Tag: President-elect Donald Trump

“Change” Comes to Washington—What to Expect

President-elect Donald TrumpOn January 3, 2017, the 115th U.S. Congress opened with Republican majorities in both houses:

  • U.S. Senate: 52 Republicans and 46 Democrats and 2 Independents who Caucus with the Democrats

  • U.S. House of Representatives: 241 Republicans and 194 Democrats

On January 20, 2017, President-elect Donald Trump will be inaugurated as the 45th President of the United States, with an ambitious agenda set for the first 100 days, including the confirmation of his cabinet appointees and a yet-to-be-named Supreme Court nominee. Among his first acts, President-elect Trump is expected to undo many of the executive orders and “midnight regulations” of the Obama administration.

In the closing days of 2016, President Barack Obama adopted numerous federal regulations that may have served to advance and preserve his legacy. During his election campaign, Trump announced that, on his first day in office, his intention would be to roll back the executive orders adopted during the Obama administration and to seek repeal and replacement of other enactments such as the Affordable Care Act (or Obamacare). Most final regulations, however, may not simply be overturned with the stroke of the president’s pen, but must be undone by Congress, the courts, or reverse notice and comment rulemaking.

Thus, in addition to confirming President Trump’s cabinet nominations as quickly as possible, among the other early challenges for Congress will be to repeal and replace Obamacare and to invalidate en bloc the so-called “midnight regulations” and others adopted by the Obama administration or initiate a Congressional Review Act resolution of disapproval.

The first 100 days of the new Trump administration and the new 115th Congress will be busy and consumed by the following:

Senate Confirmations: Secretary of Labor-Designate Andy Puzder

Since his election, President-elect Trump has named his selections for cabinet seats, including on December 8, 2016, his choice of Andy Puzder to be the next Secretary of Labor. Puzder is the president and chief executive officer of CKE Restaurants, which has over 3,700 franchise restaurants, employing over 75,000 employees in the United States and 40 other countries. He has long been an advocate of job creation and an outspoken critic of government regulation of business, including the dramatic increase in the salary basis for exemption from overtime for “white collar” employees under the proposed overtime regulations. Puzder represents a dramatic shift from outgoing Secretary of Labor Thomas Perez.

Senate Democrats and labor unions have threatened opposition to Puzder’s confirmation. Under current Senate rules, however, confirmation requires only a simple majority since then Senate Majority Leader Harry Reid (D-NV) pushed through a rules change to eliminate 60-vote filibusters of administration and judicial nominations, except for nominations to the Supreme Court of the United States. With a majority of 52 votes, Senate Republicans should be able to confirm Mr. Puzder even if all 48 Democrats vote against his confirmation. The Senate Committee on Health, Education, Labor and Pensions has scheduled Mr. Puzder’s confirmation hearing for January 27, 2017.

Since Election Day, President-elect Trump and his transition teams (landing teams) have been hard at work vetting candidates for not only the cabinet, but subcabinet positions as well. Following Mr. Puzder’s confirmation, we expect the announcement of critical subcabinet positions at the U.S. Department of Labor, including those of deputy secretary of labor; solicitor; assistant secretaries for policy, occupational safety and health, and labor-management standards; and administrator of the Wage and Hour Division, among others.

Turning Around the NLRB and EEOC

At the National Labor Relations Board (NLRB), President-elect Trump will be able to designate lone Republican Board Member Philip Miscimarra as the new chairman to replace current Democratic Chairman Mark Pearce. He will also likely nominate two Republican members to join Miscimarra and current Democratic Members Pearce and Nancy Schiffer, thus giving Republicans a 3–2 majority. However, the task of reconsidering the staggering number of blatantly pro-union decisions by the Obama Board, which by some estimates overturned 4,559 years of well-settled Board law precedent, will be slowed by current Democratic General Counsel Richard Griffin, whose term will not expire until November of 2017. A former union lawyer, Griffin for the remainder of his term will likely insist that the NLRB’s regional offices adhere to and enforce the law established by the Obama Board, and will probably limit the opportunity to present cases to the new Trump Board for reconsideration. Since the NLRB is prohibited from issuing “advisory” opinions, the new Board will need to wait for “live cases” to rise up the pipeline. Thus, reversals of Obama Board decisions are not likely to come quickly.

