Fighting the last war, on courts and executive power

Some on the left are still blasting judges as activist for standing up to Obama administration assertions of executive power in the regulatory sphere. That might prove shortsighted considering what’s on the agenda for the next four years, or so I argue in a piece in Sunday’s Providence Journal.

I take particular exception to a Bloomberg View column in which Noah Feldman, professor at Harvard Law, assails federal district judge Amos Mazzant III for enjoining the Department of Labor’s overtime rule for mid-level employees (earlier). In a gratuitous personal jab, Feldman raises the question of “whether Mazzant sees an opportunity for judicial advancement with this anti-regulatory judgment” in light of the election results, though he offers not a particle of evidence that the judge, an Obama appointee, is angling for higher appointment under the new administration.

The problems with the overtime rule were both substantive and procedural. As I mention in the piece, “more than 145 charitable nonprofits signed a letter begging the department to allow more than a 60-day public comment period. It refused.” That letter is here (via, see Aug. 5, 2015 entry). I also mention that a court recently struck down the Department of Labor’s very bad “persuader rule” that would have regulated management-side lawyers and consultants; more on that from Daniel Fisher, the ABA Journal, and earlier.

After pointing out that many of the rulings restraining the Obama administration have been written or joined by Democratic-appointed judges, I go on to say:

Judges rule all the time against the partisan side that appointed them.

And we’ll be glad of that when the Trump executive orders and regulations begin to hit, and Republican-appointed federal judges are asked to restrain a Republican White House, as they have often done in the past.

We should be celebrating an energetic judiciary that shows a watchful spirit against the encroachments of presidential power.


  • A strong judiciary is a good thing. An activist judiciary is a bad thing. A strong judiciary restrains your opponents. An activist judiciary restrains your allies.

    Bad, bad activist judiciary!


  • I’d say the problem with the overtime ruling isn’t an activist judge, but a DOL that failed to follow the legal process for rule changes, and also made an unjustifiably large and sudden change – there’s no way that the DOL can argue that doubling the limit in one step is required by inflation unless they admit to being derelict in the 7 years under the same administration that they didn’t change it.

    This last-minute reversal leaves employers who were making changes to conform to the new rule in a tough spot, but that’s the DOL’s fault for trying to force through to big an increase on too short of a time scale.