Tools of Transition: Procedural Devices That Could Help the President-Elect Implement His Agenda

November 30, 2016

President-elect Donald J. Trump ran on a predominantly deregulatory, limited-government platform that included, among other things, repeal and replacement of Obamacare, repeal of the Dodd-Frank Act and related regulations, repeal of environmental regulations related to climate change, and tax reform.  When he takes office on January 20, 2017, he will have several tools available to him and the Republican-controlled Congress to halt or otherwise claw back federal regulations promulgated during the Obama administration, enact legislative priorities, and staff the Executive and Judicial Branches (as well as independent agencies) with his nominees.  This alert discusses several of these tools, as well as their likely efficacy and their limits in facilitating the implementation of President-elect Trump’s deregulatory and other campaign positions.  These executive and congressional tools include: (1) a memorandum like the Andrew Card and Rahm Emmanuel memoranda that directs federal agencies to freeze the finalization of federal rules, (2) repeal of recently promulgated rules under the Congressional Review Act, (3) the budget reconciliation process, and (4) the so-called “nuclear option.”  Each of these tools is discussed below.

I.    Regulatory Moratorium and Postponement:  The “Priebus Memorandum” and “McCarthy Letter”

Like Presidents George W. Bush and Barack Obama, President-elect Trump likely will attempt to freeze pending rulemakings at the start of his administration by imposing a moratorium on the finalization of federal rules by executive departments and recommending that independent regulatory agencies do the same.  He likely will also request that departments and agencies withdraw proposed rules that have been sent to the Office of the Federal Register (“OFR”) but have not yet been published, and postpone the effective dates of rules that have been published but have not yet taken effect.

Both Presidents Bush and Obama used a similar strategy at the start of their administrations.  In January 2001, Assistant to the President and Chief of Staff Andrew H. Card, Jr. sent a memorandum (the “Card memorandum”) to the heads and acting heads of all executive departments and agencies asking them to take the following steps “to ensure that the President’s appointees ha[d] the opportunity to review any new or pending regulations”:

  1. Refrain from sending any proposed or final regulations to the OFR until after review and approval by a department or agency head appointed by President Bush;
  2. Withdraw from the OFR any regulations that had been sent to the OFR but not yet published in the Federal Register for review and approval; and
  3. Postpone for 60 days the effective date of regulations that had been published in the Federal Register but had not yet taken effect.[1]

The Card memorandum permitted exceptions for “emergency . . . situations related to health and safety” and “regulations promulgated pursuant to statutory or judicial deadlines.”[2]  It did not purport to bind independent agencies, but it “encouraged [them] to participate voluntarily in this review,” “in the interest of sound regulatory practice and the avoidance of costly, burdensome, or unnecessary regulation.”[3]

At the start of the Obama administration in 2009, Assistant to the President and Chief of Staff Rahm Emanuel issued a similar memorandum (the “Emanuel memorandum”) to the heads of executive departments and agencies, with a few modifications.[4]  First, the Emanuel memorandum allowed exceptions for “emergency situations” not only relating to health and safety, but also relating to “environmental, financial, or national security matters.”[5]  Second, it showed greater deference to agencies, asking them only to “consider” extending the effective dates of rules that had not taken effect, rather than directing them to do so.[6]  Third, it stated that when the effective dates of rules are extended, the agencies should allow interested parties to comment for 30 days “about issues of law and policy raised by those rules.”[7]  Finally, it did not address independent agencies.[8]

Generally, once final rules have been published in the Federal Register, the only way for a new administration to eliminate or change them is through the notice-and-comment rulemaking process delineated in the Administrative Procedure Act (“APA”).[9]  The APA specifies only very narrow exceptions to notice-and-comment for federal rules on the theory that regulated parties are entitled to notice of the regulations with which they must comply and an opportunity to comment on the government’s proposal and explain what compliance will entail.[10]  These limited exceptions include when the agency is issuing a “rul[e] of agency organization, procedure, or practice,” or when the agency determines “for good cause” that notice-and-comment procedures are “impracticable, unnecessary, or contrary to the public interest.”[11]  Agencies have typically relied on one or more of these exceptions when they have postponed the effective dates of published rules at the direction of a new administration without following the notice-and-comment process.[12]  In some instances, courts have invalidated these changes as requiring notice-and-comment rulemaking, but many of these postponements go unchallenged.[13]

