Tag: President Trump

President Trump Will Welcome Palestinian President to White House, Meet with Australian Prime Minister in New York City

White HouseCongress Will Hold Hearings on Human Trafficking, Remittances and International Development, While Also Focusing on a Longer-Term Funding Measure for the Remainder of Fiscal Year 2017

President Donald Trump welcomed Argentine President Mauricio Macri to the White House last Thursday. In a joint statement, the two leaders committed to expanding bilateral trade and investments; strengthening cooperation to counter narco-trafficking, terrorist financing, money laundering, corruption and other illicit finance activities; and increasing cooperation on cyber policy. President Trump will welcome Palestinian President Mahmoud Abbas to the White House on Wednesday. The President will travel to New York City on Thursday for an event and will also meet with Australian Prime Minister Malcolm Turnbull.

President Trump signed multiple executive documents last week, including a Memorandum on aluminum and national security interests, as well as Executive Orders (E.O.) on veterans affairs, energy, agriculture, land management, and education. President Trump marked his 100th day in office with a Make America Great Again rally in Harrisburg, Pennsylvania, after signing two more E.O.s related to trade on Saturday.

On Friday, Secretary of Defense Jim Mattis honored two U.S. Army Rangers who died Thursday in Afghanistan. He said: “They carried out their operation against [the Islamic State of Iraq and Syria-Khorasan] in Afghanistan before making the ultimate sacrifice to defend our nation and our freedoms.”

Congress passed a short-term measure on Friday to fund the Federal Government for another week, allowing both chambers additional time to negotiate a longer-term measure that will fund the Government through the end of Fiscal Year 2017.  The Senate also approved the nomination of Sonny Perdue to serve as Secretary of the U.S. Department of Agriculture last Monday. Congress is in session this week.

North Korea – U.S. Continues Pressure on the International Community

Secretary of State Rex Tillerson chaired the U.N. Security Council on Friday, where he focused on North Korea’s illegal nuclear program and its continued provocative activities. He sought to get the Council to act and leverage additional pressure on North Korea, saying:

“For too long, the international community has been reactive in addressing North Korea. Those days must come to an end.”

He outlined steps that the international community could undertake to leverage North Korea into abandoning its nuclear program. The White House released a brief statement on Friday afternoon acknowledging President Trump was briefed on North Korea’s failed missile test that day.

On Wednesday, after a briefing to the Senators at the White House, Secretary Tillerson, Defense Secretary Mattis, and Director of National Intelligence Dan Coats issued a joint statement on North Korea’s unlawful weapons programs and nuclear and ballistic missile tests, saying each provocation jeopardizes stability in Northeast Asia and poses a growing threat to U.S. allies and the U.S. homeland. The officials noted: “We are engaging responsible members of the international community to increase pressure on the D.P.R.K. in order to convince the regime to de-escalate and return to the path of dialogue. We will maintain our close coordination and cooperation with our Allies, especially the Republic of Korea and Japan, as we work together to preserve stability and prosperity in the region. The United States seeks stability and the peaceful denuclearization of the Korean peninsula. We remain open to negotiations towards that goal. However, we remain prepared to defend ourselves and our Allies.”

Chairman of the Joint Chiefs of Staff Joseph Dunford also participated in the Senate briefing.  In a summary, the Defense Department recapped North Korea as an urgent national security threat and a top foreign policy priority for the U.S. Government.

On 27 April, the head of U.S. Pacific Command recommended that the U.S. military develop capabilities that can directly defend against North Korean artillery. Testifying at a Senate Armed Services Committee hearing last week, Adm. Harry Harris shared that the U.S. currently cannot counter an artillery barrage from North Korea. He explained the missile defense system that the United States is deploying to South Korea, is only designed to intercept ballistic missiles. North Korea currently possesses roughly 4,000 artillery pieces positioned near the demilitarized zone. Committee Chairman John McCain (R-Arizona) noted that these pieces had the potential to target the South Korean capital, Seoul, and its metropolitan area of 26 million people.

South Korea – McMaster Affirms Missile Defense

On 30 April, National Security Adviser Lt. Gen. H.R. McMaster confirmed that the United States would adhere to its agreement with South Korea for a new missile defense system, but indicated that payment for the system might be renegotiated. The Terminal High Altitude Area Defense system, also known as THAAD, is being rolled out in response to military provocations from North Korea.

In an interview with “Fox News Sunday,” McMaster shared that he told his South Korean counterpart that “until any renegotiation, that the deal’s in place,” but explained that, “what the president’s asked us to do is to look across all of our alliances and to have appropriate burden-sharing, responsibility-sharing.” President Donald Trump said in a recent interview that he “informed South Korea it would be appropriate if they paid” for the missile defense system.

Syria, Iraq – Combating ISIS

The Pentagon gave an update last Friday on the U.S. and Coalition military forces’ efforts to combat the Islamic State of Iraq and Syria (ISIS). Coalition forces conducted 24 strikes consisting of 30 engagements against ISIS targets in Syria. In Iraq, Coalition forces conducted eight strikes consisting of 24 engagements against ISIS targets, coordinated with and in support of the Iraqi government. The destruction of ISIS targets in both countries also further limits the group’s ability to project terror and conduct external operations throughout the region and the rest of the world, according to task force officials.

U.S. Ambassador to the United Nations Nikki Haley said on Thursday at a U.N. Security Council session she chaired on the humanitarian crisis in Syria:

“All eyes and all pressure now need to go to Russia because they are the ones that could stop this if they wanted to…the images don’t lie. The humanitarian workers don’t lie. The fact that they can’t get the assistance they need – that’s not lying. What is, is to continue to give Russia a pass for allowing this terrible situation to occur. I will continue to press the Security Council to act, to do something, regardless of if the Russians continue to veto it, because it is our voice that needs to be heard.”

The Department of State designated Mubarak Mohammed A Alotaibi as a Specially Designated Global Terrorist (SDGT) under Executive Order E.O. 13224 on 27 April.  Alotaibi is the Syria-based deputy leader of Islamic State of Iraq and Syria’s (ISIS) affiliate in Saudi Arabia, which was designated by the U.S. Department of State as a SDGT under E.O. 13224 on 19 May 2016.

