President Trump’s second nominee for secretary of Labor came under the microscope on Wednesday but appeared to avoid any major missteps that could imperil his confirmation.
Alexander Acosta, the dean of Florida International University’s law school, was nominated to lead the Labor Department after Trump’s initial choice, restaurant executive Andrew Puzder, backed out amid opposition from Senate Republicans.
Puzder’s nomination generated considerable controversy. After his withdrawal, Trump went with a safer choice in Acosta, a former Republican member of the National Labor Relations Board (NLRB) who has already been confirmed by the Senate three times for other positions.
Judy Conti, federal advocacy coordinator at the left-leaning National Employment Law Project, referred to Acosta as “squeaky clean.”
“He doesn’t have the same sort of skeletons in his closet,” she said.
Here are five takeaways from his testimony.
Republicans are behind him
Republicans made a strong show of support for Acosta during the hearing Wednesday.
Two former GOP presidential candidates, Sens. Marco RubioMarco Antonio RubioMilley says calls to China were 'perfectly within the duties' of his job Overnight Defense & National Security — Milley becomes lightning rod Joint Chiefs Chairman Milley becomes lightning rod on right MORE (Fla.) and Ted CruzRafael (Ted) Edward CruzO'Rourke prepping run for governor in Texas: report Support for Abbott plunging in Texas: poll White House debates vaccines for air travel MORE (Texas), both testified on Acosta’s behalf.
Rubio called him a “brilliant, brilliant legal mind with a deep knowledge of labor issues.”
Cruz, who attended law school with Acosta, offered a more personal take.
“One of the things you get to know about someone over the course of two-and-a-half decades is you learn their character. I can tell you that Alex is a man of character. A man who take very seriously fidelity to the law, fidelity to the Constitution and a man who has a passion for justice.”
While showing no inclination to back Acosta, Democrats acknowledged they were happy to see him on the witness stand rather than Puzder.
Before getting into a couple of fiesty exchanges with Acosta, Sen. Elizabeth WarrenElizabeth WarrenThe Trojan Horse of protectionism Federal Reserve officials' stock trading sparks ethics review Manchin keeps Washington guessing on what he wants MORE (D-Mass.) said: “I’ll be honest, I’m glad it’s not his first choice, Andrew Puzder, who is sitting here today.”
“That said, the test for secretary of Labor is not, ‘Are you better than Andrew Puzder?’ The test is, ‘Will you stand up for American workers?’ ” she added.
There could be an overtime hike coming — but one more modest than Obama’s
Acosta signaled support for increasing the number of low-income workers who are paid overtime when they work more than 40 hours in a week. But he shied away from defending former President Obama’s revision to the overtime rule.
That stance angered Democrats and raised a few Republican eyebrows.
Currently, workers who make less than $23,660 per year qualify for time-and-a-half pay when they work more than 40 hours in a week. But the salary threshold hasn’t been updated in more than a decade and isn’t indexed to inflation.
Under the Obama administration, the Labor Department raised the threshold to $47,476, which it predicted would expand the protections to more than 4 million workers who previously did not qualify.
But a federal judge in Texas halted implementation of the overtime pay hike and is still weighing his decision in the case. Democrats pushed Acosta to defend the rule, but Republicans would like him to start over from scratch.
“Before that overtime rule, workers could be asked to put in extra hours — 60, 70, 80 hours a week — without earning a single extra dollar for the overtime hours they spent away from their families,” Sen. Patty MurrayPatricia (Patty) Lynn MurrayFaith leaders call on Congress to lead the response to a global pandemic Conservation group says it will only endorse Democrats who support .5T spending plan Support the budget resolution to ensure a critical investment in child care MORE (D-Wash.) said at the hearing.
“Do you believe workers should be paid overtime for the overtime hours they work?” she asked.
Acosta refused to take the bait, suggesting that an overtime pay hike is due, at least to the point where it would cover inflation, but declining to uphold the limit set by the Obama administration.
“The world has gotten more expensive, and salaries have changed since 2004,” Acosta said.
“If you were to apply a straight inflation adjustment, I believe the figure if it were to be updated would be somewhere around $33,000, give or take,” he said.
He faced past controversies head-on
Acosta was the head of the Justice Department’s Civil Rights Division during the George W. Bush administration, when one of his deputies set politically motivated criteria for hiring conservative lawyers.
Democrats pressed Acosta on his role in the controversy.
“Your staff referred to conservatives as ‘real Americans,’ ” Murray said, and “called liberal department lawyers ‘commies’ and ‘pinkos.’ ”
“Do you take responsibility for the acts of discrimination that occurred under your leadership?” she asked.
“That conduct should not have happened,” Acosta responded. “It happened on my watch. It should not have occurred. That language should not have been used, and I deeply regret it.”
Democrats also questioned Acosta’s decision as the U.S. attorney in Florida to cut a plea deal with a billionaire who was accused of sexual abuse of a minor.
When asked about it at the hearing, Acosta said he questioned the “strength of the underlying case” against Jeffrey Epstein at the time.
The case against Epstein “would have resulted in zero jail time, zero registration as a sexual offender, and zero restitution for the victims” if he had not cut the plea deal, Acosta said.
Union victories could be at risk
Labor groups were watching closely for any clues about where the Trump administration might be headed on a series of regulations implemented during the Obama administration.
In addition to the overtime increase, unions scored major victories when the Obama administration issued one rule limiting workplace exposure to silica, a cancer-causing substance, and a second rule requiring investment advisers to act in the best interests of their clients.
Warren pressed Acosta for his views on the overtime, fiduciary and silica rules, but he declined to take a firm position on them.
“I have to say, this has really been frustrating,” Warren said. "You have dodged every one of my questions. None of these were trick questions.”
The Labor nominee indicated he would follow Trump’s direction on the three rules, which means the agency could go through the rulemaking process again to repeal them.
He seems on the path to confirmation
Acosta appears poised to sail through the confirmation process after the turmoil over Puzder.
Trump’s Labor nominee only needs a simply majority to be confirmed, and it appears unlikely that any Republican will oppose him.
Only four Republicans have voted against any of Trump’s Cabinet nominees. Most notably, Sens. Susan CollinsSusan Margaret CollinsWelcome to ground zero of climate chaos A tale of two chambers: Trump's power holds in House, wanes in Senate Bipartisan blip: Infrastructure deal is last of its kind without systemic change MORE (Maine) and Lisa MurkowskiLisa Ann MurkowskiEmboldened Trump takes aim at GOP foes The Hill's 12:30 Report - Presented by Facebook - DC prepares for Saturday of festivals & Jan. 6 demonstration Republican leaders misjudged Jan. 6 committee MORE (Alaska) voted against Education Secretary Betsy DeVos. But it doesn’t appear Acosta’s nomination will generate such resistance.