Senate Confirms Lee Francis Cissna to lead USCIS

On Oct. 5, the U.S. Senate approved the nomination of Lee Francis Cissna to lead the U.S. Citizenship and Immigration Services agency (USCIS) on a bipartisan vote of 54-43. All Republican senators supported the nomination and were joined by Democrat Senators Donnelly (IN), Heitkamp (ND), Manchin (WV) and McCaskill (MO). Senators Cochran (R-MS), Cortez Masto (D-NV) and Heller (R-NV) did not vote.


This post was written by Robert Y. Maples of Greenberg Traurig, LLP. All rights reserved, ©2017

For more legal analysis go to The National Law Review

Watchdog: ‘Reason To Believe’ Trump And Super PAC Violated Election Law

Donald Trump Campaign finance election lawA campaign finance watchdog said Wednesday that chief White House strategist Steve Bannon may have illegally benefited from spending by a pro-Trump super PAC while he led Trump’s presidential campaign.

The Campaign Legal Center believes Make America Number 1, a super PAC that backed Trump, may have improperly subsidized Bannon’s salary. In a letter to regulators on Wednesday, the Campaign Legal Center argued that details in Bannon’s recent financial disclosure give “reason to believe” the Trump campaign and the super PAC may have violated federal election rules.

While Trump initially criticized his Republican opponents for their close ties to super PACs and disavowed outside groups that sought to support his bid, his team embraced outside help during his general election race against Hillary Clinton and pushed the boundaries of federal election rules as much as any other 2016 candidate, testing regulations meant to ensure super PACs operate independently from campaigns.

Bannon’s disclosure, filed March 31, confirmed his financial connection to Glittering Steel, a film production company that was involved with Bannon’s “Clinton Cash” documentary about the Clinton family and “Torchbearer,” which starred Duck Dynasty’s Phil Robertson.

Make America Number 1 paid the film production company nearly $1 million during the 2016 election cycle, with payments starting in July 2015 and continuing after Bannon became the Trump campaign’s CEO. The Trump campaign never paid Bannon, who previously was the executive chairman of Breitbart News, a right-wing news site.

The filing says Bannon resigned from Glittering Steel and stopped receiving monthly consulting payments from the company in August 2016, when he joined the Trump campaign. But the form indicates Bannon kept an ownership interest in Glittering Steel, worth at least $100,000. Bannon’s report says he’s trying to sell his stake in the company.

“As a result, as Bannon worked for the Trump campaign without pay, he continued to benefit, directly or indirectly, from the estimated $267,500 in payments that Make America Number 1 made to Glittering Steel LLC after or around his officially joining the campaign,” wrote the Campaign Legal Center’s general counsel, Larry Noble.

The Campaign Legal Center first filed its complaint with the Federal Election Commission in October. It’s unclear if the agency has decided to investigate, as the FEC doesn’t disclose investigations until they’re completed. Its commissioners have frequently deadlocked on whether to pursue apparent election law violations.

Overall, the FEC has done little to ensure that super PACs remain independent from candidates in the wake of the Supreme Court’s 2010 Citizens United decision, which allowed companies and unions to spend unlimited amounts of money on elections.

Super PACs and politically active nonprofits spent almost $1.5 billion during the last election cycle, with much of the money coming from ultra-wealthy individuals like billionaire Robert Mercer, the conservative hedge fund executive who financed Make America Number 1. His daughter, Rebekah, led the super PAC, which originally backed Texas Sen. Ted Cruz in the Republican primary race.

The Mercers pressed Trump to hire Bannon to lead his campaign, according to the Washington Post. Over the years, the Mercer family has funded Breitbart News, as well as the Government Accountability Institute, a conservative investigative nonprofit led by Bannon. Bannon and the Mercers founded Glittering Steel together, the Post reported.

The Mercers are also major investors in Cambridge Analytica, a data firm that worked for both Make America Number 1 and the Trump campaign. Bannon received monthly consulting payments from Cambridge Analytica and served on its board. Though Bannon’s financial disclosure says he resigned from the firm when he started working for Trump, he still has a stake in the company, worth over $1 million, that he’s planning to sell.