On 24 April, the Department of the Treasury’s Office of Foreign Assets Control (OFAC) announced new sanctions targeting 271 Syrian individuals in response to the 4 April sarin gas attack in Syria. According to an accompanying press release, the action – one of the largest OFAC has ever taken – targets employees of Syria’s Scientific Studies and Research Center (SSRC). They have been added to OFAC’s list of Specially Designated Nationals (also known as the SDN List) pursuant to Executive Order 13582, “Blocking Property of the Government of Syria and Prohibiting Certain Transactions With Respect to Syria.” The full list of newly-designated individuals can be found here.

Afghanistan – Review of U.S. Policy

Defense Secretary Mattis added another stop to his Middle East trip last week that focused on a theme of combatting ISIS. The Secretary was in Kabul, Afghanistan, last Monday. At a press conference Secretary Mattis said of the 21 April Taliban attack on an Afghan military base and mosque that killed more than 100 people: “As if we needed a reminder of the type of enemy we’re up against, the killing of Afghan citizens and soldiers — protectors of the people — just as they were coming out of a mosque, a house of worship, it certainly characterizes this fight for exactly what it is. These people have no religious foundation. They are not devout anything, and it shows why we stand with the people of this country against such heinous acts perpetrated by this barbaric enemy and what they do.”

Regarding President Trump’s directive to review of U.S. policy in Afghanistan, Secretary Mattis said: “This dictates an ongoing dialogue with Afghanistan’s leadership, and that’s why I came here: to get with President Ghani and his ministers and hear directly and at length from … General Nicholson to provide my best assessment and advice as we go forward.”

NAFTA – U.S. Withdrawal Averted

President Trump considered signing an order last week that would have withdrawn the United States from the North American Free Trade Agreement (NAFTA). After news of the possible action emerged, the leaders of Mexico and Canada, interested stakeholders, and Members of Congress rallied to call the White House and urge against such action. President Trump said in an interview on Thursday: “I was all set to terminate [NAFTA]. I looked forward to terminating. I was going to do it.” Later in the interview, the President added he reserves the right to change his mind – “I can always terminate.”

Nominations – Update

The Senate has yet to schedule a final vote on Amb. Robert Lighthizer’s nomination to serve as U.S. Trade Representative.  A vote is expected to happen in the next couple of weeks.

Last week, President Trump announced his intent to nominate the following individuals: (1) Kari A. Bingen to serve as Principal Deputy Under Secretary of Defense for Intelligence.  Ms. Bingen currently serves as the policy director for the House Armed Services Committee. (2) Robert Story Karem to serve as Assistant Secretary of Defense for International Security Affairs.  Mr. Karem most recently served on the Presidential Transition Team as an advisor to Central Intelligence Agency Director, Mike Pompeo, during his confirmation process.  He previously served in the White House as a Middle East policy advisor to former Vice President Richard B. Cheney.

Congressional Hearings This Week

  • On Tuesday, 2 May, the House Foreign Affairs Subcommittee on Global Human Rights is scheduled to hold a hearing titled “Wining the Fight Against Human Trafficking: The Frederick Douglass Reauthorization Act.”

  • On Tuesday, 2 May, the Senate Banking, Housing, and Urban Affairs Committee is scheduled to hold a hearing titled “Examining the U.S. – E.U. Covered Agreements.”

  • On Tuesday, 2 May, the Senate Foreign Relations Committee has scheduled a hearing to consider the nomination of the Honorable Terry Brandstad, to serve as U.S. Ambassador to China.

  • On Wednesday, 3 May, the House Foreign Affairs Committee is scheduled to hold a hearing to consider the following bills:

    • R. 1625 – To amend the State Department Basic Authorities Act of 1956 to include severe forms of trafficking in persons within the definition of transnational organized crime for purposes of the rewards program of the Department of State, and for other purposes.

    • R. 1677 – To halt the wholesale slaughter of the Syrian people, encourage a negotiated political settlement, and hold Syrian human rights abusers accountable for their crimes.

    • R. 2200 – To reauthorize the Trafficking Victims Protection Act of 2000, and for other purposes.

  • On Wednesday, 3 May, the Senate Foreign Relations Subcommittee on International Economic, Energy, and Environmental Policy is scheduled to hold a hearing titled “Global Philanthropy and Remittances and International Development.”

  • On Thursday, 4 May, the Senate Foreign Relations Committee is scheduled to hold a hearing titled “International Development: Value Added Through Private Sector Engagement.”

Looking Ahead

Washington is expected to focus on the following upcoming events:

  • 3 May: President Trump will welcome Palestinian President Mahmoud Abbas

  • 4 May: President Trump travels to New York City, where he will hold a bilateral meeting with Australian Prime Minister Malcolm Turnbull

  • May: Formal notification to Congress of intent to renegotiate NAFTA expected

  • 25 May: President Trump to attend the NATO Leaders Meeting in Belgium

  • 26-28 May: President Trump to attend the G-7 Leaders’ Summit in Taormina, Sicily

  • 18-20 June: SelectUSA Investment Summit in National Harbor, Maryland

ARTICLE BY Stacy A. Swanson and Pooja Virkar of Squire Patton Boggs (US) LLP

© Copyright 2017 Squire Patton Boggs (US) LLP

President Trump Signs New Executive Order: “Buy American and Hire American”

On April 18, 2017, President Donald Trump signed an Executive Order (EO) titled “made in the USA buy american and hire americanBuy American and Hire American.” The stated purpose of this EO is to protect the American economy by having the U.S. government and agencies focus on purchasing goods made in America, and to also protect American workers. The first part of the EO includes text that focuses on conducting studies and putting forth plans for federal agencies to immediately maximize the use and procurement of materials and products made in the United States—or “Buy American.”

