If you read last Monday‚Äôs¬†Punching In¬†by Bloomberg Law crack reporters Benn Penn and Chris Opfer, you know that there are some management attorneys who are less than enamored of Alex Acosta‚Äôs less-than-stellar deregulatory accomplishments and wish President Trump would kick him upstairs to a judgeship, which (rumor has it) is where the 49 year old former federal prosecutor would like to end up eventually.
After all, 15 months after Trump‚Äôs inauguration and one year after Acosta was sworn in, construction workers are still breathing air free from cancer causing silica dust, thanks to the efforts of the dreaded Obama administration.¬† Never mind that the court unanimously rejected the industry‚Äôs attempt to overturn the rule (which Acosta‚Äôs Labor Department vigorously and successfully defended.)
But hope springs eternal. The general industry Silica standard has not yet taken effect, so the Administration could theoretically still succeed in giving foundry workers the right to get cancer at work.
Taking Acosta‚Äôs place in these corporate fever dreams would be the newly appointed and allegedly less cautious Deputy Secretary of Labor Pat Pizzella. It seems that for some people there aren‚Äôt enough Trump Cabinet agencies embroiled in scandal and the Jack Abramoff-tainted Pizzella would undoubtedly be a much better fit with the rest of Trump‚Äôs ethically challenged cabinet members than the boring, straight-laced, and (so-far) ethically untainted Acosta.
Presumably, the climax of these management attorneys‚Äô fantasies would be the appointment of a Scott Pruitt type to head the Labor Department ‚ÄĒ without the daily scandals of course.¬† But this raises some issues.
First, as former OMB analyst (and current Rutgers professor) Stuart Shapiro¬†wrote¬†last week, Pruitt‚Äôs deregulatory ‚Äúaccomplishments‚ÄĚ have been more rhetoric and failure than actual accomplishment.
The reality is that he‚Äôs made less headway than advertised. To date, Pruitt‚Äôs EPA has been taken to court repeatedly over efforts to delay or repeal regulations finalized near the end of the Obama administration.¬†His record in court on these issues is not good. The courts have struck down¬†six attempts¬†to delay or roll back regulations on pesticides, lead paint and renewable-fuel requirements,¬†The New York Times¬†reported.
The main reason for Pruitt‚Äôs failures is that he is no better at complying with regulatory rules than his is with ethics rules.
Repealing a regulation¬†is hard.¬†In fact it is just as hard as enacting one. In his haste to dismantle President Obama‚Äôs environmental legacy, Pruitt has skirted the procedural requirements necessary to defend his actions in court.¬† Those procedures are not easy to follow,¬†but failure to follow them means near-certain defeat in the courts.¬†The best way to make sure that the i‚Äôs are dotted and t‚Äôs are crossed is to rely on the experts, the civil servants within EPA.
And EPA‚Äôs civil servants are fleeing. (See ‚ÄúRats,‚ÄĚ ‚ÄúSinking Ship.‚ÄĚ)
Acosta, to his credit, seems to understand that problem, aside from the¬†momentary lapse¬†when he neglected to include the economic analysis of his tipping rule. But with the help of Congress, everyone pretty much kissed and made up over that too.
Yes, in theory, Acosta could ride into the sunset to be replaced with a Scott Pruitt/Andy Puzder Frankenstein‚Äôs monster at DOL who would try to rape and pillage worker protections without passing go ‚ÄĒ and without complying with the Administrative Procedures Act, the OSH Act or the many other laws that lay out rulemaking procedures based on the tiresome requirements of evidence, science and public input.
But as we‚Äôve seen in this administration, undermining an agency‚Äôs mission and cutting corners on administrative procedures tends to go hand-in-hand with cutting corners on ethics ‚ÄĒ as well as the law.¬† Not a very good combination if your goal is to actually get something accomplished.
Alex Acosta may not my my ideal Labor Secretary by a long shot ‚ÄĒ and he will certainly never live down his infamous naming of¬†Ronald Reagan¬†to the Labor Hall of Honor (a deed that will be as hard to live down as Mitt Romney heading out on the family vacation with his dog strapped to the top of this car,) but he‚Äôs about the best we could expect in a Trump administration that sports such Cabinet luminaries as Scott Pruitt, Ben Carson, Jeff Sessions, Ryan Zinke, Steve Mnuchin and Betsy DeVos.
After all,¬†he actually¬†defended his failure to slash the budgets¬†of DOL‚Äôs enforcement agencies before Congress by making the shockingly un-Republican argument that ‚ÄúThose are priorities. These laws matter. They‚Äôve been passed by Congress. They are the laws of the land. They need to be enforced.‚ÄĚ
Which is probably why this cabal of one-martini-over-the-line corporate attorneys would like to show him the door.
This blog was originally published at Confined Space on May 5, 2018. Reprinted with permission.
About the Author: Jordan Barab¬†was¬†Deputy Assistant Secretary of Labor at OSHA from 2009 to 2017, and spent 16 years running the safety and health program at the American Federation of State, County and Municipal Employees (AFSCME).