Although it is difficult to evaluate the effect of these memoranda on federal agencies, it appears that agencies generally comply with their instructions.  For example, in February 2002, the Government Accountability Office determined that “federal agencies delayed the effective dates for 90 of the 371 final rules that were subject to the Card memorandum” (i.e., had been published in the Federal Register but had not yet taken effect when President Bush took office), and that a majority of the rules that were not delayed were non-controversial rules that the White House had previously agreed should be issued as scheduled.[14]  Independent regulatory agencies in some cases also abide by the regulatory moratoria, although they have not delayed the effective dates of previously published rules.[15]  An agency is an “independent regulatory agency” if it is “run by principal officers appointed by the President, whom the President may not remove at will but only for cause.”[16]  In contrast to non-independent agencies (sometimes referred to as executive agencies), the President’s control over independent agencies is limited by his inability to fire the commissioners, board members, and directors that make these agencies’ final decisions, unless he has “cause” to remove them from office.  For-cause removal protections are typically understood to preclude the President from removing an agency official simply because the President disagrees with the official’s policy decisions.[17]  At the SEC, for example, five Commissioners decide whether to propose and adopt new regulations, and the President presumably lacks the ability to prevent them from doing so if he disagrees.  Likewise, if the President orders the Commissioners to repeal regulations adopted during the Obama Administration, nothing clearly requires them to obey that order.  In contrast, if the Administrator of the Environmental Protection Agency refuses to repeal a regulation that the President wants to eliminate, then the President undoubtedly has the ability to replace him or her with a new Administrator.

It is likely that President-elect Trump will direct his Chief of Staff, Reince Priebus, to issue a memorandum similar to the Card and Emanuel memoranda directing executive departments and encouraging independent regulatory agencies to refrain from promulgating any new rules, and to postpone the effective dates of rules that have been published but have not yet taken effect.

In fact, Congressional leaders are pushing for that regulatory moratorium to begin immediately.  On November 15, 2016, House Majority Leader Kevin McCarthy and 20 other House Republican leaders sent a letter to federal agencies “requesting a moratorium on passage of any pending regulations until President-elect Donald Trump’s inauguration.”[18]  The letter states that “[s]uch forbearance is necessary to afford the recently elected administration and Congress the opportunity to review and give direction concerning pending rulemakings,” and warns “[s]hould you ignore this counsel, please be aware that we will work with our colleagues to ensure that [C]ongress scrutinizes your actions—and, if appropriate, overturns them—pursuant to the Congressional Review Act.”[19]

It appears that at least one independent agency is complying with the McCarthy Letter.  On November 16, 2016, Federal Communications Commission Chairman Tom Wheeler agreed to stop all action on complex or controversial issues during the transition, announcing that the agency would suspend consideration of new rate regulations in the business data services market that were scheduled to be issued the next day.[20]  It is unclear whether other independent agencies will follow suit.

II.    The Congressional Review Act

The Congressional Review Act (“CRA” or “Act”) enables Congress to enact joint resolutions invalidating new rules adopted by federal agencies.[21]  Among other things, the Act provides for expedited procedures that enable Congress to repeal a new regulation relatively quickly.[22]  Most notably, the Senate’s ordinary procedural rules do not apply to a disapproval resolution under the CRA.[23]  Once a disapproval resolution is reported by a committee or supported in writing by 30 members, any member may move to consider the resolution, debate is limited to a maximum of ten hours, and at the end of the debate the resolution may be passed with a simple majority vote (i.e., a 60-vote supermajority to overcome a filibuster is not required).[24]  If either House adopts a disapproval resolution, then the other House votes on that version, precluding the possibility of a conference committee.[25]  If Congress passes a disapproval resolution and the President does not veto it, then the rule is void and the agency is prohibited from readopting a “substantially similar” rule absent an express authorization from Congress.[26]