The second part of the EO includes text that focuses on “Hire American,” that is, reviewing current U.S. immigration laws, specifically as they relate to nonimmigrant visa categories. A summary of the second part of the EO is below:

Ensuring the Integrity of the Immigration System in Order to “Hire American”:

  • The Secretary of State, the Attorney General, the Secretary of Labor, and the Secretary of Homeland Security are tasked with proposing new rules and issuing new guidance with the intent of protecting U.S. workers and eliminating fraud or abuse.

  • In addition, the text of the EO directs that reforms should be focused on ensuring that H-1B status is only granted to those who are the “most-skilled” or the “highest-paid.”

This EO comes only a few weeks after various U.S. federal agencies tasked with administering immigration law issued guidance and decisions with the intent of preventing fraud and abuse in the immigration system, specifically the H-1B program. The United States Citizenship and Immigration Service, the Department of Justice, and the Department of Labor all released statements and/or policy with regard to the H-1B program.  To see a summary regarding these statements and/or policies, please visit our previous post.

ARTICLE BY Kristen W. Ng of Greenberg Traurig, LLP
 ©2017 Greenberg Traurig, LLP. All rights reserved.

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.

ARTICLE BY MapLight

© Copyright MapLight

Health-Related Programs Face Deep Cuts In President Trump’s “Budget Blueprint to Make America Great Again”

President Trump Budget Make America Great Again HatsOn March 16, 2017, President Trump Administration released his first budget outline for the 2018 fiscal year (FY 2018). In an effort to “shrink the role of government,” the $1.1 trillion budget proposal calls for a $54 billion increase in defense spending, with a corresponding $54 billion reduction in funding for many federal government programs. In particular, the Department of Health and Human Services (HHS) and the National Institutes of Health (NIH) would absorb double-digit budget cuts, in addition to other consolidation efforts involving those agencies.

President Trump is expected to release a full FY 2018 budget request in May of this year. Although the budget blueprint delivers on President Trump’s campaign promise for increased homeland security and military spending, opposition from both Democratic and Republican lawmakers suggests that the proposed cuts are unlikely to fully survive the congressional appropriations process.

Key Health-Related Spending Cuts Under the Budget Proposal

The NIH, a division within HHS, is the principal government agency for biomedical and health-related research. While 10% of NIH funding is used for research within its own facilities, the agency awards nearly 80% of its funding to outside universities, medical schools, and other research institutions. The Trump Administration proposes to reduce the NIH’s budget by $6 billion, or nearly 20%—back to its lowest level in 15 years.

The proposed budget cut eliminates $403 million in health professions and nursing training programs because the programs purportedly “lack evidence that they significantly improve the Nation’s health workforce.”

The proposal also calls for a “major reorganization” of the 27 NIH institutes and centers “to help focus resources on the highest priority research and training activities.” So far, the Administration’s only request with respect such reorganization is the abolishment of the Fogarty International Center, a $70 million program dedicated to training scientists in developing nations, particularly in Africa, to detect and control the spread of emerging infectious diseases.

The spending plan also consolidates the Agency for Healthcare Research and Quality (AHRQ) within the NIH. The AHRQ, which supports research on healthcare delivery cost, quality, and safety, could cease to exist under the proposed cuts.

Not surprisingly, President Trump’s budget proposal has been met with criticism from those in the biomedical research community. According to a statement released by the Association of American Medical Colleges, major cuts to the NIH would “cripple the nation’s ability to support and deliver” biomedical research. Likewise, according to Andrew Rosenberg, director of the Center for Science and Democracy with the Union of Concerned Scientists, “[w]hat this budget does is ignore evidence and undermine our very ability to collect it across the board.”

Other Important Budget Details

The budget blueprint also proposes to decentralize the Centers for Disease Control and Prevention (CDC), another agency within HHS, by establishing a state block grant program “to increase State flexibility and focus on the leading public health challenges specific to each State.” While this change would lessen categorical funding restrictions, like other block grant mechanisms, it likely would have the effect of reducing federal funding for such programs.

Notwithstanding the proposed cuts, the Administration plans to continue funding for the Global Fund to Fight AIDS, Tuberculosis and Malaria, and the President’s Emergency Plan for AIDS Relief. The budget outline also requests an additional $500 million for HHS to “expand opioid misuse prevention efforts and to increase access to treatment and recovery services.”

Trump Administration’s First Budget Battle; Implications for FY 2018 Proposal

While President Trump’s budget proposal sheds some light on his Administration’s priorities, it also faces an uphill battle in gaining acceptance in Congress. While lack of support for the budget proposal from congressional Democrats is unsurprising, several GOP leaders have already come out and voiced their opposition to the budget cuts. Rep. Hal Rodgers (R-KY), former chairperson of the House Appropriations Committee, has called the proposed cuts “draconian, careless, and counterproductive.” Rep. Tom Cole (R-OK), a member of both the House Appropriations and Budget Committees, described the cuts to NIH and CDC as “short-sighted.”

Still, some biomedical industry leaders have expressed confidence that Congress will not end up moving forward with the proposed cuts. “Congress has a long bipartisan history of protecting research investments,” noted Rush Holt, CEO of the American Association for the Advancement of Science (AAAS). “We are grateful and encouraged that members of Congress have already spoken out about the importance of keeping NIH funding at healthy levels,” added David Arons, CEO of the National Brain Tumor Society.

One additional development to keep in mind in connection with President Trump’s proposed budget for FY 2018 is how Congress will address the FY 2017 continuing resolution. The continuing resolution currently maintains government spending at FY 2016 levels, but is set to expire on April 28. By this date, Congress must pass an appropriations bill to keep the government running for the remainder of FY 2017. How President Trump and Congress address this issue could give an indication on whether Congress is willing to work with the President’s FY 2018 budget outline.

Copyright © 2017, Sheppard Mullin Richter & Hampton LLP.

Trump EO Biometric Entry-Exit Section Raises Concerns of Lawmakers over Costs, Logistics

fingerprints biometricMembers of Congress from states bordering Canada, the Northern Border Caucus, have focused on a section of President Donald Trump’s “Protecting the Nation from Foreign Terrorist Entry into the United States” Executive Order directing DHS to expedite “the completion and implementation of a biometric entry-exit tracking system for all travelers to the United States.” Calling it “unnecessary” on the northern border, representatives from New Hampshire, New York, North Dakota, Vermont, and Washington are concerned the system will lead to long lines and waits, interfere with commercial traffic, and damage tourism in their states.