At the U.S. Equal Employment Opportunity Commission (EEOC), current Democratic Chair Jenny Yang is now expected to serve out her term. President-elect Trump, however, will be able to designate Republican Commissioner Victoria Lipnic as chair and to nominate a Republican to fill the seat vacated by Republican Commissioner Constance Barker upon the expiration of Yang’s term in July of 2017. Barker’s nomination for a new term was pending in the Senate when Congress adjourned, and it must be resubmitted in the current Congress.

Overturning Federal Regulations

On his first day in office, President-elect Trump is expected to overturn numerous executive orders dating back to President Obama’s earliest days in 2009. Included may be executive orders mandating project labor agreements on federal construction projects, prohibiting reimbursement of labor relations costs for federal contractors, and setting mandatory minimum wages and paid family leave for federal contractors. Most importantly, he is likely to overturn Executive Order 13673 “Fair Pay and Safe Workplaces” requiring federal contractors and subcontractors to report “administrative merits determinations” (including alleged violations of 14 federal labor laws and equivalent state laws based on agency complaints prior to litigation and final judgment). These reports would need to be considered by federal contracting officials in the awarding of future federal contracts. Expect the so-called government contractor “blacklisting” rules and its implementing regulations and DOL guidance, already enjoined preliminarily by a court decision, to be among the first executive orders to be undone.

For its part, Congress is considering legislation to block “midnight regulations” issued by the outgoing Obama administration. During its first week in session, the new 115th Congress passed the Midnight Rules Relief Act (H.R. 21) sponsored by Representative Darrell Issa (R-CA) and the Regulations from the Executive in Need of Scrutiny (REINS) Act of 2017 sponsored by Representative Doug Collins (R-GA).

The Midnight Rules Relief Act amends the Congressional Review Act (CRA) to allow joint resolutions disapproving en bloc regulations submitted to Congress for review within 60 days of the end of a president’s term. The CRA may only be invoked on individual regulations, not a series of regulations en bloc.

The REINS Act requires that all new “major regulations” (those with an economic impact of $100 million or more) be subject to an up-or-down vote by a simple majority in both houses of Congress and be signed by the president before taking effect.

Of course, Congress already can institute a resolution of disapproval under the CRA for individual federal regulations within 60 legislative days of taking effect (or for a “reset” period upon the opening of a new Congress for regulations that were submitted to Congress for review on or after June 13, 2016, prior to its adjournment sine die). The resolution of disapproval is not subject to filibuster and, if passed and signed by the president, the same or “substantially similar” regulation may not be reintroduced and repromulgated in the future. The only federal rule ever to be disapproved under the CRA was the OSHA ergonomics standard issued in November of 2000, which was disapproved by the Republican Congress and signed by President George W. Bush in 2001.

Finally, of course, Congress may attach a “rider” to an appropriations or reconciliation bill (the latter of which is not subject to a Senate filibuster) that denies funding for the agency to enforce the regulation.

What Else?

In addition to the foregoing, Congress is expected to roll back agency regulatory powers by passing the Regulatory Accountability Act of 2017, H.R. 5 (Goodlatte, R-VA), which would repeal the longstanding so-called “Chevron deference” given to agencies’ legal interpretations. The legal standard originates from the Supreme Court’s 1984 decision in Chevron USA, Inc. v. Natural Resources Defense Council, Inc. The legislation would eliminate Chevron standards frequently used by courts to uphold agency interpretations of federal regulations, as well as change agency rulemaking and strip agency “guidance” from having legal effect. In addition, the bill would require six-month delays of enforcement for new rules and mandatory litigation stays for “major rules” that would have an impact of $1 billion or more on commerce. The bill also would require agencies to calculate the direct, indirect, and cumulative effects of new rules on small business. A vote on the bill is expected in the House in January, over the strong opposition of organized labor and environmental groups that fear that the bill will curtail labor and environmental rule making.

Other Priorities—Will the Government Be Less Dysfunctional?

Newly-elected presidents often pursue aggressive first year agendas that embody their most important policy goals enunciated during their election campaigns. President Trump will be no different, and he is likely to advance policy objectives fulfilling campaign promises on reversing government regulations as well as on immigration, trade, taxes, military spending, national security, infrastructure, and job growth. Taking on that laundry list of policy initiatives will be easier said than done. From the start of his administration, President Obama had difficulty overcoming united Republican opposition to his policy goals. For their part, Democratic leaders in the 115th Congress—led by Senate Democratic Leader Chuck Schumer (D-NY) and House Democratic Leader Nancy Pelosi (D-CA)—already promise to stand firmly against the confirmation of certain cabinet nominees and any Supreme Court nominee who in their opinion may be outside the mainstream of judicial philosophy and legislative policies they oppose. On a few issues, such as infrastructure, the Democratic leaders say they may seek bipartisan compromise. With a narrow 52-vote Senate majority, Senate Republicans will find it difficult to muster the 60 votes necessary to invoke cloture to end a Democratic legislative filibuster. Thus, expect congressional gridlock to continue, although possibly not to the same degree as over the past 12 years. Voters who are now seeking less gridlock and a less dysfunctional government may be disappointed at the pace of change.

