On July 18th President Trump announced his intention to nominate Eugene Scalia to replace former Secretary of Labor Alexander Acosta. Gene Scalia is the son of late Supreme Court Justice Antonin Scalia. In 2002, following an appointment by former President George W. Bush, Gene Scalia served as solicitor of the Department of Labor.
Mr. Scalia has a history of fighting agency regulatory actions, including an appeal to the U.S. Court of Appeals for the District of Columbia related to the broadened use of the General Duty Clause to employers. Mr. Scalia was the appellate attorney who argued the case of Secretary of Labor v. SeaWorld before that Court. In that case, one of the primary arguments related to the expanded use of Section 5(a)(1) of the OSH Act, or, as it is more commonly known, the General Duty Clause. Mr. Scalia argued that it was not the intent of the Act to apply to every working scenario such as the work with whales at SeaWorld or football players playing in the NFL. In a 2-1 decision, the Court’s decision upheld the agency’s citation to SeaWorld, however, Judge Kavanaugh (current Supreme Court Justice) wrote a dissent in which he stated, “it is simply not plausible to assert that Congress, when passing the Occupational Safety and Health Act, silently intended to authorize the Department of Labor to eliminate familiar sports and entertainment practices, such as punt returns in the N.F.L., speeding in Nascar, or the whale show at SeaWorld.”
By many, Mr. Scalia would be an asset to the Department of Labor.