In Buffalo, New York, there is bipartisan opposition to implementation of the biometric system. Representative Brian Higgins (D) believes the cost of implementation, $6.5 billion, will bring it to a halt when it comes to Congress for funding. In fact, that was where a similar proposal died two years ago. Representative Chris Collins (R) expressed particular concern about a reduction in sports tourism – reducing fan attendance at Buffalo Bills football and Buffalo Sabres hockey.

Because there is already a joint biometric entry-exit partnership agreement in effect between the United States and Canada, the Beyond the Border Action Plan, the Caucus has asked that the Administration do a careful cost-benefit analysis and coordinate with the Canadian government before instituting a costly enhancement.

The Canadian government, perhaps in reaction to Trump Administration policies, is considering legislation to expand preclearance at Canadian airports. Prime Minister Justin Trudeau suggested that Canadians would be better protected under the Canadian Charter of Rights if they cleared U.S. Customs on Canadian soil. But the measure would give CBP officers the right to question, or detain for hand-over to Canadian officials, any Canadian suspected of violating Canadian law. There is opposition. Canadian lawmakers are concerned about granting additional authority to CBP because the bill “does not address Canadians’ concerns about being interrogated, detained and turned back at the border based on race, religion, travel history or birthplace.”

Meanwhile, Canada is prepared to capitalize on the controversy swirling around the Trump Administration’s immigration policies. Trudeau has extended his welcome, and so has the City of Vancouver, just a two-hour flight from the Silicon Valley. Indeed, a Canadian start-up, True North, is introducing high-skilled foreign nationals and their companies to the advantages of having a back-up plan in Vancouver, providing introductions to Canadian immigration lawyers, and exploratory trips.

This post was written by Moni Gill.

ARTICLE BY Moni Gill and the Immigration Team at Jackson Lewis

Jackson Lewis P.C. © 2017

Trump Executive Order Seeks to Limit Scope of Clean Water Act

clean water act, EPA, environmental protection agencyThe executive order asks agencies to repeal or revise an Obama-era rule defining the scope of the Clean Water Act and recommends adoption of a narrower standard articulated by the late Justice Scalia.

On February 28, US President Donald Trump issued an executive order asking the US Environmental Protection Agency (EPA) and the US Army Corps of Engineers (Army Corps) to repeal or revise a 2015 rule interpreting the term “waters of the United States,” which determines the jurisdictional reach of the Clean Water Act. The order further recommends that the agencies consider crafting a new definition based on the “continuous surface connection” test adopted by a plurality of the US Supreme Court in Rapanos v. United States, which would result in a significant contraction in the Clean Water Act’s scope from the Obama EPA’s 2015 rule.[1] The 2015 rule was met with extensive criticism by some stakeholders and gave rise to a flurry of litigation. A new rule issued in response to President Trump’s executive order is likely to do the same—resulting in continued uncertainty as to the proper scope of the Clean Water Act and possibly requiring further review by the Supreme Court to resolve the question.

Background

The scope of jurisdiction under the Clean Water Act has long been controversial. It is also an important issue for stakeholders such as farmers, developers, and energy companies that own or use properties that may contain a “water of the United States.” The scope of the act affects the application of a number of regulatory programs, including the section 402 point source discharge permit program, the section 404 dredge and fill permit program, and the section 311 oil spill prevention program.

The Clean Water Act applies to “navigable waters,” which are defined in the statute as “waters of the United States, including territorial seas.” EPA and the Army Corps, the agencies charged with administrating the Clean Water Act, have sought multiple times to define “waters of the United States” through rulemakings and regulatory guidance, and those regulatory efforts have been subject to numerous legal challenges. The US Supreme Court has weighed in on the issue three times, most recently in Rapanos v. United States.[2] Rapanos resulted in a fractured decision in which no interpretation received support from a majority of the court—Justice Antonin Scalia and three other justices articulated a test based on a “continuous surface connection,” while Justice Anthony Kennedy’s concurrence relied on whether there was a “significant nexus” to another water of the United States.[3] Because Justice Kennedy’s analysis provided the narrowest grounds for reversal, the “significant nexus” test has been understood by many as the controlling test post-Rapanos for what constitutes a water of the United States.

In May 2015, EPA and the Army Corps issued a new rule seeking to better define the Clean Water Act’s scope.[4] The agencies maintained that the final rule only clarified and limited the reach of the act, but many stakeholder groups concluded that the 2015 rule significantly expanded the existing interpretation of waters of the United States. Of particular concern to stakeholders were categorical inclusions of “tributaries” and waters “adjacent” to other waters of the United States, as well as the rule’s broad definition of what constitutes a “significant nexus.” Numerous lawsuits challenging the rule were filed, which are currently consolidated in the US Court of Appeals for the Sixth Circuit.

The Executive Order

On February 28, 2017, President Trump issued an executive order asking EPA and the Army Corps to review the 2015 rule and propose a new rule “rescinding or revising” it. The order also asks the agencies to consider defining waters of the United States “in a manner consistent with the opinion of Justice Antonin Scalia in Rapanos v. United States.” The order further directs the US attorney general to take appropriate measures regarding the ongoing litigation over the 2015 rule.

EPA and the Army Corps released a prepublication Federal Register notice the same day noting their intention to “review and rescind or revise” the 2015 rule pursuant to President Trump’s executive order. The agencies also acknowledged that they would consider adopting Justice Scalia’s test from Rapanos.

Implications

It likely will take years for the exact contours of the new regulation to be fleshed out by EPA and the Army Corps and for any ensuing litigation to be resolved. The process likely will start with the withdrawal of the Obama-era rule and the issuance of a new rule, including an explanation as to how the new rule fulfills the legislative intent of the Clean Water Act. The new rule will be subject to a public comment period.

