Saturday, July 20, 2019


Eugene Scalia, Trump's labor nominee, frustrated Obama's agenda with mastery of legal minutiae


President Trump’s nomination of Eugene Scalia to lead the Labor Department would put one of the private-sector attorneys most responsible for frustrating the Obama administration’s labor policy agenda in charge of the current administration’s agenda.
The cases he worked on indicate that Scalia, son of the late Supreme Court Justice Antonin Scalia, is well-versed in the minutiae of labor law, federal regulations, and agency procedures.
“There is no finer legal mind in the field of labor and employment law,” said Gregory Jacob, a partner with the management-side firm O'Melveny. "Gene knows the subject, knows the Department, and will bring his trademark energy and charisma to implementing sensible reforms to regulations."

Chief Political Correspondent Byron York on the expanded Washington Examiner magazine
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"Throughout his career, Gene has proven himself to be a gifted attorney and a thoughtful and effective expert in labor and workforce policy,” said Retail Industries Leaders Association COO Brian Dodge. Scalia represented RILA in a 2007 case that challenged a Maryland law, Fair Share Health Care Fund Act, that required increased expenditures for employee health programs. The court ruled that the Maryland law, which was tailored to only affect Walmart, was preempted by the federal Employee Retirement Income Security Act.
Scalia, 55, has worked with the private sector management-side firm Gibson Dunn, where he has led its Labor and Employment Practice Group for the past 12 years. A spokesman for the firm declined to comment. Scalia previously served as solicitor for the Labor Department in 2002 during President George W. Bush's administration.
He was a lead attorney in Boeing v. National Labor Relations Board, one of the most high-profile cases for the NLRB, the main federal labor law enforcement agency, in recent years. A 2011 NLRB complaint alleged that comments by a Boeing executive indicated that the company’s decision to open a new factory in South Carolina amounted to an unfair labor practice against the International Association of Machinists, the union that represented the company’s workers in Washington state. South Carolina is a right-to-work state, meaning that workers cannot be forced to join a union as a condition of employment, and as a consequence unions are much less powerful. Had the NLRB complaint stood, it would have made companies moving facilities to those states a potential legal minefield.
Scalia and other attorneys for Boeing challenged the case on the grounds that the NLRB’s acting counsel, Lafe Solomon, lacked the legal standing to pursue the complaint because he hadn’t been confirmed by the Senate. The case was eventually settled out of court in late 2011. However, Boeing’s challenge to Solomon's standing proved prescient. In a separate 2017 case, the Supreme Court ruled that Solomon had been improperly serving as NLRB counsel and voided the complaints he had pursued at the time.
Trump's nominee was also one of the attorneys retained by the Chamber of Commerce when it challenged the Labor Department’s 2017 "fiduciary rule," which would have required all advisers managing tax-privileged retirement accounts to act in their clients' best interests, a legal standard that Obama sought to crack down on conflicts of interest. Business groups challenged the rule, arguing it broadened the definition of fiduciary too far, clashed with existing regulations, and involved a regulatory change that only Congress could approve. A federal court agreed and vacated the rule last year.
Liberal groups argue the nomination of Scalia creates a fox-guarding-the-henhouse scenario. "The Department of Labor rule that would have simply required retirement advisers to work in the best interest of their clients — outlawing common practices such as financial advisers steering retirement savers toward investments that provide a good commission, but a lower rate of return," said Heidi Shierholz, labor policy analyst for the Economic Policy Institute and a former chief economist for the Labor Department during the Obama administration.
Scalia was also part of the Chamber legal team that stopped a 1998 effort by the Occupational Safety and Health Administration during the Clinton administration. OSHA had implemented a policy, called “cooperative compliance,” that required workplaces with injury and illness rates above the norm for their industry to either voluntarily develop comprehensive safety programs with OSHA or face more frequent inspections. Business groups objected, arguing that the program was coercive. The Chamber’s challenge resulted in the program being quashed in federal court in 1999 because the administration had not undergone the proper rulemaking process.

