to another body within the judicial branch.” Id.

Having clarified the relationship between Congress and the Sentencing Commission, Judge Kethledge proceeded to reject many of the complaints that judges and commentators had made about Congress’s role regarding the child-pornography guideline. Some had complained that “Congress has encroached too much on the Commission’s authority with respect to sentencing policy.” Id. But “[t]hat is like saying a Senator has encroached upon the authority of her chief of staff, or a federal judge upon that of his law clerk.” Id. Others had complained that Congress had “marginalize[d]” the Commission. Id. (quotation marks omitted). But “Congress can marginalize the Commission all it wants: Congress created it.” Id. Indeed, Judge Kethledge explained, “it is normally a constitutional virtue, rather than vice, that Congress exercises its power directly, rather than hand it off to an unelected commission.” Id. After all, the “Constitution is fundamentally a democratic document, not a technocratic one.” Id.

Waldman v. Stone

In Waldman v. Stone, 698 F.3d 910 (6th Cir. 2012), Judge Kethledge wrote a majority opinion defending against a congressional attempt to diminish the judiciary’s power. Ron Stone, a Chapter 11 debtor-in-possession, asserted a state-law fraud claim against Randall Waldman in an adversarial proceeding in bankruptcy court. The bankruptcy judge entered a $3 million judgment in favor of Stone. On appeal, Waldman argued that the judgment was invalid because it had not been entered by an Article III judge. Stone and the United States, as amicus curiae, responded that Waldman had waived that argument by failing to raise it below.

Judge Kethledge held that the argument was not waived because individual litigants cannot waive the Constitution’s structural protections. He began by explaining that “Article III, § 1 not only preserves to litigants their interest in an impartial and independent federal adjudication of claims within the judicial power of the United States, but also serves as an inseparable element of the constitutional system of checks and balances.” Id. at 917 (quotation marks omitted). Thus, Article III, § 1 had a “dual character: one part personal right of the litigant, one part structural principle.” Id.

In response, the United States argued that the bankruptcy courts were located within the Judicial Branch; thus, “neither the Executive nor the Legislature has encroached upon the Judiciary, which means that Waldman’s objection is based upon a waivable ‘personal right,’ rather than a non-waivable structural principle.” Id. But that argument took “too narrow a view of the interests preserved by Article III.” Id. at 918. As Judge Kethledge explained, the issue was “not so much the aggrandizement of the Legislative or Executive Branches,” as it was “the diminution of the Judicial one.” Id. Article III requires that “[t]he judicial Power of the United States, shall be vested” in courts whose judges “shall hold their Offices during good Behavior” and “receive for their Services … a Compensation, which shall not be diminished during their Continuance in Office.” U.S. Const., art. III, § 1. If Congress could “shift the Judicial Power to judges without those protections,” however, then “the Judicial Branch is weaker and less independent than it is supposed to be.” Waldman, 698 F.3d at 918. Thus, Waldman’s objection to the bankruptcy-court judgment “implicate[d] not only his personal rights, but also the structural principle advanced by Article III.” Id. And “that principle [was] not Waldman’s to waive.” Id.

(Three years later, in an opinion by Justice Sotomayor, a majority of the Supreme Court rejected the position taken by Judge Kethledge. Chief Justice Roberts and Justices Scalia and Thomas dissented. See Wellness Int’l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015).)

United States v. Hughes

In United States v. Hughes, 733 F.3d 642 (6th Cir. 2013), Judge Kethledge wrote a majority opinion defending the fundamental principle that the legislative power belongs to Congress, rather than to courts. Albert Hughes was convicted of crack distribution and sentenced shortly before enactment of the Fair Sentencing Act, which reduced the penalties for that offense. On direct appeal, for unrelated reasons, his sentence was vacated. At Hughes’s resentencing, the district court declined to retroactively apply the FSA. On appeal, Hughes and the United States together argued that various statutory provisions—all of which were undisputedly inapposite—revealed a “background sentencing principle” that supported retroactive application of the FSA in Hughes’s resentencing. Judge Kethledge rejected that argument and affirmed.

Judge Kethledge explained that the argument was “more impressionistic than legal”; it had “little to do with what the statutes actually say, and more to do, apparently, with one’s perception of their mood or animating purpose.” Id. at 646. In our constitutional system, however, “statutes are not artistic palettes, from which the court can daub different colors until it obtains a desired effect.” Id. Instead, statutes are the law and are “bounded in a meaningful sense by the words that Congress chose in enacting them.” Id. And using admittedly inapplicable statutes to create a “background sentencing principle,” and then using that principle to negate the statutes that actually governed the issue, “would be no longer to take any of these statutes seriously as law.” Id.

The government also argued that that the FSA’s “overriding purpose was to correct an unjust sentencing scheme[,] and that we ought not perpetuate that scheme by applying it to Hughes’s resentencing.” Id. at 647 (quotation marks omitted) (alteration in original). But Judge Kethledge recognized that the government had directed its argument to the wrong branch of government. He explained that “[n]either policy concerns, nor some general sense of the statute’s overriding purpose, nor the spirit of the age, provides us with any lawful basis to do what Hughes asks us to do here.” Id. The government should have presented the argument to Congress, which “could have included a retroactivity provision in the FSA” or to the President, who “could have granted clemency (and still can) to Hughes and all other defendants similarly situated to him.” Id. Judges, however, were “confined to what the law says.” Id. The court needed “legal grounds, not just equitable ones” to rule in Hughes’s favor, and “those legal grounds [were] absent here.” Id.

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These three cases, and many others, demonstrate the strength of Judge Kethledge’s commitment to enforcing the constitutional separation of powers. See also, e.g., Villegas v. Holder, 640 F.3d 650, 654 (6th Cir. 2010) (explaining that an executive agency’s effort to “strip us of jurisdiction to review the Executive’s decision” is the “sort of arrogation [that] runs through the separation-of-powers tripwires in a way that simple application of a Congressional rule does not”); Hadden v. United States, 661 F.3d 298 (6th Cir. 2011) (“[The plaintiff] seems to regard statutes merely as starting points, from which the courts then develop what he calls ‘federal common law.’ But our task in this case is not to fashion a sort of judicial string theory, under which we develop universal principles that harmonize different statutes with different language. Our task instead is to apply the words of the statute at hand.”).

In our next post, we will analyze how that same resolve shapes Judge Kethledge’s approach to questions of statutory interpretation and agency deference. As a judge on the court of appeals, Judge Kethledge is obviously bound by the Chevron doctrine, which sometimes requires courts to defer to agency interpretations of law. But he has expressed deep skepticism about Chevron, suggesting that it “allocates core judicial power to the executive—or perhaps simply blocks the exercise of judicial power in cases where the doctrine applies.” Raymond M. Kethledge, Ambiguities and Agency Cases: Reflections After (Almost) Ten Years on the Bench, 70 Vand. L. Rev. En Banc 315, 323 (2017). In addition, Judge Kethledge has adopted a Scalia-esque threshold for finding ambiguity—explaining that judges should “work very hard to identify the best objective meaning of the text before giving up and declaring it ambiguous.” Id. at 319. Only by doing that hard work, he explains, can judges “do [their] part to preserve our constitutional separation of powers” and “maintain the rule of law.” Id. at 326–27. More on that in Part 2.


Charles J. Cooper is a founding partner and chairman of Cooper & Kirk, PLLC. Ryan Snyder previously served as a law clerk to Judge Kethledge, and currently practices law in Columbus, Ohio. The views and opinions set forth herein are the personal views or opinions of the authors; they do not necessarily reflect views or opinions of the law firms with which they are associated.

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