The Campaign Legal Center said that there’s reason to question whether Bannon did in fact resign from Glittering Steel and Cambridge Analytica in August.

Bannon’s financial disclosure says he resigned from Breitbart News then, but Breitbart’s CEO Larry Solov recently told the Senate Press Gallery that Bannon resigned from Breitbart in November, days after Trump’s victory.

The relationship between Bannon and Breitbart News, which gave Trump favorable coverage throughout the campaign, has generated controversy in recent weeks. Bannon has reportedly maintained contact with Breitbart editors about the site’s coverage. That news prompted a liberal watchdog group, Citizens for Responsibility and Ethics in Washington, to request an investigation into whether Bannon has violated his White House ethics pledge.

News reports suggested last week that there’s a growing rivalry between Bannon and Trump’s son-in-law and advisor Jared Kushner, and that Bannon could be on his way out the door, after Trump removed Bannon from a position on his National Security Council.

Trump did little to quiet talk of a shake-up on Tuesday when the New York Post asked him if he still has confidence in Bannon. “I like Steve, but you have to remember he was not involved in my campaign until very late,” he said. “I had already beaten all the senators and all the governors, and I didn’t know Steve. I’m my own strategist and it wasn’t like I was going to change strategies because I was facing crooked Hillary.”

*This article was produced by MapLight in partnership with Fast Company.


© Copyright MapLight

Inauguration Day 2017: President Donald Trump

President Trump Inauguration DayOne year ago, few people outside of candidate Donald Trump and his closest and most loyal supporters imagined that January 20, 2017, would mark his inauguration as the 45th president of the United States. Regardless, today an estimated 800,000–900,000 people were on hand to witness his inauguration on the west front steps of the U.S. Capitol. As is the tradition, the new president was sworn in by the chief justice of the Supreme Court of the United States, with Donald Trump repeating the 37-word, constitutionally mandated oath of office administered by Chief Justice John G. Robert Jr. There then followed the traditional rendition of “Ruffles and Flourishes” and the first “Hail to the Chief” for President Trump, as well as the howitzers of the 3rd U.S. Infantry’s 21-round gun salute while the First Lady and other members of the Trump family looked on.

Meanwhile, many continue to refuse to accept the election results—in which Trump won a wide majority of votes cast in the Electoral College (301–237) but lost the popular vote by over three million votes. Their protests were reflected by hundreds of thousands of demonstrators in inauguration marches in Washington, D.C., and elsewhere around the country, including the Women’s March on Washington, which an estimated 200,000 individuals—brought to the nation’s capital by 1,400 buses—attended. In contrast to the calls for unity and peaceful transfer of power, a few of the protests turned violent resulting in property damage and police action, including the use of tear gas, pepper spray, and flash grenades, and numerous arrests.

Despite the protests, on January 20, Donald John Trump became the new president of the United States, along with Vice President Mike Pence, and the Trump era was launched.

His relatively brief inaugural address—20 minutes—written by his own hand, lacked the rhetorical flourishes of the most memorable lines from several of his predecessors.

For a president whose national popularity rating of 40 percent, according to a recent poll—the lowest rating of any new president on Inauguration Day over the past six most recent presidents—President Trump’s desire for national unity is an important message to deliver, especially in the face of impending change.

In this regard, President Trump used expressions in his inaugural speech such as “always pursue solidarity” and “We share one heart, one home, and one glorious destiny.” Yet essentially, it was a speech that mirrored his campaign speeches calling to “Make America great again.” Perhaps the most memorable line was,

From this day forward, a new vision will govern our land. From this day forward, it’s going to be only America first, America first.

