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Ours are not the only authors to note that the substantive work of federal agencies has become increasingly difficult to distinguish from purely partisan politics. As goes the White House, so go agency rules, guidance documents, policies, practices, and (new in 2021) General Counsel. Many labor experts are wondering whether federal agency officials should push legal boundaries to achieve the policy goals of a given administration unless and until they are judicially restrained.
When these agency leaders issue rules and orders, should they interpret their statutory and constitutional constraints like judges—trying to find the right, even if not the favorable, answer—or is that the job of the courts, leaving agencies to act as advocates? How do the Supreme Court’s recent decisions in Axon Enterprise v. FTC, Starbucks v. McKinney, SEC v. Jarkesy, and Loper Bright Enterprises v. Raimondo inform our answers to these important questions? Is closer judicial scrutiny of agency work a proper and predictable response to policy flip-flops and edgy agency actions?
The Federalist Society’s Labor & Employment Practice Group will host a breakout panel addressing these questions and more at this year’s National Lawyers Convention. Please join us in person or via livestream on Saturday, November 16, at 11am.