A.    Background and Process 

Generally speaking, the CRA is not an effective tool for invalidating new regulations, because the President is likely to veto any resolution invalidating a rule adopted by an agency during his administration.[27]  President Obama, for example, vetoed five disapproval resolutions during the 104th Congress.[28]  In theory, a President might be more amenable to repealing a regulation adopted by an independent agency like the Securities and Exchange Commission, Federal Communications Commission, or Consumer Financial Protection Bureau because they are not subject to the President’s direction and supervision.  However, the CRA has never been used in this manner.  In fact, although the CRA was adopted in 1996, it has been used successfully only once—in 2001, when Congress passed and President George W. Bush signed a resolution invalidating an Occupational Safety and Health Administration ergonomics rule adopted during the final months of the Clinton Administration.[29]

Thus, as the invalidation of the ergonomics rule demonstrates, the CRA is most effective at the start of a new administration in which the same political party controls both houses of Congress and did not control the White House during the prior administration—i.e., in circumstances like those in which President-elect Trump and the Republican Congress will find themselves in January 2017.  It is also helpful in enabling Congress to repeal so-called “midnight regulations” adopted during the prior administration’s final months.  As discussed in further detail below, however, the Act’s timing provisions render its expedited-repeal provisions inapplicable to the vast majority of regulations adopted during the Obama Administration.

Indeed, the Act includes a series of complicated deadlines that govern when new rules take effect, when Congress may propose and adopt joint resolutions invalidating them, and when Congress may take advantage of the Act’s expedited procedures.  “Major rules”—including rules that have an annual economic effect of more than $100 million, result in “a major increase in costs or prices,” or have “significant adverse effects on” competition or employment—generally may not take effect until 60 days after an agency submits the rule to Congress or publishes the rule in the Federal Register, whichever is later.[30]  If during that period Congress enacts a joint resolution disapproving a rule, then the rule does not take effect and the agency may not adopt a “substantially similar” rule in the future unless Congress specifically authorizes it to do so.[31]

Usually, a disapproval resolution must be introduced in either the House or the Senate within 60 days after an agency submits a rule to Congress, “excluding days either House of Congress is adjourned for more than 3 days during a session of Congress.”[32]  The resolution may be adopted at any time after that, but the expedited procedures in the Senate—which preclude a filibuster, limit the length of debate on the resolution, and require a “vote on final passage” at the conclusion of the debate—become unavailable after 60 “session days beginning with” the submission of the rule to Congress or its publication.[33]  The 60-day time limit has already expired for most of the major regulations adopted during the Obama Administration.

The Act includes carryover provisions that extend the deadline for repealing rules adopted near the end of a congressional session, including the deadline for using expedited procedures in the Senate.[34]  For purposes of the Act’s disapproval provisions, after the new Congress convenes, the clock starts ticking on the “15th session day” in the Senate or the “15th legislative day” in the House.[35]  Thus, a new Congress gets a brand new 60-day period to invalidate rules subject to the carryover provision.  As a practical matter, this means that a new Congress and a new Administration have 60 days in which they may use the Act to repeal regulations adopted during the final months of the previous Administration.  The carryover provisions do not delay the effective dates of new rules, however, which means that some new rules will go into effect before a new Congress and Administration can repeal them.  If Congress repeals a rule that has already taken effect, then the rule “shall be treated as though [it] had never taken effect.”[36]

The carryover provision applies to rules that agencies submitted to Congress during the period beginning “in the case of the Senate, 60 session days,” or “in the case of the House of Representatives, 60 legislative days” before Congress adjourned its previous session.  The precise dates covered by that period depend on Congress’s schedule in a particular year.