If the agencies’ new rule is indeed based on Justice Scalia’s “continuous surface connection” test from Rapanos, it likely would entail a significant contraction in the scope of the Clean Water Act from existing practices and the Obama EPA’s 2015 rule. For example, a wetland next to a navigable river presumably would be covered by the act only if surface water from the wetland flowed into that river on a year-round basis, regardless of any subsurface flows. Under the 2015 rule, the same wetland could be covered under the act as a water “adjacent” to another water of the United States in the absence of a continuous surface connection. Many tributaries and ephemeral waters also likely no longer would be subject to regulation under the Clean Water Act if the “continuous surface connection” test is adopted. Such changes likely would be hailed by stakeholders that would have been prohibited from engaging in certain activities or obtaining permits under the 2015 rule, but criticized by environmental groups seeking to broadly protect aquatic resources.

Given the stakes and the contentious atmosphere regarding the scope of the Clean Water Act, any new rule is likely to be challenged in court. One issue that may be raised by challengers is whether a rule based on Justice Scalia’s “continuous surface connection” test is consistent with the requirements of the Clean Water Act as interpreted by Supreme Court decisions, including Rapanos. Opponents of the rule could contend that a “continuous surface connection” standard is inconsistent with the Rapanos court’s view of the limits of the Clean Water Act because five justices rejected Scalia’s test as too restrictive, and most lower courts have treated Justice Kennedy’s “significant nexus” test as the operative standard. Proponents of a new rule could counter that such a construction is nonetheless a permissible interpretation of the Clean Water Act (as evidenced by the plurality’s opinion in Rapanos) that is entitled to judicial deference.[5]  

Environmental groups or others opposed to a new rule could also challenge the merits of the rule under the Administrative Procedure Act. Such a challenge could rely in part on the new rule’s departure from the 2015 rule, in which the Obama administration cited extensive scientific findings in support of its interpretation. While agencies can change their position, they must provide a “more detailed justification” if they rely on factual findings contradicting previous ones,[6] potentially heightening the agencies’ burden to provide support for a new rule.

In the interim, jurisdictional determinations under the Clean Water Act are likely to remain in a state of limbo. The 2015 rule has been stayed by the Sixth Circuit, technically leaving the rules and guidance pre-dating 2015 as the operative regulatory regime until the time that the stay is lifted or a new rule is promulgated. In light of the new administration’s expressed intent to limit the scope of the Clean Water Act, EPA and the Army Corps will be unlikely to assert jurisdiction over waters on the borderline of Clean Water Act jurisdiction until this legal limbo is resolved. The currently pending legal challenges also may be held in abeyance or remanded until the promulgation of a new rule, particularly given the executive order’s instruction to the US attorney general to take appropriate actions in pending litigation.

Ultimately, it likely will be years before the scope of the Clean Water Act is sorted out. And it may require a fourth trip to the Supreme Court for the justices to yet again wrestle with what are “waters of the United States.”

Additional Information

Additional information on the controversy that has surrounded efforts to define “waters of the United States” and the regulatory programs affected by the jurisdictional reach of the Clean Water Act can be found in the Clean Water Handbook, Fourth Edition, authored by Duke McCall and available from Bernan Press.

ARTICLE BY Duke K. McCall III, Ella Foley Gannon & Douglas A. Hastings of Morgan, Lewis & Bockius LLP
Copyright © 2017 by Morgan, Lewis & Bockius LLP. All Rights Reserved.

[1] 547 U.S. 715 (2006).

[2] Id.

[3] See id. at 717-18.  

[4] 80 Fed. Reg. 37,054. 

[5] See Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984).

[6] See FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009).  

President Trump to Give State of Union Address; Senate to Vote on Ross’ Nomination; Pentagon to Submit Its Anti-ISIS Plan

Trump State of Union AddressPresident Donald Trump is preparing to release another immigration-related Executive Order (E.O.) that is expected to refine a previous directive that banned Syrian refugees from entering the United States and suspended the issuance of visas and admission into the United States for foreign nationals from seven countries of “particular concern.” The President will address a joint session of Congress on Tuesday and give a speech expected to focus on the renewal of the American spirit.

The U.S. Congress returns to Washington on Monday, 27 February, with the Senate scheduled to vote that evening on Wilbur Ross’ nomination to serve as Secretary of Commerce.  The Pentagon is also set to submit its plan for defeating ISIS to the White House on Monday.

Syria: Combatting ISIS – DoD Plan Completed

Secretary of Defense Jim Mattis concluded his first trip to the Middle East on 20 February, a trip that included stops in the United Arab Emirates and Iraq. Pentagon Press Operations Director Navy Capt. Jeff Davis told reporters on Tuesday that Secretary Mattis gained valuable insight as he prepares to make key policy decisions, including submitting the results of a review of the Defense Department’s (DoD) strategy to defeat ISIS to the White House this week.

Chairman of the Joint Chiefs of Staff Gen. Joseph Dunford said of the military-political plan at a Brookings Institution event last week: “In the development of the plan, we have been engaged at every level of the State Department” he said.  Chairman Dunford added:  “Anything we do on the ground has to be in the context of political objectives or it is not going to be successful.”  The intelligence community and the Treasury Department have also participated in development of the plan.

Pentagon Spokesperson Capt. Jeff Davis told reporters on Friday that the Pentagon has supported an Authorization for Use of Military Force (AUMF) against ISIS under both the Trump and Obama Administrations. “An AUMF would make a lot of our congressional authorities clearer, and that thinking has not changed,” Davis said.

Senate Armed Services Committee Chairman John McCain (R-Arizona) recently traveled to Syria to speak with U.S. forces there about the campaign against ISIS, according to his office last Wednesday. His trip comes as U.S. Central Command Commander Gen. Joseph Votel told reporters that the Pentagon is considering whether to deploy additional troops to Syria. Chairman McCain met next with Saudi King Salman bin Abdulaziz al-Saud on 21 February. The two reportedly discussed regional issues and enhancing U.S. cooperation with the Kingdom.

