Critique of Judicial Restraint in the Regulatory Sphere
The current discourse concerning the appropriate scope of judicial review over executive actions, particularly in the regulatory realm, often appears to be influenced by past political battles. Some critics on the political left have continued to characterize judges as “activist” for rulings that restrain the executive branch, specifically referencing assertions of power made by the previous Obama administration. This stance, however, may be shortsighted given the potential for future administrations to implement expansive executive orders and regulations.
Analysis of the Department of Labor Overtime Rule Injunction
A notable instance of this criticism involved a column in Bloomberg View by Harvard Law professor Noah Feldman, who took issue with federal district judge Amos Mazzant III’s decision to enjoin the Department of Labor’s overtime rule for mid-level employees.
The critique against Judge Mazzant included an unsubstantiated personal insinuation regarding the judge’s potential desire for judicial advancement under the new administration following the election results. Such a suggestion lacked evidentiary support, especially considering that Judge Mazzant is an appointee of the very administration whose rule he enjoined. This type of gratuitous personal jab detracts from a substantive discussion of the legal principles at stake.
The issues with the Department of Labor’s overtime rule were multifaceted, encompassing both substantive and procedural defects. Procedurally, the Department of Labor (DOL) was accused of failing to allow sufficient public comment. For example, “more than 145 charitable nonprofits signed a letter begging the department to allow more than a 60-day public comment period. It refused.” This letter is publicly available here. Furthermore, the DOL’s regulatory overreach has been challenged successfully in other contexts, such as the Department’s “persuader rule,” which sought to regulate management-side lawyers and consultants before being struck down by a court. Additional commentary on the persuader rule’s legal challenges has been provided by Daniel Fisher and the ABA Journal.
The Non-Partisan Role of the Judiciary
It is important to recognize that a significant number of rulings that have restrained the Obama administration’s actions have been authored or joined by judges appointed by Democratic presidents. This phenomenon underscores a crucial point: Judges rule all the time against the partisan side that appointed them.
This independence is a vital feature of the American legal system. The value of an energetic judiciary that maintains a watchful spirit against the encroachments of presidential power becomes particularly evident when considering the potential for a new administration—regardless of its political affiliation—to pursue an aggressive regulatory agenda. The same principle that saw Democratic-appointed judges check a Democratic executive will be essential when 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.
Ultimately, the proper focus should not be on partisan outcomes but on celebrating a judiciary that fulfills its constitutional role of checking the executive branch.
