Leftism by inaction at Acosta’s DOL

I have documented the fact that Secretary of Labor Alex Acosta studiously avoids making policy and personnel decisions that might alienate leftists. Because 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 a major 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 Acosta inherited from Perez was, of course, made up 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, a year-and-a-half into the Trump administration, Acosta has removed none of them.

Nor has Acosta even replaced the ARB members who have left. Doing so would require him to make choices. And in making them, he might alienate conservatives or, worse from Acosta’s perspective, liberals.

As a result, the ARB is withering away. It now consists, according to the DOL website, of only one member.

That member is Leonard Howie, appointed in January 2017, as the Obama administration was expiring. Howie is a long-time crony of Tom Perez and, like Perez, a committed leftist.

The ARB requires no quorum. Unlike a real tribune, it acts as an agent of the Secretary (which is why previous Secretary’s have removed them at-will). Thus, thanks to Alex Acosta, Tom Perez’s comrade-in-arms is effectively a one-man appellate court. He can issue leftist opinions without any risk of dissent or any need to check with anyone. And, given Acosta’s track record, he can do so secure in the knowledge that the Secretary will not touch him.

Acosta doesn’t need to touch him. With four vacancies, he can negate Howie’s influence by appointing four conservative, or at least center-right, members.

Don’t hold your breath. Even if Acosta makes appointments, I have no confidence that his selections will be conservative or even center-right. As far as I can tell, his mission at the DOL is to stay on the good side of liberals, presumably so that Democrats won’t prevent him from one day becoming a federal judge.

Some readers may recall that, during the Bush years, the Civil Rights Division of the Justice Department came under fire for, gasp, hiring a few conservatives. Acosta, who headed the Division, didn’t make these decisions, but he took blame for what, at least on the pages of the New York Times, et al., was viewed as a major scandal. Acosta stood accused of “presid[ing] over the politicization of the civil-rights division,” perhaps the most “politicized” bastion of leftism in the entire federal government.

Whatever might have true at the DOJ, there is nothing remotely scandalous about a Secretary of Labor in a conservative administration filling positions on the ARB with conservative — or for Tom Perez to have filled them with left-liberals. This is standard practice.

What’s scandalous is for a Secretary of Labor not to fill ARB positions, and by not doing so to allow the board to shrink from five members to one, with the one member being a nakedly partisan holdover of the party that lost the last presidential election.

Time after time, Acosta has shown he will not disturb the portion of the liberal swamp over which he presides. Thus, we are completing year 10 of the Obama Labor Department.

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