By Don McIntosh
Presidents are not kings. Under the U.S. Constitution, it’s Congress’ job to make the laws, and the president’s job to “take care that the laws be faithfully executed.” Yet within days of his arrival in the White House, Donald J. Trump announced a new approach to his obligation to enforce the nation’s laws: an executive order directing all federal agencies under his authority to repeal two regulations for every new regulation they issue.
When it comes to rules protecting worker safety, that’s not just two steps backward for every step forward; it’s also unconstitutional, the Communications Workers of America (CWA) is arguing in a federal lawsuit. Together with Public Citizen and the Natural Resources Defense Council, CWA says the executive order is unconstitutional because it requires agencies to exceed the scope of the authority delegated to them by Congress, and violates the statutes under which the agencies operate.
Congress has delegated great rule-making authority to modern presidents. Dozens of executive branch agencies today have legal authority to issue and enforce new rules — but the agencies were given that authority by Congress to achieve goals that Congress spelled out in the laws that created them. In other words, Congress gave the president specified authority to make rules, not to repeal them.
Worker safety is a perfect example. The Occupational Safety and Health Administration (OSHA) — to further its statutory mission “to assure safe and healthful working conditions for working men and women” — sets and enforces detailed rules known as “standards” for things like fall protection and chemical exposures.
“Health and safety regulations are written in the blood of working people,” CWA President Chris Shelton said in a press statement about the lawsuit, “and this executive order treats those lifesaving rules like bargaining chips. Essentially, it tells workers: ‘If you want to be free from asbestos, you’ll need to contend with lead poisoning or infectious disease.’”
Deregulation might sound good in the abstract
In his campaign and in office, Trump’s constant narrative has been that regulations are burdensome. Many Americans agree in the abstract yet disagree when they learn the details. That’s because when it comes to regulations, there are burdens either way. Take toxins: You could require employers to shoulder the burden of preventing worker exposure to hazardous substances, or you could let workers suffer the burden of debilitating and fatal diseases.
Even though OSHA strives to find the most practical, cost-effective methods of preventing occupational injuries and diseases, business groups mount major political and legal fights against new requirements.
For example, late in 2016, the Obama-era OSHA announced a new rule: To improve the effectiveness of OSHA investigations, employers would have to accurately record injuries in the workplace and keep those records for five years. Business groups said that was too burdensome. In early 2017, the Republican Congress passed a bill striking down the rule, and Trump signed it into law.
The lawsuit continues
In its lawsuit, CWA asks the court to declare Trump’s order unlawful and bar agencies from implementing it. But that hasn’t happened yet. On Feb. 26, 2018, a federal district court judge ruled that CWA and the other groups don’t have standing to sue because they didn’t identify particular members who would be harmed. The judge didn’t reject the merits of their argument, however, and he left the door open for them to show that concrete harm has been done. The groups filed further arguments April 2.
Since Trump issued the “one in, two out” executive order, progress on new rules to protect workers appears to have halted. More than a dozen prospective rules have been taken off the official list of new regulations being developed by OSHA and the Mine Safety and Health Administration, including standards on combustible dust, workplace violence, infectious diseases, noise in construction, styrene, 1-bromopropane, and an update to permissible exposure limits to hazardous substances.
Meanwhile, new rules developed during the Obama Administration have had their enforcement officially delayed, including rules on exposure to silica and beryllium.
Putting business in charge of regulating business
Worker safety doesn’t appear to be a priority for the Trump Administration. The administration had been in office six months before it sent anyone at all to lead OSHA. It wasn’t until September 2017 that Trump announced a nominee to head the Mine Safety and Health Administration — former coal mine executive David Zatezalo. And it wasn’t until the end of October 2017 that he announced a nominee to head OSHA — Scott Mugno, an executive at FedEx who chaired the safety policy committee at the U.S. Chamber of Commerce. Mugno has yet to be confirmed by the Senate.
Burying the dead — deep in OSHA’s web site
Until the Senate confirms Mugno, White House appointee Loren Sweatt — a former adviser to Republican members of the House Workforce Committee — is in charge of OSHA. Thus far, Sweatt has acted in small, revealing, symbolic ways. Two weeks after she took charge of OSHA in July 2017, the agency removed a constantly-updated list of the names and details of workers killed on the job from the home page of its web site, and replaced it with a new feature: “OSHA Working With Employers.” The agency also took down a video on how to file a complaint.
Trump’s worker safety wish list: cuts to research, training, and accident investigation
In its budget request to Congress, the Trump Administration also called for dramatic budget cuts or the outright elimination of several safety programs:
- NIOSH The National Institute for Occupational Safety and Health is part of the Centers for Disease Control (CDC). With 1,300 employees and an annual budget of $335 million, NIOSH is the nation’s top source of research on work-related injury and illness. It operates or funds research centers and training programs around the country, including Seattle, Portland, and Spokane. In 2017 and again in 2018, the Trump Administration proposed to cut the NIOSH budget by 40 percent, to $200 million.
- U.S. Chemical Safety and Hazard Investigation Board — an independent federal agency with a budget of $11 million and a staff of 42 — investigates industrial chemical accidents. In 2017 and again in 2018, the Trump Administration proposed to eliminate it, saying it duplicates work by other agencies.
- OSHA’s Susan Harwood Grant program gives grants to unions, business groups, and other nonprofits to pay for worker safety trainings. It’s been around almost 40 years, and its budget is $10.5 million a year. In Portland, it pays the Voz Workers’ Rights Education Project to provide a monthly worker safety training. In Seattle, it recently paid for fall prevention training for 550 Spanish-speaking construction workers. A national grant to the Laborers union has funded training for over 7,300 mostly young, minority, entry-level workers who work as flaggers in dangerous highway work zones. In 2017 and again in 2018, the Trump Administration proposed to eliminate the Susan Harwood grant program. Why? The administration’s official note to Congress says OSHA has no evidence the program is effective, and that it’s not clear the trainings wouldn’t happen without federal subsidy; the administration proposes to replace it with unspecified training provided by OSHA employees.
“We have to do more with less,” Trump’s Secretary of Labor Alex Acosta told a Congressional committee last June about the proposed cuts to safety programs. [This is the same administration that asked the Pentagon to do less with more — boosting military spending $80 billion while drawing down troops in Iraq — and that signed a set of tax cuts that will cost the federal treasury $2.3 trillion over the next 10 years.]
The Republican-led Congress rejected the Trump Administration’s proposed cuts to worker safety budgets, and instead passed omnibus budget bills in 2017 and 2018 that froze federal workplace safety budgets at their previous levels.