The Trump White House

President Donald Trump and Vice President Mike Pence plan to advance a conservative domestic social and fiscal policy agenda from the White House, and to redefine global relationships with our trading partners, foreign governments, and international organizations. President Trump has promised to quickly overturn President Obama’s executive orders and regulations, as well as repeal and replace the Affordable Care Act, which was passed by a strictly partisan congressional vote with no Republicans voting in favor. President Trump also enjoys a Senate Republican majority to confirm his Cabinet nominees, although confirmation of some may face difficulty. However, Senate confirmation of his choice for the Supreme Court of the United States will be more difficult since, unlike lower federal circuit court judges and administration appointments that cannot be filibustered and only require a simple 51-vote majority to confirm, Supreme Court nominees require 60 votes to overcome a threatened Senate filibuster.

The Republican Congress—Critical to Trump’s Agenda

The Trump era will rely on a Republican-controlled Congress to advance its agenda. Republicans enjoy majorities in both Houses of Congress, albeit by slimmer margins than the 114th Congress. In the new 115th Congress (2017-2018), Senate Republicans hold 52 seats versus 46 Democrats and 2 Independents who caucus with the Democrats, which is 2 fewer Republicans than in the 114th Congress. The slim 52-vote majority makes Senate Republicans susceptible to a 60-vote super-majority vote necessary to invoke cloture to end a legislative filibuster blocking the Trump agenda. In the House the margin is 241 Republicans versus 194 Democrats, which includes 6 fewer Republicans than there were in the 114th Congress but more than sufficient to move the Trump agenda.

What is the Trump Agenda?

President Trump’s Inaugural Address echoed themes he had sounded over the course of his candidacy. Key excerpts from his speech reflect his priorities:

  • “We assembled here today are issuing a new decree to be heard in every city, in every foreign capital, and in every hall of power. From this day forward, a new vision will govern our land. From this day forward, it’s going to be only America first. America first.”

  • “What truly matters is not which party controls our government but whether our government is controlled by the people.”

  • “January 20th, 2017 will be remembered as the day the people became rulers of this nation again.”

  • “When you open your heart to patriotism, there is no room for prejudice.”

  • “A new national pride will stir our souls, lift our sights and heal our divisions.”

First 100 Days

On the first day, the Senate will confirm two of President Trump’s Cabinet nominees: retired United States Marine Corp general, James “Mad Dog” Mattis as Secretary of Defense and retired Marine General John Kelly as Secretary of Homeland Security.

Although President Trump will take executive actions on Inauguration Day following his swearing in, he has stated that he considers his “first day” to be Monday, January 23.

President Trump’s first 100 days in office are likely to include a laser-beam focus on:

  • confirming his Cabinet and sub-Cabinet nominees;

  • repealing the Affordable Care Act (or “Obamacare”) and replacing it with a slimmed-down version;

  • overturning most, if not all, of President Obama’s executive orders and instructing the Trump Executive Branch agency heads to undo Obama regulations by reverse rulemaking or by withdrawing their agencies’ legal defenses of such regulations before the federal appellate courts where they have been enjoined permanently (e.g., the persuader rule) or preliminarily (e.g., the government contractor “blacklisting” rule);

  • redesignating the chairs of the National Labor Relations Board (NLRB) and the U.S. Equal Employment Opportunity Commission (EEOC), and filling vacancies in those two agencies;

  • nominating a new Supreme Court justice and candidates for the lower federal circuit courts of appeals;

  • beginning work on immigration policy, infrastructure, tax reform, and trade policy; and

  • negotiating a spending bill to fund the federal government before the continuing resolution expires in April 2017.

How Might Labor and Employment Policy Change Under President Trump?

Under President Trump, expect a significant reversal of Obama labor and employment policies at the U.S. Department of Labor (DOL), NLRB, and the EEOC.

Traditional Labor. In terms of labor policy, for example, a recent study concluded that over 4,559 years of judicial precedent was overturned in eight years by the Obama Board in favor of pro-union policies. Expect gradual reversal of many of those decisions by a new Trump Board. Reversals will be slowed, however, by the need for a “live” case (the NLRB is not permitted to issue advisory opinions) and by incumbent pro-union Democratic General Counsel Richard Griffin, whose term expires in November of 2017.