Senate Foreign Relations Committee (SFRC) Chairman Bob Corker (R-Tennessee) and Ranking Member Ben Cardin (D-Maryland) sent a letter to Secretary of State Rex Tillerson dated 22 February that urged the Administration to “ensure Assad, Russia and Iran are made to answer for the war crimes and crimes against humanity committed in Syria.”  While all 10 Democratic Members of the SFRC signed the letter, Republican committee members appeared to be more reluctant in signing.  The letter also asks for an update on the Administration’s steps to document war crimes and crimes against humanity in Syria.

Iranian Naval Exercise Underway

Iran launched naval drills on Sunday, amid increased tension with the United States after the Trump Administration put “Iran on notice.” The U.S. Navy’s Fifth Fleet is based in the region.

Russia – Washington Scrutiny

Washington and the media continue to focus on increased allegations of Russian meddling in the United States. House Intelligence Committee Chairman Devin Nunes (R-California) said at this point there is no evidence of improper influence with respect to the Trump Administration, adding the House would not engage in a “witch hunt.”  Senator Tom Cotton (R-Arkansas), who serves as a member of the Senate Select Committee on Intelligence, cautioned this weekend against some calls for a special prosecutor to investigate the Administration’s alleged ties.  Meanwhile, the Senate Intelligence Committee is conducting an investigation of Russia’s effort to influence the 2016 U.S. election.

Mexico City Trip Readout

Secretary Tillerson and Secretary of Homeland Security John Kelly met Thursday with several Mexican officials, including Mexican President Enrique Peña Nieto. According to the State Department, both sides acknowledged that “two strong sovereign countries from time to time will have differences,” while also reaffirming “close cooperation on economic and commercial issues such as energy, legal migration, security, education exchanges, and people-to-people ties.”

Both sides also agreed the “two countries should seize the opportunity to modernize and strengthen our trade and energy relationship.” With respect to border security, the discussion included: (1) dismantling transnational criminal organizations that move drugs and people into the United States; (2) stopping the illicit flow of firearms and “bulk cash” that is originating in the United States and transiting to Mexico; and (3) curtailing irregular migration, which includes securing Mexico’s southern border and supporting efforts to stem the migration from Guatemala, Honduras, and El Salvador.

Press Secretary Spicer said of the bilateral meetings at the Thursday press briefing:

“Both sides had a candid discussion on the breadth of challenges and opportunities as part of the U.S.-Mexico relationship. The conversation covered a full range of bilateral issues, including energy, legal migration, security, education exchanges, and people-to-people ties.”

Peru Bilateral Meeting

President Trump met on Friday with Peruvian President Pedro Pablo Kuczynski, who was in the United States to receive an award from Princeton University. In remarks before the bilateral meeting, President Trump said Peru has been a “fantastic neighbor.” President Kuczynski noted:  “Latin America needs to grow more, and we’re going to talk about how to do that.”  White House readout of the meeting reflected:  “President Trump underscored the continued United States commitment to expanding trade and investment ties with Peru and others in the Asia-Pacific region.” The two leaders also discussed the political and economic situation in Venezuela.  President Trump also thanked Peru for hosting the 8th meeting of the Summit of the Americas next year.

Human Trafficking – A Priority

President Trump led a listening session on domestic and international human trafficking on Thursday. He acknowledged:

“Human trafficking is a dire problem, both domestically and internationally, and is one that’s made really a challenge [sic]. And it’s really made possible to a large extent, more of a modern phenomenon, by what’s taking place on the Internet, as you probably know.  Solving the human trafficking epidemic, which is what it is, is a priority for my administration”

He said he would direct the Departments of Justice and Homeland Security, as well as other federal agencies, to examine its resources and determine whether additional resources are needed to combat human trafficking: White House Press Secretary Sean Spicer said of the meeting: “Their expertise [re: meeting participants] will be invaluable to the President as he engages with members of Congress to raise awareness about, and push through, legislation aimed at preventing all forms of the horrific and unacceptable practice of the buying and selling of human lives.”

Foreign Policy Congressional Hearings This Week

  • On Tuesday, 28 February, the Senate Foreign Relations Committee is scheduled to hold a hearing titled “Iraq After Mosul.”

  • On Tuesday, 28 February, the House Foreign Affairs Subcommittee on the Western Hemisphere is scheduled to hold a hearing titled “Issues and Opportunities in the Western Hemisphere.”

  • On Tuesday, 28 February, the House Foreign Affairs Subcommittee on Asia and the Pacific is scheduled to hold a hearing titled “Checking China’s Maritime Push.”

  • On Wednesday, 1 March, the House Judiciary Committee is scheduled to hold a hearing titled “Section 702 of the Foreign Intelligence Surveillance Act.”

  • On Thursday, 2 March, the Senate Foreign Relations Committee is scheduled to hold a hearing titled “Venezuela: Options for U.S. Policy.”

Defense Congressional Hearings This Week

  • On Tuesday, 28 February, the House Armed Services Subcommittee on Oversight and Investigations is scheduled to hold a hearing titled “Hearing on Department of Defense Inspector General Report ‘Investigation on Allegations relating to USCENTCOM Intelligence Products.’”

  • On Wednesday, 1 March, the House Armed Services Committee is scheduled to hold a hearing titled “Cyber Warfare in the 21st Century: Threats, Challenges, and Opportunities.”

  • On Wednesday, 1 March, the House Armed Services Subcommittee on Tactical Air and Land Forces is scheduled to hold a hearing titled “U.S. Ground Force Capability and Modernization Challenges in Eastern Europe.”

  • On Thursday, 2 March, the Senate Armed Services Committee is scheduled to hold a hearing titled “Cyber Strategy and Policy.”

Looking Ahead

Washington is expected to focus on the following upcoming events:

  • 28 February: President Trump to address a joint session of Congress

  • Mid-March?: Release of the President’s Budget for Fiscal Year 2018

  • 14-15 March: Chile to host a Pacific Trade Summit in Vina del Mar, Chile

  • 21-23 April: World Bank/International Monetary Fund Spring Meeting in Washington

  • 28 April: U.S. Federal Government funding expires

ARTICLE BY Stacy A. Swanson of Squire Patton Boggs (US) LLP

© Copyright 2017 Squire Patton Boggs (US) LLP

DHS Guidance Memos Chart Aggressive Course to Implement President Trump’s Executive Orders on Immigration Enforcement

immigration enforcementOn February 20, 2017, U.S. Secretary of Homeland Security John Kelly released two new policy memoranda aimed at implementing President Trump’s executive orders on enhancing the public safety of the interior and border enforcement of immigration laws.

