Dreaming of Acosta Being Kicked Upstairs?

AcostaOK, it’s the weekend, so we can kick back and gossip and spread rumors.  If you read last Monday’s 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’s 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’s 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’s attempt to overturn the rule (which Acosta’s 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’s 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’t 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’s ethically challenged cabinet members than the boring, straight-laced, and (so-far) ethically untainted Acosta.

Presumably, the climax of these management attorneys’ fantasies would be the appointment of a Scott Pruitt type to head the Labor Department — 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’s deregulatory “accomplishments” have been more rhetoric and failure than actual accomplishment.

The reality is that he’s made less headway than advertised. To date, Pruitt’s 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’s 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’s 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’s are dotted and t’s are crossed is to rely on the experts, the civil servants within EPA.

And EPA’s civil servants are fleeing. (See “Rats,” “Sinking Ship.”)

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’s monster at DOL who would try to rape and pillage worker protections without passing go — 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’ve seen in this administration, undermining an agency’s mission and cutting corners on administrative procedures tends to go hand-in-hand with cutting corners on ethics — 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 — 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’s 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’s enforcement agencies before Congress by making the shockingly un-Republican argument that “Those are priorities. These laws matter. They’ve been passed by Congress. They are the laws of the land. They need to be enforced.”

Which is probably why this cabal of one-martini-over-the-line corporate attorneys would like to show him the door.

Stay tuned.

Alex Acosta Department of Labor

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