Joint-Employer. Also, expect reversal of the Obama policy on “joint-employer” status, which saddles franchisors with the collective bargaining obligations and labor law violations of their franchisees. The ubiquitous Obama joint-employer standard has been developing government-wide by the NLRB (in its Browning-Ferris Industries decision) as well as by the DOL’s Wage and Hour Division and Occupational Safety and Health Administration, and by the EEOC. Business groups argue that the joint-employer standard would destroy the franchise model. We can likely expect the Trump administration to move quickly to reverse these joint-employer policies, especially if the chief executive officer of CKE Restaurants, Andy Puzder is confirmed as Secretary of Labor.

Wage and Hour Issues. On issues such as the “salary basis” for the Fair Labor Standards Act’s overtime exemption for white collar employees (executive, administrative, or professional employees), and the minimum wage, expect the Trump administration to propose significantly lower increases than those proposed by President Obama. Similarly, expect Trump to advance some version of a federal paid family leave law, although without some of the onerous provisions previously advocated.

Executive Orders. On issues like “government contractor blacklisting” (Executive Order 13673, “Fair Pay and Safe Workplaces” and its implementing regulations and DOL guidance), President Trump has promised to quickly rescind the executive order, perhaps on his first day in office. The same is true with Obama’s other labor and employment executive orders starting with those from the first days of the Obama presidency.

Persuader Rule. As for the “persuader” regulations, expect Trump to instruct his Justice Department and Department of Labor to withdraw their appeals in the Fifth Circuit of the permanent injunction granted by a federal district court in Texas. The same is true of the appeal of a preliminary injunction of the Labor Department’s overtime regulation entered by another federal district court in Texas. By withdrawing from the litigation, the Trump administration would effectively end those regulations without going through a burdensome and time-consuming reverse rule making.

Immigration. In addition to reversing and replacing Obamacare and rescinding other Obama labor and employment executive orders and regulations, immigration reform is a high priority for the Trump administration. Under President Trump, immigration policy will focus on boarder security, restrictions on entry, and deportation of undocumented aliens.

Court Vacancies. Finally, the composition of federal courts, including the Supreme Court of the United States, is important to labor and employment policy. Filling the vacancy on the Supreme Court, and the 100 vacancies in the lower federal courts, will be a priority. Currently, for example, only the Fifth, Sixth, Seventh, and Eighth Circuits retain majorities appointed by Republican presidents. Now, after the “nuclear option” was rammed through the Senate by then-Majority Leader Harry Ried (D-NV), it is possible that the Senate confirmation of judicial appointments will not be filibustered and will only require a simple 51-vote majority. We can likely expect President Trump to move quickly to fill those vacancies.

Post- Inauguration Day 2017: The Trump Era Begins

The next four years potentially will bring dramatic changes in domestic and foreign policy. One of the most significant changes likely will be in labor and employment policy. As with all of his predecessors throughout U.S. history, President Trump enters the White House hoping to bring about change. Time will tell.

© 2017, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.

The Unknown Future Of The Affordable Care Act

Donald Trump Affordable Care Act

Donald Trump’s victory to become the next president of the United States, and the Republican Party’s continued control of the United States Senate and House, will likely have a significant impact on the future of the Affordable Care Act (ACA). President-elect Trump (Trump) has vowed to immediately dismantle the ACA. To date, Trump has provided only a broad outline of what exactly he plans to replace the law with, such as the following:

  • Eliminating ACA requirements which generally require (1) individuals to maintain health insurance, and (2) employers with more than 50 full time employees to offer affordable major medical plan coverage or run the risk of paying penalties;

  • Eliminating tax subsidies that eligible individuals can use to purchase coverage and/or offset costs under health insurance exchanges;

  • Expanding the use of health savings accounts to pay deductibles, copayments, etc.;

  • Establishing tax breaks to allow taxpayers to deduct premiums they pay for individual health insurance policies;

  • Allowing health insurance across state lines;

  • Allowing states to manage Medicaid funds;

  • Modifying or eliminating the ACA’s “essential health benefits” requirements;

  • Expanding age rating bands (increasing the range of premiums that will be allowed); and

  • “Modernizing” Medicare.