Filibusters are meant to be dysfunctional, to be the Senate “saucer” that cools the “overheated cup” of House action by promoting extended Senate debate and deliberation. It is the main distinction between the House and Senate. Ironically, there were a number of Senate Democrats in the last Congress who supported a rules change to eliminate legislative filibusters along with the “nuclear option” advanced by then Senate Majority Leader Harry Reid (D-NV), which would have eliminated filibusters of administrative appointments and judicial nominations. Today, the legislative filibuster may be the Democrats’ salvation. Indeed, there may be some Senate Republicans who would consider eliminating the legislative filibuster. Where one stands depends on where one sits. However, Senate Majority Leader Mitch McConnell (R-KY) is unlikely to permit elimination of the legislative filibuster.

Still, the nuclear option against administrative and judicial nominations continues to stand. This means that President Trump’s cabinet nominations should be confirmed unless Senate Democrats are able to convince three Republicans to join them in voting against the nominations. It also means that judicial nominations should be quickly confirmed on simple majority votes. Currently, there are over 100 unfilled judicial vacancies—including a number of critical federal circuit court seats. The federal appellate courts are important for labor and employment policy since, in our constitutional system of checks and balances, the federal circuit courts are the appellate courts that review government regulations promulgated by the executive branch and legislation passed by Congress. Apparently, the “nuclear option” was so effective in the 114th Congress that President Obama was able to quickly push through Democratic judicial nominations, and today there are only 4 of the 12 judicial circuits with majorities appointed by Republican presidents. Expect that to change and for the circuit courts to become more balanced.

Legislation, however, is still subject to the 60-vote Senate filibuster of bills passed quickly by the larger Republican majority in the House. Thus, “change” may come to Washington, but perhaps not as easily or as quickly as some voters may anticipate.

ARTICLE BY Harold P. Coxson of Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

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

Immigration Policy Choices Under the New Administration

immigration policyNow that the election is over, focus turns to the U.S. immigration policy of President-elect Donald J. Trump’s administration over the next four years. Forecasts of this type are never easy with any new President; the task is even more difficult this year because immigration policy dialogue during the campaign focused so heavily on illegal immigration and the Mexican wall. The critical questions to which our clients seek answers concern the policies that will define “business” immigration.

In this Special Immigration Alert, we will discuss 10 areas that impact business immigration and explore potential paths that the Trump administration might follow in addressing them.

  1. Executive Orders: During the campaign, President-elect Trump indicated that he would vacate all executive orders issued by the Obama administration In the immigration area, the relevant executive orders would, in large part, consist of the Deferred Action for Childhood Arrivals (“DACA”) and the Deferred Action for Parents of Americans (“DAPA”). As our readers know, DACA and DAPA have been subject to numerous legal challenges since these executive orders were issued. Nevertheless, thousands of foreign nationals (“FNs”) received work authorization under these programs and are now employed within the United States. If  DACA and DAPA are vacated, these FNs would lose their temporary protection against removal and their right to work in the United States. Employers need to start planning now for this possibility.

  2. Temporary Protected Status (“TPS”): Under the immigration laws, the U.S. President has authority to grant TPS to citizens of any country who are temporarily unable to return to their home country due to ongoing armed conflicts or natural disasters. Those in TPS status are granted temporary refuge here and permitted to work. If it follows several recommendations of the Center of Immigration Studies, as some Trump supporters have suggested, the Trump administration could restrict the circumstances under which TPS grants are issued and terminate current grants earlier, requiring affected FNs to return home sooner.

  3. Free Trade Agreements (“FTAs”): A major focus of the Trump campaign was the renegotiation/repeal of the North American Free Trade Agreement (“NAFTA”). The United States is a party to other FTAs with Chile, Singapore, and Australia that were not a primary focus of the campaign. Each of these FTAs contains immigration provisions. The questions are what, if anything, the Trump administration will do regarding these FTAs and what impact, if any, the administration’s actions may have on continued immigration under these FTAs or on the status of those FNs already here.

