President Trump is asked from time to time about Secretary of Labor Alex Acosta. The questions arise because Acosta gave a sweetheart deal to pedophile Jeffrey Epstein and, according to a federal judge, violated victims’ rights law in the process. Thus, it’s fair to wonder why Acosta still has his Cabinet-level job.
In answering this question, Trump likes to say that Acosta is “doing a great job.” But I’ve never heard Trump explain why he thinks so.
From a conservative perspective, Acosta has done a terrible job on immigration law, wage and hour law, and anti-discrimination in employment law. That’s why Obama-era administration officials and the AFL-CIO are pleased with his performance.
Maybe Trump is confusing Alex Acosta’s work with that of Alex Azar, the Secretary of Health and Human Services. Trump sometimes lumps the two together as his “two Alex’s.”
Is there anything Acosta can point to as a conservative accomplishment? Yes. There is one thing, or was until last week.
The Acosta DOL issued regulations to promote “association health plans” (AHPs). These rules would enable small businesses and self-employed people to obtain health insurance that costs less, because it covers less, than Obamacare plans.
You can get the technical details underlying the rule here or from the court opinion discussed below. In essence, the rule, through its definition of “employer” for purposes of ERISA, loosens restrictions on which organizations can join or create an AHP and thereby take advantage of the status AHPs have under Obamacare.
The DOL rule Acosta came up with enables employers to form an AHP based on either industry or geography. Virtually any association of disparate employers connected by geographic proximity can qualify.
This is an interesting way to circumvent Obamacare’s oppressive one-size-fits-all mandate. But is it legal?
Last week, a federal judge ruled that it isn’t. Judge John Bates of the U.S. District Court for the District of Columbia found that the rule’s definition of “employer” extends beyond what ERISA’s text and purpose will bear. Indeed, Judge Bates called the Acosta DOL’s interpretation of that term “absurd.”
In my opinion, Judge Bates is one of President George W. Bush’s most disappointing judicial nominees. This particular decision seems carefully reasoned, but I take no position as to whether Bates reached the legally correct result.
What’s important for present purposes is that the one conservative thing Alex Acosta has done in his nearly two years at DOL has been undone.
What are the chances of overturning Judge Bates’ decision on appeal? I rate them as low. The D.C. Circuit continues to be dominated by left-wing Democrats. As disappointing as Judge Bates has been, he’s not to the left of the Democratic appointees to that court.
Thus, unless the DOL gets very lucky, I don’t see the D.C. Circuit reversing Bates’ decision. Moreover, it seems unlikely that the Supreme Court will review this case. Chief Justice Roberts and Justice Kavanaugh probably won’t be looking for another Obamacare-related case to decide.
Thus, the one conservative venture of the Acosta DOL looks destined to fail.
I don’t blame Acosta for trying, assuming that Judge Bates is wrong and the attempt was not “absurd.” But there are a great many conservative things Acosta could have done without running into a legal brick wall.
For example, the Secretary has the right not to pursue employment discrimination cases based on left-wing legal theories. And he has a greater likelihood of success when it comes to writing wage and hour regulations than when it comes to writing regulations that circumvent Obamacare.
In any event, these acts are not mutually exclusive. Acosta could have pursued his association health plan agenda and implemented a conservative agenda on issues that fall more clearly within the DOL’s traditional portfolio.
Had he done so, Acosta would have something to show for his time in office, and President Trump would have something with which to back up his claim that Acosta is doing a great job. As it is, neither can point to anything of substance.
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