Recently, Republicans in Congress have introduced legislation intended to strengthen the CRA.  The Midnight Rule Relief Act of 2016, which passed the House on a party-line vote on November 17, 2016, would enable Congress to repeal multiple rules in a single disapproval resolution, unlike the current version of the CRA, which requires Congress to pass a separate resolution for each rule.[37]  And the REINS Act, which passed the House in December 2015, would amend the CRA to prevent major rules from taking effect until Congress passes a joint resolution of approval.[38]

B.    Application to Obama-Era Regulations 

The Congressional Research Service has estimated that the CRA’s carryover provision—and hence the 60-day period for repealing regulations—will apply to all federal rules adopted after May 30, 2016.[39]  And Congress’s recent decision to pass a continuing resolution instead of an omnibus appropriations bill in the lame-duck session could lead it to adjourn earlier than expected, which would bring even more rules within the carryover period.[40]

According to one analysis, the next Congress could use the CRA to repeal more than 150 significant new rules.[41]  Those rules include, among others, new regulations on arbitration agreements between nursing homes and residents[42]; payment disclosures by resource-extraction companies[43]; and wastewater created by fracking.[44]  If Congress adjourns early enough in December, it may also use the Act to repeal the Department of Labor’s May 23 final rule expanding the group of employees entitled to overtime pay.[45]

As it currently stands, the CRA will enable the next Congress to use expedited procedures—including a simple majority vote in the Senate—to repeal a large number of regulations adopted during the final months of the Obama Administration.  And repeal under the Act would have the added effect of preventing agencies from readopting substantially similar rules in the future.  The Act will not, however, enable Congress to repeal regulations adopted before May 2016.

III.    Reconciliation

Budget reconciliation is a fast-track procedure by which Congress can pass legislation that affects U.S. spending.  Part of the Congressional Budget Act of 1974, reconciliation permits Congress to pass legislation without facing a filibuster in the Senate, but applies only to certain types of legislation.[46]

A.    Background and Process 

Each year, Congress prepares a budget for the federal government by adopting a budget resolution—that is, a bill adopted by both houses of Congress that sets forth the levels of spending, revenue, and debt.[47]  Because the bill is not submitted to the President for signature, the budget resolution itself lacks the force of law.

A budget resolution may include “reconciliation instructions” designed to reconcile existing law with the dictates of the budget resolution.  These instructions direct particular congressional committees to propose legislation that will help achieve the resolution’s goals, without specifying the changes that should be made.[48]  For example, the 2016 budget resolution directed five committees in the House and Senate to eliminate $1 billion in the deficit.[49]

When multiple committees are subject to reconciliation instructions, each committee submits its proposed amendments to the budget committee, which packages together and reports the amendments without substantive changes in a single, consolidated “reconciliation bill.”[50]  There are no immediate penalties if the reconciliation bill fails to satisfy the reconciliation instructions, but the committees generally satisfy them.  (If they do not, the reconciliation bill can be amended on the floor.)  Notably, the targets set by the reconciliation instructions apply only to the initial proposals from the committees, not to the final bill that results from the reconciliation process.

The procedural rules that govern consideration of reconciliation bills make a profound difference in the Senate, which – unlike the House – does not use bill-specific rules to limit debate time or structure amendments.  Most significantly, the rules restrict debate on reconciliation bills to 20 hours[51] and prohibit a filibuster, thus eliminating the need for a 60-vote supermajority to invoke cloture and proceed to a vote on final passage of the bill.  The practical effect of this provision is that reconciliation bills can pass the Senate by a simple majority.

The “Byrd rule” limits the permissible scope of a reconciliation bill in the Senate.[52]  Named for the late West Virginia Senator Robert Byrd, the rule generally provides that provisions “extraneous to the instructions to a committee” may be stricken from the reconciliation bill and may not be offered as an amendment.[53]  The Byrd rule defines “extraneous” material to include six types of provisions:  (1) provisions that do not affect the budget (unless this is due to offsetting changes to revenues and outlays); (2) provisions that increase the budget deficit, if the committee does not satisfy the reconciliation instructions; (3) provisions that are outside the jurisdiction of the relevant committee; (4) provisions that produce budgetary changes that are merely incidental to the provisions’ non-budgetary components; (5) provisions that increase the budget deficit for a year not within the scope of the budget resolution or the reconciliation bill; and (6) provisions that would make changes to Social Security programs.[54]  When an objection under the Byrd rule is raised, the Senate Parliamentarian decides the question, unless the Senate—using ordinary rules—votes to waive the objection.[55]

Once the House and Senate have agreed on their respective reconciliation bills, they work out the differences between them to develop a final bill that will be voted on by both chambers.  This process typically occurs through a conference committee consisting of members from both chambers.