    The concern about the continuing viability of these FTAs as a source for immigration is real, but the likelihood of an immediate abrogation of these FTAs and their immigration provisions is not great. At the outset, it seems that the Trump administration will focus more on immigration enforcement than on the FTAs, given the emphasis in candidate Trump’s campaign regarding the need to address southern border security issues and the problems posed by aliens in this country who have committed crimes. Moreover, even if cancelling these FTAs was formally pursued by the administration, most contain provisions that require six or more months of prior notice, and Congress may want to weigh in on this process as well.

  4. Nonimmigrant Classifications (H-1B/L-1B): During the campaign, candidate Trump indicated that he wanted to revamp the H-1B program because it took jobs away from Americans. Since the H-1B program is largely statutory, it would be hard for any change to be effected immediately. With a Republican Congress, and historical Democratic opposition to the H-1B program, however, this could be an issue on the legislative agenda for 2017 if there is public pressure for immigration reforms. While the ultimate package is uncertain, there is a possibility of aligning the entire H-1B program with the current requirements for H-1B dependent employers. H-1B dependent employers are those that employ 15 percent or more H-1Bs as part of their overall workforce, and they are required to demonstrate the absence of qualified U.S. workers before an H-1B petition can be approved for a new employee.

    Although the President-elect and his transition team have been relatively silent on other temporary working visa classifications, the L-1B classification has been the subject of controversy since December 2003, when Business Week published an article entitled “A Loophole as Big as a Mainframe.” The gist of the article was that third-party consultants were able to circumvent the salary requirements of the H-1B program by classifying their IT professionals as experts with “specialized knowledge” under the L-1B category. Following this article, Congress passed the L-1B Reform Act, which put limitations on the ability of consulting firms to place L-1B employees on worksites that were not their own. U.S. Citizenship and Immigration Services (“USCIS”) also began issuing progressively narrow interpretations of the L-1B definition of “specialized knowledge” to address this issue. This trend continued until March 2015, when USCIS issued what the agency characterized as “more relaxed” guidelines. In practice, the L-1B classification remains a volatile area in business immigration and, thus, may attract scrutiny from the new administration.

    Like the H-1B program, the L-1B classification is statutory and immediate changes to the program are therefore unlikely. However, the new administration could issue guidance returning USCIS back to an even more restrictive interpretation of “specialized knowledge,” and this would have a much more immediate impact on the eligibility of FNs for this classification. Here also, the new administration could ramp up the number of anti-fraud site visits at L-1B employers to make sure that they comply with the L-1B Reform Act. If this occurs, it likely would have a disproportionate impact on smaller organizations that do not utilize the blanket L program.

  5. F-1 Optional Practical Training (“OPT”): OPT has become an increasingly controversial component of the U.S. educational system. Prior regulations allowed foreign students up to one year of OPT work authorization following graduation. Recent regulatory changes have increased the authorized OPT work period up to three years if the FN has a STEM (Science, Technology, Engineering, and Mathematics) degree and the employer is registered with and using E-Verify. Several people reportedly advising the President-elect on immigration policy have expressed opposition to OPT because, in their view, it siphons employment opportunities from U.S. workers. Under the Trump administration, we can expect this debate to continue. The alteration or elimination of OPT work authorization, however, would require changes in the existing regulations. These changes do not appear to be imminent.

  6. Spousal Employment: Many spouses of FNs legally in the United States are authorized by statute to work. Examples are the spouses of E and L nonimmigrants and applicants for permanent residence. In many other cases, however, spousal employment rests on regulatory provisions. Examples include employment authorization granted to the H-4 spouses of H-1B nonimmigrants who are the beneficiaries of approved I-140 petitions, or who are permitted to work here beyond six years pursuant to Section 106(a) of the American Competitiveness in the Twenty-First Century Act of 2000. Any administration emphasis on creating more job opportunities for Americans suggests that these regulatory provisions might be part of efforts to review the existing immigration system. Revising those provisions, however, cannot be accomplished by executive order and will require a regulatory change.

  7. Visa Processing: Most FNs seeking admission to the United States must first apply for and secure a visa. During this visa application process, the U.S. Department of State conducts security and background checks to make sure that the FN does not pose a threat or otherwise violate U.S. immigration requirements. Throughout the campaign, candidate Trump repeatedly promised to enhance the current U.S. immigration vetting process to prevent terrorists and criminals from entering the country. If the vetting process for FNs applying for U.S. visas is materially changed, this may significantly delay the immigration process for everyone.