The first memo, titled “Enforcement of the Immigration Laws to Serve the National Interest,” immediately rescinded President Obama’s Priority Enforcement Program, which prioritized deportation of criminals and recently-arrived undocumented individuals, and gives immigration officials broad authority to deport “all removable aliens,” including those who have “committed acts which constitute a chargeable criminal offense” and those who “pose a risk to public safety or national security.” These enforcement guidelines mark a major policy shift that aims to dramatically escalate deportations of undocumented immigrants, potentially encompassing individuals who commit minor offenses like traffic infractions or who receive government assistance.

Secretary Kelly’s second memo, titled “Implementing the President’s Border Security and Immigration Enforcement Improvements Policies,” implements a dramatic expansion of expedited removal, a procedure that allows a U.S. Department of Homeland Security (DHS) official to remove a noncitizen from the U.S. without a hearing before an immigration judge. Prior to this memo, DHS limited its application of this summary procedure to inadmissible noncitizens who either arrived at a port of entry or were apprehended within 14 days of their arrival and within 100 miles of an international land border. Under the new guidance, DHS is now authorized to apply expedited removal to anyone who has not been continuously present in the country for the two years before apprehension and to individuals encountered anywhere in the United States.

The memoranda instruct DHS to immediately hire thousands of immigration enforcement officials, including 10,000 Immigration and Customs Enforcement (ICE) agents and 5,000 Border Patrol agents, as well as additional operational and support staff. Notably, the memos do not address how DHS will obtain the necessary funding for this hiring surge. Moreover, both memos call for a dramatic increase in the use of local law enforcement to act as immigration agents and enforce immigration law under Section 287(g) of the Immigration and Nationality Act.

While the memoranda do not rescind President Obama’s Deferred Action for Childhood Arrivals program, they make it evident that any undocumented immigrant who is charged with a crime, however minimal, is now eligible for deportation.

ARTICLE BY Anna F. Angel of Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

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

You’re Hired: President Trump Introduces Ethics Pledge For His Appointees With Serious Departures from Obama’s Ethics Pledge

Donald Trump ethics pledgeOn January 28, 2017, President Trump signed an executive order that requires all full-time political appointees to sign an ethics pledge (the “Trump ethics pledge”) that “contractually” binds them to certain ethical standards.  The Trump ethics pledge supersedes and is different from the ethics pledge that President Obama required appointees to sign during his administration (the “Obama ethics pledge”), and includes a five-year lobbying ban that severely restricts the ability of covered appointees to engage in the policy advocacy business upon leaving government.

The Trump ethics pledge applies to all full-time, non-career political appointees regardless of whether they are appointed by the president, the vice president, an agency head, or other government official.  It is unclear, without further guidance from the Office of Government Ethics, whether the Trump ethics pledge invalidates the Obama ethics pledge, or if that pledge remains intact for those who signed it.  In any event, a summary of the Trump ethics pledge highlighting the key restrictions and key differences from the Obama ethics pledge is below.  Please contact one of K&L Gates’ political ethics lawyers with any questions.

Appointees Leaving Government

Lobbying Ban

The Trump ethics pledge includes a “lobbying ban” that is far more restrictive than the Obama ethics pledge.  Not only is the lobbying ban extended from two years to five years, the scope of the ban is substantially expanded.  Under the terms of the Trump ethics pledge, covered appointees may not engage in “lobbying activities” with his or her former agency for five years upon leaving the government.  “Lobbying activities” is the defined term that appears in the Lobbying Disclosure Act (“LDA”) that includes both lobbying contacts and background preparation and strategy work.  This restriction also applies toengaging in lobbying activities with any covered executive branch official or non-career Senior Executive Service appointee for the remainder of the Trump Administration.

Therefore, as opposed to the Obama ethics pledge, which prohibited covered appointees from “lobbying” as defined as “acting as a registered lobbyist,” any covered appointee under the Trump ethics pledge is prohibited not just from acting as a registered lobbyist, but from engaging in the “behind the scenes” activity, regardless of whether the covered appointee’s lobbying contacts trigger lobbying registration.  Given the incredibly restrictive nature of this provision, the Office of Government Ethics may produce additional guidance, in which case we will supplement this alert with further analysis.

Cooling-off Period

The Trump ethics pledge restores the one-year “cooling-off” restriction for certain senior administration officials on contacting employees in their former agency that is codified in Section 207(c) of Title 18 of the United States Code.  Note that this is a broader restriction on making contacts than that of the lobbying ban since it applies to contacts with any employee of the former agency (as opposed to contacting covered officials and non-career Senior Executive Service appointees for purposes of the lobbying ban).  This is a departure from the Obama ethics pledge, which extended the statutory prohibition on contacting and appearing before former agency officials for two years.  As noted above, it is unclear whether this portion of the Obama ethics pledge still applies to signees of the Obama ethics pledge or if it has been invalidated.

Lifetime Ban on FARA Representation of Foreign Governments and Political Parties

The Trump ethics pledge also prohibits any covered appointee from engaging in any activity on behalf of a foreign government or political party that would require registration under the Foreign Agents Registration Act of 1938 (“FARA”) for the remainder of the appointee’s life.  This is another massive departure from the Obama ethics pledge.  FARA, which implements strict disclosure requirements for any person who represents a foreign entity in seeking to influence U.S. public opinion, policy, and laws, is enforced by the Department of Justice.

Appointees Entering Government

Ban on Participating in Matters Involving Former Client or Employer

The Trump ethics pledge imposes a two-year ban on covered appointees from participating in matters that are directly and substantially related to their former client or employer, including regulations and contracts, when the former client or employer is, or represents, a party to that matter.  This includes any clients or employers for whom the covered appointee worked for during the two years prior to his or her appointment.  This language is identical to the Obama ethics pledge.

