//  3/24/17  //  Quick Reactions

On Wednesday, while much public attention was focused on Judge Gorsuch’s confirmation hearings, another Trump nominee also underwent a hearing: Dean Alexander Acosta, Trump’s second nominee for Secretary of Labor. There is an air of inevitability regarding Acosta’s confirmation, and even a couple of labor unions have endorsed him. Still, Acosta’s record on labor issues is relatively thin, and anyone hoping to learn more about his substantive views on a list of key issues was likely disappointed. But what that hearing did make crystal clear was how the combination of President Trump’s “skinny budget” proposal, together with his orders on regulations and on the federal workforce, threaten even popular and effective government programs.  

Many Questions, Few Answers

To the apparent frustration of several Democrats and at least one Republican, Acosta offered very few specifics during his nearly three-hour hearing. For example, Acosta was repeatedly questioned by senators from both parties about his views on the “overtime rule,” which doubled to $47,476 the annual salary threshold below which workers are entitled to overtime pay. Acosta implied that he was unlikely to support the rule in its present form, but declined to state support for another threshold, although he observed that setting the overtime bar at $33,000 would keep pace with inflation. That answer drew criticism from Senator Tim Scott, who dryly observed that “these are things you should be contemplating already.”

That dynamic—in which Acosta refused to give concrete answers about his support for specific existing rules or programs, promising only to look at the issue once he was confirmed—recurred countless times during the hearing. Thus, while Acosta had no “grizzly bear” moment, his hearing also did little to give either the senators who will eventually vote on his confirmation or the public a clear sense of his stance on key issues: how the Department of Labor (DOL) should protect immigrant workers; regulation of the gig economy; enforcement of the silica exposure rule without delay; the potential insolvency of the Central States Pension Fund; and the gender pay gap.

Trump & Agency Destabilization

Yet, one did not get the impression that Acosta was stonewalling in order to hide his own views. Rather, he hinted at another reason: Donald Trump’s inconsistencies on key labor policies. When Ranking Member Patty Murray asked whether Acosta would make maintaining the budget for DOL’s women’s bureau a priority, Acosta responded as follows: “I’m happy to say it’s a priority. I believe in a unitary executive, and so I don’t think any cabinet secretary can make commitments, because ultimately, we have a boss.” But a cabinet member appointed by a less mercurial President could probably make at least general commitments with a reasonably high degree of certainty. Acosta’s inability to do even that reflects the reality in which agencies now operate.

Acosta’s answers also revealed how Trump’s skinny budget—coupled with his executive orders and memoranda on the federal workforce, the organization of the executive branch, and regulatory reform—portend massive changes at DOL, as at other agencies. Trump’s budget proposal calls for a 21 percent cut at DOL, without directing where many of those cuts would fall. Trump’s various executive orders call for the Director of OMB to reorganize and possibility eliminate agencies or programs; for agency heads to create regulatory reform task forces to search for existing regulations to repeal or modify; and for a freeze in federal workforce hiring, with only limited exceptions.

Acosta’s hearing offered a window into the severity of those directives, especially when combined. Even when Republican senators asked him about popular programs that tangibly help workers in their home states, Acosta could not commit to their preservation. For example, Senator Susan Collins praised a Trade Adjustment Assistance Act program that was “crucial” in helping displaced manufacturing workers in Maine. Acosta acknowledged the value of the program Collins described, but then added that “dollars are going to be more scarce, and so we are going to have to make difficult decisions,” and quickly too: “budget season is already upon us.” Likewise, Acosta could not answer favorably when Senator Maggie Hassan asked for a commitment that the already limited budget for OSHA inspectors—of whom there are only seven in the entire state of New Hampshire—would not shrink further, or when numerous senators attempted to extract promises that DOL would protect their states’ job corps programs.

In other words: There is no way to cut one-fifth of DOL’s budget without losing programs that meaningfully help people, including many of the people Donald Trump specifically promised to help during his campaign. The hiring freeze makes things worse—large agencies will inevitably lose people at inopportune times who make key programs run, and face prospects of doing ever more with less—not to mention the possibility of OMB-imposed large-scale restructuring.

Acosta’s hearing wasn’t the highest profile hearing of this week, but it did show how the purported Administration plan to “deconstruct” agencies is proceeding apace in ways that could leave many ordinary Americans worse off.

The Affordable Care Act Does Not Have An Inseverability Clause

11/5/20  //  In-Depth Analysis

Contrary to challengers’ claim, Congress nowhere directed the Supreme Court to strike down the entire ACA if the individual mandate is invalidated. Congress knows how to write an inseverability directive, and didn’t do it here. That, combined with Congress’s clear actions leaving the ACA intact and the settled, strong presumption in favor of severability, make this an easy case for a Court that is proud of its textualism.

Abbe R. Gluck

Yale Law School

Versus Trump: Are Tax Returns Coming Soon?

7/18/20  //  Commentary

On this week’s Versus Trump, Jason and Charlie discuss the Supreme Court's pair of decisions governing Trump's tax returns. Are they coming soon? Did the Democrats make a mistake in not being more aggressive in invoking the impeachment power? Listen now!

Charlie Gerstein

Gerstein Harrow LLP

Jason Harrow

Gerstein Harrow LLP

The Fight for Contraceptive Coverage Rages in the Time of COVID-19

5/6/20  //  Commentary

Even the Supreme Court has been required to take unprecedented steps by closing the building, postponing argument dates, and converting to telephonic hearings. Those impacts should be reflected in all aspects of the Court’s work, including the decisions it renders for the remainder of this term.

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