B.    Examples and Implications 

Reconciliation has been used more than 20 times since 1980 to achieve results favored by both major parties.  In 2001 and 2003, for example, Congress used reconciliation to enact tax cuts proposed by President Bush; in 2010, Democrats used it to enact a portion of the Affordable Care Act.[56]  There is no requirement that reconciliation be used to decrease the deficit.

Because it precludes a filibuster in the Senate, reconciliation is an attractive tool for a congressional majority to accomplish certain economic objectives, like revising tax rates and changing mandatory spending programs.[57]  Indeed, the reconciliation process could be used by President-elect Trump and congressional Republicans to pass Trump’s tax plan,[58] to adjust spending on veterans,[59] and even to repeal some aspects of the Affordable Care Act,[60] as House Republicans voted to do earlier this year.[61]  But it is not a filibuster cure-all.  The Byrd rule sharply limits the types of provisions that may be enacted through the reconciliation process, and while the boundaries of the rule are subject to interpretation – making the Senate Parliamentarian’s role an important one – the limitations it imposes are meaningful.  Ultimately, the reconciliation process is best viewed as having the potential to secure significant changes to relatively narrow areas of U.S. law and policy.

IV.    The Nuclear Option

The “nuclear option” refers to a move by the majority party in the Senate to “[c]hang[e] the effective procedures of the Senate by establishing new precedential interpretations of existing rules” by a simple majority vote.[62]  By way of example, this can be accomplished by making a motion related to a question that is not subject to debate (and thus not subject to filibuster) and then raising a point of order reinterpreting a Senate Standing Rule, which—if it is rejected by the chair—a majority of the Senate can then vote to approve.[63]  The nuclear option is viewed by some as an “extreme” tactic, and in the past was “used only for relatively minor procedural changes,” while “major rule changes” were accomplished only by amending the rules, which requires a two-thirds majority.[64]

However, in November 2013, Senate Democrats exercised the nuclear option to reinterpret Senate rules “so that federal judicial nominees and executive-office appointments could advance to confirmation votes by a simple majority of senators, rather than the 60-vote supermajority” previously required to defeat a filibuster.[65]  The move was aimed to allow the confirmation of three Obama nominees to the U.S. Court of Appeals for the District of Columbia Circuit, whose confirmations had been blocked by Senate Republicans.[66]  Notably, this reinterpretation did not apply to Supreme Court nominations or other legislation.[67]

Senate Republicans, however, who now have a slim majority, are in a position to reinterpret the rules more expansively to require a simple majority to approve Supreme Court nominations or legislation.[68]  In other words, by “further strip[ping] filibuster rules,” Senate Republicans “could dismantle Obama’s landmark achievement, the Affordable Care Act,” or implement the Trump Administration’s deregulatory agenda “on a simple majority vote.”[69]  Whether they will do so is an open question (and the subject of much speculation), as they run the risk of making long-term changes to Senate procedures that may impact them negatively in the event the power balance in the Senate shifts.

V.    Reversing Course in Pending Regulatory Challenges

In the case of final rules that are already subject to legal challenge in federal court, whether a new administration can or is likely to opt not to defend a previous administration’s final rule depends on a number of factors.

If the agency is an independent regulatory agency, it is more difficult for a new administration to direct the agency to abandon the defense of existing regulations because, as explained above, the heads of independent regulatory agencies can only be removed “for cause.”  Independent regulatory agencies include the Board of Governors of the Federal Reserve System, the Commodity Futures Trading Commission, the Consumer Product Safety Commission, the Federal Communications Commission, the Federal Deposit Insurance Corporation, the Federal Energy Regulatory Commission, the Federal Housing Finance Agency, the Federal Maritime Commission, the Federal Trade Commission, the Interstate Commerce Commission, the Mine Enforcement Safety and Health Review Commission, the National Labor Relations Board, the Nuclear Regulatory Commission, the Occupational Safety and Health Review Commission, the Postal Regulatory Commission, the Securities and Exchange Commission, the Bureau of Consumer Financial Protection, the Office of Financial Research, Office of the Comptroller of the Currency, and any other similar agency designated by statute as a Federal independent regulatory agency or commission.[70]  However, the new heads of independent agencies can certainly decide that they do not wish to defend an existing rule challenge; agencies without independent litigating authority would need to coordinate with the Department of Justice to achieve that result.  The issue becomes more complicated for Supreme Court litigation, as distinguished from litigation in the lower courts, however, because even agencies that have a high degree of independent litigating authority must, in that forum, secure Department of Justice approval or at least the absence of any objection to proceed.[71]

