As I have documented, Secretary of Labor Alex Acosta studiously avoids making policy and personnel decisions that might alienate leftists. Inasmuch as Acosta’s predecessor, Tom Perez, made the Labor Department a central player in President Obama’s quest radically to transform America, Acosta’s unwillingness to rock the boat is scandalous. It constitutes a huge victory for the left.
The Administrative Review Board (ARB) epitomizes Acosta’s passivity. The ARB is, in effect, the Labor Department’s appellate court. It’s the body that hears appeals from rulings by DOL administrative law judges.
The ARB’s jurisdiction encompasses key areas of the law, including immigration, Sarbanes-Oxley, Title VII of the Civil Rights Act of 1964, the Clean Air Act, the Federal Water Pollution Control Act, the Fair Labor Standards Act, and the Social Security Act. This, then, is an important arm of the administrative state.
The ARB Acosta inherited consisted of five left liberals. Acosta had the power to remove and replace all of them promptly, which is essentially what Presidents Bush and Obama did.
Instead, Acosta has removed none of them. In fact, he has not even replaced the ones who have left.
Why not? Probably because by not acting he upsets neither liberals nor conservatives (other than me).
But the scandal of Acosta’s inaction doesn’t end here. It extends to the DOL’s administrative law judges (ALJs).
In Lucia v. Securities and Exchange Commission, decided last month, the Supreme Court ruled that the SEC’s ALJs are “Officers of the United States” within the meaning of the Appointments Clause of the Constitution. Therefore, they cannot be hired like a regular government employee, but instead must be hired according to the procedures required by the Appointments Clause. Under that Clause, only the President, “courts of law” or “heads of departments” can appoint such officers.
The Labor Department’s ALJs stand in the same shoes as the SEC’s. Thus, they were unconstitutionally appointed.
Practitioners who appear before DOL ALJ’s tell me that some of the ALJs are horrible and/or biased. The Supreme Court’s decision in Lucia provides Acosta the opportunity to replace them.
Last December, Acosta ratified the prior appointment of all Department of Labor ALJs. However, the Supreme Court, in a footnote in Lucia, declined to embrace (or condemn) ratification as a cure for unlawful appointment.
Accordingly, Acosta could name new ALJs to replace the ones whose performance and/or bias merits removal.
Unfortunately, Acosta has no desire to do so. If he won’t even fill vacant ARB slots, he’s clearly not about to remove ALJs.
Liberals would be displeased, and Acosta’s number one agenda item appears to be not incurring their wrath. Draining the swamp, or even touching it, is off the table.