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 recent piece in the Providence Journal (alternate version).


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. 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.


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.

Read the full piece here or here [cross‐​posted from Overlawyered]