If the agency is not an independent regulatory agency, a new president could direct the agency to refrain from defending a prior administration’s regulation.  The more likely scenario, however, is that the heads of agencies – independent or not – that are appointed by the new administration might ask the Department of Justice not to defend a rule, and the Department of Justice can agree or refuse.  If the Department of Justice agrees not to defend a final rule in a pending legal challenge, it could move for a voluntary remand back to the agency to reevaluate the rule.  Courts often grant federal agencies’ motions for voluntary remand because they allow the agency to correct its own errors without expending the resources of the court in reviewing a record that may be incorrect or incomplete, or in a case that may be mooted by subsequent agency action.[72]  In cases in litigation, it also is possible for a new administration to support a stay of the rule pending completion of the litigation.

Instances in which a new administration changed the government’s position in pending legal challenges include during the Bush Administration, when the Environmental Protection Agency (“EPA”) and Attorney General were directed to review Clean Air Act enforcement actions stemming from Clinton-era investigations to determine whether they should be continued.  The review resulted in the EPA dismissing enforcement actions (launched by the Clinton administration) against dozens of coal-fired power plants.[73]  Bush Administration prosecutors also changed course from the Clinton Administration in the Microsoft antitrust litigation, which reportedly resulted in the company obtaining a more favorable settlement than had been offered previously.[74]  In the case of the Obama Administration’s Clean Power Plan, Clean Water Rule, Department of Labor Overtime Rule, and Union Persuader Rule, the Trump Administration could use a similar approach and opt to move for a voluntary remand back to the agency to repeal or revise the regulations being challenged.[75]

VI.    Repealing Executive Orders and Presidential Directives and Memoranda 

In recent administrations, Presidents have increasingly turned to executive orders and presidential memoranda and directives to achieve certain legislative and regulatory priorities without the assistance of Congress or federal agencies.

A.    Executive Orders 

Executive orders are presidential directives that have the force of law when they are issued pursuant to a valid claim of constitutional or statutory authority.[76]  Unlike legislation and federal regulations, Presidents are free to revoke, modify, or supersede executive orders at any time.[77]  Indeed, new administrations often begin their terms by acting quickly to revoke previously issued orders.  In February 1993, for example, President Clinton revoked two of President George H. W. Bush’s executive orders relating to union dues and labor contracts.[78]  In February 2001, President George W. Bush issued several orders revoking orders issued by President Clinton,[79] and in February 2009, President Obama revoked several of President Bush’s executive orders.[80]

President Obama has issued 249 executive orders during his presidency.  In his 100-day action plan, President-elect Trump pledged that on his first day in office, he will “cancel every unconstitutional executive action, memorandum and order issued by President Obama” in order “to restore security and the constitutional rule of law.”[81]  While there has been much speculation about precisely which executive orders President-elect Trump will revoke, possible contenders include:

  • National Security:
    • EO 13716 (lifting certain sanctions on Iran in exchange for halting its nuclear program as part of an international agreement)[82]
    • EO 13685, 13662 (imposing sanctions on Russia relating to its actions in Ukraine and Crimea)[83]
  • Labor:
  • Energy and the Environment:
    • EO 13693 (adopting federal sustainability practices)
    • EO 13605 (setting standards for natural gas extraction and infrastructure development)[85]
    • EO 13624 (accelerating investment in industrial energy efficiency)
  • Trade:

B.    Presidential Directives, Memoranda, and Proclamations 

In addition to executive orders, past Presidents have utilized various written instruments to direct the executive branch and implement policy.[87]  These include presidential memoranda, directives, and proclamations, which generally are less formal than executive orders and need not be published in the Federal Register unless the President determines that they “have general applicability and legal effect.”[88]  Like executive orders, presidential memoranda, directives, and proclamations can be undone by new executive actions revoking the prior action.[89]