Despite his general opposition to the ACA, Trump has expressed support for ACA rules which prohibit insurers and employer plans from excluding coverage for expenses related to preexisting conditions. However, those prohibitions force insurance companies and employer plans to bear significant costs. The ACA’s employer and individual coverage mandates were intended to make the pre-existing condition exclusions more palatable to payers by forcing healthy individuals into the applicable insurance pools. Consequently, it is unclear how Trump would preserve the pre-existing condition exclusions yet eliminate the employer and individual mandates.

In addition, the ACA contains hundreds of provisions affecting hospitals, corporations, Medicare, health care quality and integrity, the health care workforce, biosimilars, health care prevention and other issues unrelated to what most people think of as “Obamacare.” To date, Trump appears not to have taken any public position on these provisions.

Copyright © 2016 Godfrey & Kahn S.C.

Post-Election Outlook for Higher Education

  • Dramatic changes in Department of Education enforcement actions based on departmental guidance;

  • Less government support for public institutions as Republicans seek to constrain both state and federal spending;

  • Less support for the concept of free community college;

  • Substantial changes in the manner in which federal student aid is administered;

  • Added scrutiny of institutions with large endowments;

  • Greater pressure for lower tuition.

In the long term, the federal regulatory environment will stabilize, and institutions can adapt to the new environment in which they will operate.  For now, institutions facing enforcement actions based on departmental guidance should consider the likely impact of the election on enforcement actions based on departmental guidance.  A new set of policy makers will soon be ensconced at the Department of Education, and their priorities can be expected to be quite different.  Those changes in priorities will be quickly reflected in changes in guidance documents, and the revised guidance documents could either be helpful or harmful to institutions currently subject to enforcement actions.

ARTICLE BY James H. Newberry Jr.
© Steptoe & Johnson PLLC. All Rights Reserved.

President-Elect Trump’s Impact on Affordable Care Act

Health, Stethoscope, Affordable Care ActFor years, the Republican-controlled Congress has vowed to repeal or significantly scale back President Obama’s landmark legislation – the Patient Protection and Affordable Care Act (the “ACA”). During his campaign, President-elect Donald Trump repeatedly promised that he would “immediately repeal and replace” the ACA upon taking office.  Assuming Trump follows through on his promise, the ACA’s days are likely to be numbered, at least in its current form.  The scope of such repeal remains uncertain, however.  Trump has indicated that the ACA cannot simply be repealed – it must be replaced.  To date, he has not provided the details of any alternative to the ACA.

Under the current House proposal, the ACA’s individual and employer mandates would be repealed outright.  Although the controversial excise tax on high-cost health care (i.e., the so-called “Cadillac Tax”) would also be repealed, the proposal would put a cap on the deduction that employers can take for the cost of healthcare provided to employees.  It is also expected that the proposed alternative would give tax credits to individuals without employer-provided health coverage and expand the tax benefits associated with health savings accounts.  Certain popular aspects of the ACA, such as the prohibition of preexisting condition exclusions, dependent coverage through age 26 and Medicaid expansion, would remain in place. Democrats are likely to strongly oppose the House proposal. There probably will be little that Democrats will be able to do, however, to stop the repeal/replacement of the ACA facing Trump and a Republican-controlled Congress.

© 2016 Proskauer Rose LLP.

Impact of Presidential Election on Key United States Supreme Court Cases

Supreme CourtAmerica’s next President will potentially have the authority to nominate more than one United States Supreme Court Justice before the end of his or her presidency. Notably, during the final debate, this subject of Supreme Court appointments by the President Elect was one of the six topics for discussion and was identified as one of the top issues among voters. Employers should take note because the Supreme Court may hear several cases in the upcoming term that could have significant implications for employers across the country with respect to (1) the enforceability of class action waivers, (2) pre-suit obligations of the Equal Employment Opportunity Commission (“EEOC”) in discrimination complaints, and (3) the issue of transgender rights.