Ban on Participating in Matters Lobbied in the Past

The Trump ethics pledge prohibits covered appointees from working on particular matters on which the covered appointee lobbied (as a registered lobbyist) in the two years prior to their appointment.  This prohibition applies for two years after the covered appointee enters the government.  It also applies to participating in any matter that falls within the same specific issue area.  The terms of this prohibition are similar to those of the Obama ethics pledge.  However, in another departure from the more restrictive Obama ethics pledge language, the Trump ethics pledge does not prevent a covered appointee from working in an agency that he or she lobbied in the past.

Gift Ban

Like the Obama ethics pledge, covered appointees under the Trump ethics pledge are prohibited from accepting gifts from registered lobbyists or lobbyist organizations during their time in the Trump Administration.  The term “gift” has the same definition as under Office of Government Ethics rules, although covered appointees are not subject to all of the same exceptions.  Of note, covered appointees may not accept gifts that fall under the de minimis exception ($20 per gift/$50 per year), and may not attend widely attended gatherings free of charge.

ARTICLE BY Michael G. H. Pfeifer, Tim L. Peckinpaugh & Michael J. O’Neil of K&L Gates
Copyright 2017 K & L Gates

President Trump Establishes Regulatory Budgets by Executive Order

law books, regulatory budgetAmid  all of the controversy surrounding President Trump’s Executive Order suspending immigration from seven countries, and his nomination of Judge Neil Gorsuch to the Supreme Court, another executive order that may be at least as significant in the long run to reining in the administrative state has not received much attention.  The Executive Order on “Reducing Regulation and Controlling Regulatory Costs,” issued on January 30 without much fanfare, did three things: (1) required every agency promulgating any new regulation to get rid of two existing regulations; (2) required that the projected cost to the economy of the regulations being eliminated must be at least as great as the costs of the new one, as computed under standard Office of Management and Budget (OMB) guidelines, and (3) authorized OMB to impose a regulatory budget on each agency.

The first point, sometimes called “one in, two out,” has garnered some media attention, but in the long run, the other two provisions limiting regulatory costs may be at least as significant, particularly for the Environmental Protection Agency, which has historically imposed about half the costs of federal government regulation on the economy.  But this Executive Order also takes us into new territory and raises a host of legal questions.

The idea of a “regulatory budget” to constrain the costs government imposes on the economy  has been discussed since the 1970’s.  The basic idea is to adopt Madison’s constitutional concept of “balancing ambition with ambition” to regulate the regulators.  However, in the past, establishing a regulatory budget has generally been thought to require legislation.  Although proposed on numerous occasions, statutory authority to impose regulatory budgets has never been enacted.  It remains to be seen whether the courts will allow a binding regulatory budget to be imposed on agencies by the White House acting alone.

The Administrative Procedure Act specifically creates a cause of action to “compel agency action unlawfully withheld” as well as a right to petition for new rules.  How will the courts react when agencies begin to turn down petitions for new rules because there is no room for them in the agency’s regulatory budget, or because the agency judges them to be less important than existing rules that would have to be eliminated to pay for the new regulations?

In Motor Vehicle Manufacturers Ass’n. State Farm Mutual Automobile Insurance Co., 463 U.S. 29 (1983), the Supreme Court rejected an attempt by the Reagan Administration unilaterally to rescind an existing rule requiring automatic seat belts.  That precedent appears to require not only notice and comment but also a rational basis in the record that will survive judicial review in order to eliminate a legislative rule previously promulgated through notice and comment procedures.  What weight will the courts give to agency proposals to eliminate existing rules because they are required to do so in order to promulgate new ones under the Trump Executive Order?  And what about emergency rules or rules required by statute?  Do those also require elimination of two existing regulations?

Even assuming that the courts do uphold President Trump’s authority to impose the requirements discussed above on agencies and departments “in” the Executive Branch, what about the “independent” agencies, such as the Federal Energy Regulatory Commission (FERC), the Consumer Product Safety Commission (CPSC) or the Federal Trade Commission (FTC)?   These agencies often consist of multi-member commissions, sometimes with staggered terms and members of different political parties and a statutory prohibition on firing except for good cause.  On its face, the Executive Order does not exempt them, but the President’s power to direct them is unclear.  In Humphrey’s Executor v. United States, 295 U.S. 602 (1935), the Supreme Court held that President Roosevelt could not fire the Chairman of the FTC for policy differences.  More recently, the Obama Administration issued an Executive Order stating that independent agencies “should” comply with prior executive directives regarding public participation, scientific integrity in the rule making process, and retrospective analyses.  A number of independent agencies followed President Obama’s Order, but have been careful to characterize it as “ask[ing]” or “request[ing],” not mandating, agency action.

There are also a host of implementation questions that will presumably have to be answered by the OMB guidance implementing the recent Executive Order.  Many regulations, particularly in the environmental area, require large initial capital costs, but much lower costs for on-going operation and maintenance expenses; for example, when installing new pollution control equipment.  In assessing whether the costs of the eliminated regulations balances the costs of the new regulations, may the agency take into account the historic costs that have already been incurred (what economists call “sunk costs”), or only the current on-going costs that would be eliminated if those regulations were rescinded (what economists call “avoided costs”)?

More broadly, this Executive Order, as well as prior executive actions relating to the Keystone and Dakota Access Pipelines and Infrastructure Permitting, provides insight into the strategy that the Trump Administration appears to intend to use to control the so-called “Administrative State.”  For years, Presidents have struggled to impose policy direction and control on the actions of agency bureaucrats whom they generally cannot fire due to civil service protections. Past approaches have included the creation of the Senior Executive Service who are subject to dismissal, the OIRA review process for new rules, and the White House “czars” created by the Obama Administration.  It is becoming increasingly clear that the Trump Administration intends to try to manage the agencies by Executive Order, a strategy that some legal scholars have questioned as constitutionally dubious if the President directs particular actions as opposed to establishing general principles.

ARTICLE BY E. Donald Elliott of Covington & Burling LLP

© 2017 Covington & Burling LLP