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More on the overtime rule ruling

From the NYT:

Over the last two years, Federal District Court judges in the state have chipped away at Mr. Obama’s legacy by striking down or suspending no fewer than five regulations, executive orders or actions, and guidelines, including an action that would have allowed illegal immigrants who are parents of United States citizens to remain in the country, and guidance that would have expanded restroom access for transgender students.

The injunction in the overtime case, issued on Tuesday by a judge nominated by Mr. Obama, has many advocates and legal experts concerned.

“It’s a troubling trend because it’s essentially delegating policy oversight to a set of handpicked judges in the South, who can pick and choose which regulations move forward and which do not,” said Matthew Wessler, a principal at the firm Gupta Wessler who has argued multiple cases involving workers before the Supreme Court.

[…]

In an interview, the Nevada attorney general, Adam Paul Laxalt, whose state was the lead plaintiff in the case against the overtime rule, said that the coalition of states it led had elected to file in the Eastern District of Texas because the district had a reputation for handing down rulings quickly.

“That was what is known as a fast docket,” Mr. Laxalt said. “The decision was made based on a bunch of variables, but we thought we may be able to get the quickest answer.” Citing the Dec. 1 effective date for the new regulation, he said, “We were really fighting the clock.”

Mr. Laxalt added that Nevada had been part of multistate litigation that was filed in other states, including a case over a rule regulating waterways, which was filed in North Dakota.

[…]

Even though the federal judge who ruled on the overtime regulation, Amos L. Mazzant III, was formally nominated by Mr. Obama in 2014, the influence of Mr. Cruz and Mr. Cornyn made it unlikely that he would be overly sympathetic to federal regulations, Mr. Levy said.

Still, the sweep of Judge Mazzant’s decision appears to have surprised even skeptics of the regulation.

The Obama regulation raised the annual salary limit below which workers are automatically eligible for overtime pay — something that previous administrations, including George W. Bush’s, had done several times since 1938 — to $47,476, from $23,660.

In his ruling, however, Judge Mazzant suggested not simply that the administration lacked the authority to raise the salary limit so high, but that no administration had the authority to establish and raise a salary limit of any kind.

Nothing in the law, he wrote, “indicates that Congress intended the department to define and delimit with respect to a minimum salary level.”

(Judge Mazzant retreated from the implications of this statement in a footnote asserting that he was determining the legality only of the Obama regulation.)

Asked if he agreed with the judge that the Labor Department lacked the authority to create a salary limit of any kind, not just the new level developed by the administration, Mr. Laxalt, the Nevada attorney general, said, “We do think the judge got it right when he said it’s unclear whether or not they can do an arbitrary salary test,” but confessed that he wouldn’t necessarily follow the ruling to its logical conclusion.

“I’m not prepared to say categorically we’re opposed to the 23,000,” the limit established by George W. Bush, he said.

For his part, Thomas E. Perez, the labor secretary, argued in an interview that it simply was not possible to single out the Obama salary limit as extreme or arbitrary while accepting the previous increases, since the new limit was in line with some of them.

“If we had simply indexed the 1975 threshold to inflation, that number would be well in excess of what our current threshold is,” he said — about $57,000 annually.

The administration is widely expected to appeal the ruling, given the extensive history of such increases, and many management-side lawyers believed that Judge Mazzant was out on a limb.

“The Labor Department has been setting these minimums since 1940,” said Allan Bloom of the law firm Proskauer Rose. “This is the first time that a district court judge is essentially saying you don’t have the authority to do that.”

See here for the background. Kevin Drum brings the charts to show why the Labor Department’s rulemaking was well within the bounds of past precedent and should have been respected. It’s telling that even the lead plaintiff, who got everything he wanted and then some, didn’t quite fully embrace Judge Mazzant’s reasoning. I suppose that’s a small sliver of hope that the Fifth Circuit could reel him in, but you know what what it means to have to rely on the Fifth Circuit.

And of course to some extent this is all play acting at this point. The Trump Labor Department, which will no doubt be run by someone who longs for the days of indentured servitude and who thinks child labor laws are an affront to common decency, can simply repeal this directive at its discretion. And if you’ve been applauding these district court judges essentially making national policy, just remember that two can play this game. I think this is a bad way to run a government, but if it’s the reality we’re now in, then it is what it is.

UPDATE: The Labor Department has asked the Fifth Circuit for a quick hearing of their appeal.

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One Comment

  1. Robert Nagle says:

    Unfortunately, after the transition, the Labor Department could withdraw this appeal with the wave of a hand.

    There are a lot of retail workers who will be hurt by this rule. Curiously, public school teachers are exempt from the proposed ruling, revealing how limited in scope the proposed regulations actually are. The 47,000 figure came after a compromise that dropped the amount from the original proposed limit.

    I feel that the legislature has dragged its feet on many issues (like immigration, climate change, minimum wage, etc), leaving the executives to impose regulations which may or may not be allowed under the agency’s charter.

    On climate change for example, the Clean Power Plant plan (and a Supreme Court ruling) could be waved away with a one sentence law that the Clean Air Act doesn’t apply to C02 emissions. What are the odds that a Republican controlled legislature and a Republican controlled Executive will pass that law?