Billionaires Are Behind Efforts to Slow America’s Energy Infrastructure

Source: AP Photo/Gerald Herbert, file
Summer travel season is officially underway. For many Americans that means road trips in the car or heading to the nearest airport to catch a flight. According to AAA, nearly 50 million Americans had plans to travel for Independence Day, and with several weeks until Labor Day the number of travelers is likely to remain high. 
Whether it’s a road trip or plane ride, travel during this time of year is a great reminder of how North American energy helps make efficient and easy travel possible for so many of us. Having reliable sources of safe, affordable energy sources here in the U.S. is a critical part of fueling our everyday life – including our summer travel plans. 
One key component of making sure we have access to North American energy is through a strong national energy infrastructure, including reliable and safe pipelines. Pipelines provide access to affordable energy by helping to deliver energy products like gasoline, jet fuel, and natural gas efficiently to meet the nation’s energy needs. Pipelines are also largely recognized as the safest way of transporting oil and gas, compared to railroads or other ways of transport. 
Over the past several years, the number of pipeline incidents has decreased even as pipeline miles and barrels delivered have both increased. Pipelines remain one of the safest and most efficient ways to deliver energy across the U.S., delivering their energy products safely 99.999% of the time. Some reports also show that pipelines are better for the environment than transporting crude oil by railroad and pose far fewer public health and environmental risks.  
That’s why it’s so alarming that protestors are increasing efforts to prevent current pipelines from being safely updated and improved, and therefore threatening our nation’s energy infrastructure. Honor the Earth is one of the groups working to prevent pipelines from being used as a safe, reliable source of transporting energy to Americans. For example, Honor the Earth was one of the leaders in opposing the Dakota Access pipeline being built, and it’s currently trying to block updates to a pipeline (called Line 3) running through Minnesota, North Dakota and Wisconsin. 
These pipelines have been a critical means of providing needed energy to Americans, especially in the Midwest, but Honor the Earth is focused on undermining our energy infrastructure and preventing safe updates to improve aging pipelines even through it’s safer than transporting oil by railroad. Honor the Earth even recently petitionedMinnesota’s Supreme Court claiming the environmental review of the Line 3 pipeline didn’t adequately review railroads as an alternative to transporting oil by pipelines. 
This seems odd given the environmental track record of railway vs pipeline. But you need only look at the organization’s biggest donors to make sense of it all. Honor the Earth presents itself as an organization intended to protect the environment, but its funded by billionaires like Warren Buffet, who has substantial interests in the railroad industry. In 2017, Honor the Earth listed NoVo Foundation as a top donor, which is funded solely by Warren Buffett and run by Buffett’s son and his wife. But Warren Buffett’s Berkshire Hathaway owns Burlington Northern Santa Fe, the largest freight railroad network in North America.
While Honor the Earth is masquerading as environmentalists, it’s clear they are only doing so when it fits the agenda of their billionaire funders. In the meantime, they are undermining our nation’s energy infrastructure and threatening all Americans’ ability to access safe, affordable, and reliable energy to power our everyday lives. Let’s remember that when we’re on the road this summer. 

Is Corporate America Selling Out Our Country?

Within hours of Pearl Harbor, President Franklin Roosevelt began summoning the heads of American industry to Washington. Roosevelt knew the country would need an unprecedented buildup of planes, ships, and other war materiel. Without hesitation, American companies responded. Ford, Packard, Chrysler, 3M, Hormel, General Mills, Pillsbury, Cargill, Boeing, and many other major U.S. companies gave their all to the war effort. At Roosevelt's request, the president of General Motors even left his company to oversee the war production effort as a lieutenant general in the U.S. Army. Roosevelt's initial request for 50,000 new airplanes per year was openly mocked by the Germans as outlandishly high and impossible to achieve. But the mighty U.S. industrial base roared to life and pulled it off. By war's end, the United States was producing 100,000 warplanes a year. U.S. industry literally transformed itself to save our country. It's fair to wonder if our current CEOs would do the same.
Would American companies in a new globalized economy drop everything for their country? Do American companies even consider themselves American anymore? The Daily Caller News Foundation asked 19 of the biggest names in corporate America if they saw themselves as "American" companies. It shouldn't be a very hard question to answer. But 10 of the 19 -- including Amazon, Apple, Chevron and General Electric -- refused to answer altogether. The others mostly gave weasel answers. Only General Motors and the bank JPMorgan Chase were willing to clearly identify as American institutions. And even with them, the actual record is cause for concern.
Billionaire tech investor Peter Thiel brought this issue to light recently when he accused Google of "seemingly treasonous" behavior for cozying up to the communist Chinese government. Amazingly, Google has been working on a censored search engine: Project Dragonfly, built for the Chinese government and designed to keep the Chinese people from seeing the free flow of information. At the same time, Google refused to work with the U.S. military. Thiel suggested that the FBI and CIA should investigate Google, which seems like a good place to start. More broadly, though, can we really call Google an American company?
Google and many other U.S.-based companies have operations, sales, and customers all over the world. They think of themselves globally. They value the bottom line above all. A dollar made in China is the same as a dollar made in America.
The question for America is whether this is sustainable. Every big company has a Washington office dedicated to influencing U.S. government policy and regulation. With our increasingly powerful government and regulatory regime, it's smart for companies to do this, and there is nothing wrong with it in theory. But now that corporate America is pushing Washington for its often globalist positions instead of for policies that benefit Americans, we may have a real crisis on our hands.
We're not talking about just a few corporate offices. Washington is completely dominated by corporate America. Big companies fund the influential trade associations all over Washington and hire lobbyists all over Congress and the regulatory agencies. These lobbyists understand our increasingly complex labyrinth of regulations. And they are often writing the laws Congress enacts.
Think tanks are supposed to be independently analyzing and commenting on our policies. But who do you think funds the think tanks in Washington? Corporate America dominates in this sphere as well. When they want a new law or to stop a law or regulation they don't like, these companies go even further, hiring public relations firms and ad agencies to convince us of their positions. All of this is a multibillion-dollar business.
Lately, when senators and representatives leave Congress, they go to work for the corporate influence machine. Over two-thirds of the congresspersons who retired or lost their seats this last election cycle is now corporate lobbyists. That's a record level. A seat in Congress has become an extended tryout for a high-paying corporate influence job.
All of this would be of less concern if corporate interests still aligned with actual American interests, but those days seem to have ended sometime between the great industrial ramp-up for World War II and Google's recent siding with communist China over the U.S. military. Where does this leave the American people?