    At the same time, the Visa Waiver Program (“VWP”) has come under additional scrutiny because it represents an exception to the standard visa application process. Given President-elect Trump’s stance on tightening the security screens on any FN seeking admission to the United States, it is likely that the VWP will also be under scrutiny in any Trump administration immigration policy review.

  8. Expansion of E-Verify: E-Verify is the system offered by the federal government to check the identity and work authorization of all new employees. With certain exceptions, it currently is voluntary for most employers, except in states that mandate its use. Arizona was the first state to require employers to use E-Verify or risk loss of their license to do business in the state, and the state statute imposing this requirement, the Legal Arizona Workers Act, was upheld by the U.S. Supreme Court in Chamber of Commerce v. Whiting, 563 U.S. ___ (2011). With its emphasis on immigration enforcement and a sympathetic Congress, the Trump administration might place mandatory use of E-Verify high on its legislative agenda.

  9. Worksite Enforcement: The Trump administration is likely to increase the amount of worksite enforcement significantly. President Obama has largely managed worksite enforcement through large fines levied by Immigration and Customs Enforcement for Form I-9 violations; the Obama administration expected this policy to deter employers from hiring and retaining FNs not authorized to work. Under a Trump administration, we expect to see less Form I-9 enforcement through fines and more enforcement through criminal prosecutions, as well as possible unannounced employer worksite inspections aimed at those suspected of employing undocumented workers.

  10. Proposed Regulations: At the present time, there are several proposed regulations that are working their way through the federal government’s rulemaking process. This includes the Obama administration’s proposed rules on international entrepreneurs and the U.S. Department of Labor’s proposals to modernize the PERM labor certification process. Given President-elect Trump’s often expressed opposition to new regulatory proposals and support for rolling back existing regulations, the future of these and any other regulatory initiatives is in doubt.

    On November 18, 2016, USCIS issued a final rule containing improvements to the EB-1, EB-2, and EB-3 immigrant classifications that the Obama administration designed to retain FNs who are the beneficiaries of employer-sponsored petitions in those classifications.  According to USCIS, this rule will provide (i) improved process and certainty for employers seeking to sponsor and retain FN employees, (ii) greater stability and job flexibility for these FN workers, and (iii) more administrative consistency to USCIS adjudications of the applications involving these FN workers. Under the Congressional Review Act (“CRA”), 5 U.S.C. §§ 801-08, Congress essentially has 60 days to review and reject any new regulation. By publishing this rule now, the Obama administration may avoid rejection by Congress and the Trump administration under the CRA. Any new rules issued within 60 days of the inauguration, however, may be subject to the CRA’s provisions.

Overall Outlook 

Much of this year’s presidential campaign rhetoric focused on the Mexican wall, restrictive immigration policies, and the mass incarceration and/or deportation of undocumented aliens in this country. At the present time, however, the budgetary and enforcement capacity constraints appear likely to limit the immediate realization of any such policies. Nevertheless, the campaign has stimulated a national debate on immigration and, thus, has increased the possibility of more comprehensive immigration reform being proposed later in the Trump administration.

This possibility is underscored by the reality that any uncertainty as to immigration and enforcement may have a serious impact on industries, such as agricultural and hospitality, which traditionally employ undocumented FNs, and on such sectors as technology, financial services, and health care and life sciences, which rely more on documented skilled and highly educated FNs. These industries are (i) important to the national economy, (ii) major employers in many congressional districts, and (iii) likely to beseech elected representatives to solve the immigration “problem.” The harsh truth is that America may not have enough of the necessary and willing workers to fill all the positions that a growing economy demands. In concert, these factors may drive the debate on immigration reform because the United States needs a comprehensive solution to grow the economy as the new administration has promised.

There is significant agreement that the current immigration system is antiquated and needs overhaul. Aside from the enforcement issues, the United States needs an immigration system that facilitates the admission of FNs whose labor and/or skills are critical to economic growth and who will not displace or supplant American workers. The ultimate irony may be that the enormous costs of massive immigration enforcement and the economic consequences to employers of American workers from overly restrictive immigration laws may be the catalyst for meaningful immigration reform.

ARTICLE BY Robert S. Groban, Jr., Pierre Georges Bonnefil, Patrick G. Brady, Jungmin Choi & Jang Hyuk Im of Epstein Becker & Green, P.C.

©2016 Epstein Becker & Green, P.C. All rights reserved.