(1) The Enforceability of Class Action Waivers in Arbitration Agreements

Following the Court’s ruling in 2011 in ATT Mobility LLC v. Concepcion1, where the Court in a 5-4 decision held that the Federal Arbitration Act preempted California from refusing to enforce class action waivers in consumer contracts, many employers have utilized waivers in arbitration agreements as a method of avoiding, or reducing, the risks of class or collective actions by employees alleging employment-related claims such as wage-and-hour violations and unlawful discrimination.

However, the safe haven apparently created under Concepcion has been under attack and led to inconsistent federal circuit court rulings applying its holding. Now, the Supreme Court has the opportunity to reconcile a split in the federal circuits regarding the enforceability of class action waivers in arbitration agreements. Because former Justice Scalia authored the Concepcion opinion, his replacement could impact its holding.

(2) EEOC Obligations with Respect to Discrimination Complaints

Recent discrimination cases have challenged aspects of the EEOC’s pre-suit obligations to investigate and attempt to conciliate discrimination charges before filing a lawsuit. Many judicial opinions have cited MachMining LLC v. EEOC2, a case in which the Supreme Court held that the EEOC’s statutory obligation to attempt conciliation with an employer as a prerequisite to a Title VII suit is subject to judicial review—although the scope of that review is narrow—and also established that form letters announcing the initiation and conclusion of the conciliation process alone do not satisfy the statutory obligation to attempt to facilitate conciliation with the employer.

In October 2016, the Supreme Court denied certification in EEOC v. Sterling Jewelers Inc.3, a matter of first impression in which the Second Circuit cited MachMining LLC v. EEOC in a decision permitting the EEOC to pursue a nationwide sex discrimination lawsuit on behalf of female retail store employees. Sterling Jewelers Inc.4 established that while a court may review whether the EEOC conducted an investigation into a formal charge of discrimination as a prerequisite for bringing an enforcement action under Title VII, it may not review the sufficiency of the agency’s investigation.

The case to watch is The Geo Grp. v. EEOC5, which is being docketed for review by the Supreme Court. The Ninth Circuit cited MachMining6 in a decision that allows the EEOC to litigate 19 sex discrimination claims despite the fact that the agency did not identify the alleged victims until after filing the lawsuit on the basis that MachMining7 permits the identification of a class of people as an alternative to identifying the individual alleged victims.

While many believe that the 2015 MachMining opinion could have potentially reversed the Ninth Circuit’s holding in Geo Grp., the Court (with a newly appointed Justice) could possibly walk back the limited judicial review permitted by the previous Court or establish a broader scope of judicial discretion in determining whether or not an attempt of conciliation with an employer took place in order to satisfy the EEOC’s statutory requirement under Title VII.

(3) Transgender Rights

In August, the Supreme Court stayed the Fourth Circuit Court of Appeals ruling in Gloucester Cnty. Sch. Bd. v G.G.8, keeping Grimm, an individual who was born a female, but identifies as a male, from using the boys’ restroom at school, while it decided whether it would take the case. On Friday, October 28, the Supreme Court announced it would in fact take up the issue. The Court’s holding on whether the U.S. Department of Education’s interpretation of the word “sex” is appropriate, as it relates to Title IX discrimination cases, could have wide ranging impact on litigation involving H.B. 2 from North Carolina and employers as they address transgender issues in the workplace.

1. ATT Mobility LLC v. Concepcion, 563 U.S. 333 (2011).

2. MachMining LLC v. EEOC, 135 S. Ct. 1645, 126 FEP Cases 1521 (2015).

3. Sterling Jewelers Inc. v. E.E.O.C., No. 15-1329; EEOC v. Sterling Jewelers Inc., 801 F.3d 96 (2nd Cir. 2016).

4. Id.

5. The Geo Grp. v. EEOC, No. 16-302; Arizona ex rel. Horne v. Geo Group, Inc., 816 F.3d 1189 (9th Cir. 2016).

6. MachMining LLC v. EEOC, supra.

7. Id. at 1648.

8. 136 S. Ct. 2442 (2016) (per curiam).