On Law Day: Highlighting Acosta’s Speech to RNLA on the Rule of Law and Liberty

Last week, RNLA hosted its 19th annual National Policy Conference. The Conference was a huge success. Today, on Law Day, we choose to highlight one of those addresses: R. Alexander Acosta, current Secretary of Labor and former U.S. Attorney for the Southern District of Florida and Dean of the Florida International University College of Law. (emphasis mine)

I can think of no topic that is more important than the rule of law. . . .

That is deregulation to preserve liberty. [applause] The word liberty appears in the Declaration of Independence, the Constitution and the Pledge of Allegiance. But here's a question for all the lawyers in the room: how many times have you seen the word liberty appear in the Federal Register? . . .

Liberty is part of what makes America different and exceptional. If liberty is sufficient to form the foundation of our nation than liberty should be sufficient to form the basis for changing or rescinding a regulation period. [applause]. If we go back to our founding documents, back to first principles, we see that our Founders strongly believed in this.  The Declaration of Independence could be read this way: It asserted America's intent to eliminate regulations that impinged on mankind's inalienable rights of life liberty and the pursuit of happiness. What follows those words, if you read it, is a long list of grievances that justified our Revolution. And certainly these grievances complain of Britain’s economic regulations, if you think back to our history. What are they doing to regulate our economic prosperity? How are they maltreating our economies through regulation. But they also indict British regulation of and interference with the liberty of Americans. The ability of both individuals and the colonies as a whole to govern themselves. And it is that is at the heart of our American experiment. Citizens sit on juries. Voters elect their representatives to Washington. So by the same token, Americans should be trusted to exercise individual choice. At a practical level, this means that Washington should regulate only, only when necessary and that limiting the scope of government protects space for people to make these judgments for themselves.

Mr. Acosta goes on to give a concrete example of how liberty and the rule of law is applied now and how it was abused in the last Administration.  He focuses on a topic of interest to all lawyers, attorney-client privilege.

So I'd like to offer a few examples of how some of this works in practice. One of the clearest examples I think is a regulation that was enacted by my predecessor called the "persuader rule". . . . Issued last year required individuals to disclose when they provided legal advice to employers in a union organizing election. The effect of the rule was to discourage employers from consulting with counsel.  As everyone in this room knows the freedom to consult counsel of choice has been sacrosanct in the American tradition.   And for good reason, even the American Bar Association came out in opposition to the rule. They did so based on the concerns that it improperly infringed on attorney-client privilege. Yet the rule was published.  Now we at the Department have now published a new rule to rescind that rule. And here's the thing, the issue there is not the cost of compliance. The cost of the paperwork to report. The issue there is one of principle. Do we believe that that attorney-client privilege should be sacrosanct?  

While Department of Labor uses such quantitative tools as cost-benefit analysis, it is important to note as Secretary Acosta states, sometimes it comes down to the basic principles of the rule of law and liberty.  

Secretary Acosta’s speech can be viewed here. It is important to note that Secretary Acosta addressed the RNLA in his personal capacity, not in his official role.  We apologize for any transcription errors.