President Donald Trump has officially nominated Eugene Scalia to head the Department of Labor, whose fiduciary rule Scalia helped kill, according to news reports.
In July, Trump announced on Twitter his intention to tap Scalia, a partner at law firm Gibson, Dunn & Crutcher and the son of the late Supreme Court Justice Antonin Scalia. Yesterday, the White House put out Trump’s intent to nominate him on its website, describing Scalia as “a renowned labor, employment, and regulatory lawyer,” the Hill writes.
It would take weeks for Scalia to take up the role as head of the DOL, however, according to the publication. Before his nomination could reach a full vote in the Senate, Scalia must first appear before the Senate Health, Education, Labor and PensionsCommittee after the chamber’s summer recess, the Hill writes.
The White House’s announcement also says that in 2001, "Scalia joined the Department of Labor as Solicitor of Labor, the Department’s principal legal officer with responsibility of a broad range of regulatory and enforcement matters.”
But the announcement doesn’t mention Scalia’s work to defeat the DOL’s own fiduciary rule, the Obama-era legislation that purported to require retirement account advisors to put clients’ interests first.
Scalia represented Sifma and the U.S. Chamber of Commerce in a legal challenge to the rule,as reported.
In 2016, Scalia argued that the DOL was overstepping its authority and asked a federal court in Texas to vacate the rule. Last spring, theU.S. Court of Appeals for the Fifth Circuitdid exactly that.
The DOL said in May that it would roll out a new version of the rule at the end of the year. But last month, the agency lost Labor Secretary Alexander Acosta, who resignedover mounting criticism of his role in negotiating the plea deal of convicted sex offender Jeffrey Epstein in 2008,as reported.
Epstein took his life while in custody in a New York jail cell earlier this month.
Scalia, meanwhile, may be prevented by ethics rules from participating in the rule’s rollout, lawyers have said.
Because government rules usually bar officials from participating in issues in which they had taken part while in the private sector, Scalia may have to recuse himself from drafting the DOL’s new fiduciary rule. In case of a recusal, other officials at the DOL would take up senior decisions on the rule.