President Obama has utilized these instruments, particularly presidential memoranda, to achieve numerous policy goals.[90]  For example, in January 2013, President Obama issued three memoranda relating to gun control that directed federal law enforcement agencies to trace any firearm that is part of a federal investigation, expanded the data available to the national background check system, and instructed federal agencies to conduct research into the causes and possible solutions to gun violence.[91]  President Obama also issued a memorandum directing the Departments of Defense, Justice, and Homeland Security to conduct or sponsor research into gun safety technology.[92]  It is widely anticipated that President-elect Trump will act to revoke these and other presidential memoranda when he assumes office on January 20.

VII.    Conclusion

Each of these tools and strategies will be available to President-elect Trump and the Republican-controlled Congress in their efforts to halt or repeal regulatory actions undertaken during the Obama administration.  However, each tool is limited in certain respects, meaning that the effort to repeal President Obama’s core legislative and regulatory enactments – with the exception of Executive Orders and presidential directives and memoranda, which may be revoked immediately and unilaterally by President-elect Trump – will not be immediate and will require coordination and a multi-pronged approach.

   [1]   Memorandum from Andrew Card to the Heads and Acting Heads of Executive Departments and Agencies, 66 Fed. Reg. 7702-01 (Jan. 20, 2001, published Jan. 24, 2001) (the “Card memorandum”).

   [2]   Id.

   [3]   Id.

   [4]   Memorandum from Rahm Emanuel to the Heads and Acting Heads of Executive Departments and Agencies, 74 Fed. Reg. 4435-02 (Jan. 26, 2009) (the “Emanuel memorandum”).

   [5]   Id.

   [6]   Id.

   [7]   Id.

   [8]   Id.

   [9]   See 5 U.S.C. § 551 et seq.  The APA defines “rule making” as the “agency process for formulating, amending, or repealing a rule.”  Id. § 551(5).  The APA generally requires agencies to (1) publish a notice of proposed rulemaking in the Federal Register; (2) allow interested parties an opportunity to participate in the rulemaking process by providing “written data, views, or arguments”; and (3) publish a final rule 30 days before it becomes effective.  Id. § 553.

[10]   Id. § 553(b)(3).

[11]   Id.

[12]   See U.S. Gov’t Accountability Office, GAO-02-370R, Regulatory Review: Delay of Effective Dates of Final Rules Subject to the Administration’s January 20, 2001 Memorandum 6 & app. I (Feb. 15, 2002) (“GAO Report”).

[13]   See, e.g., Nat. Res. Def. Council v. Abraham, 355 F.3d 179, 204-06 (2d Cir. 2004) (rejecting the Department of Energy’s arguments that its notice delaying a published rule’s effective date in accordance with the Card memorandum was a procedural rule exempt from the notice-and-comment requirements, or that there was “good cause” to not comply with the notice-and-comment requirements); Envtl. Def. Fund, Inc. v. Gorsuch, 713 F.2d 802, 815-17 (D.C. Cir. 1983); Nat. Res. Def. Council v. EPA, 683 F.2d 752, 761-63 (3d Cir. 1982).

[14]   GAO Report, supra note 12, at 2-5.

[15]   Compare Securities & Exchange Commission Acting Chairman Laura S. Unger, “What’s New in the Land of Regulation?” (Mar. 2, 2001), (announcing plan to defer any rulemaking in light of the Card memorandum); with GAO Report at 4-5 (noting that none of the 30 final rules that were issued by independent regulatory agencies (the Federal Communications Commission, Nuclear Regulatory Commission, and Securities and Exchange Commission) during the period subject to the Card memorandum were delayed).

[16]   See Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 483 (2010).

[17]     See id. at 502.

[18]   Chuck Stanley, “Don’t Pass Lame-Duck Rules, House GOP Warns Agencies,” Law360 (Nov. 16, 2016),

[19]   Id.

[20]   Jenna Ebersole, “FCC Cancels Business Data Services Vote After GOP Pressure,” Law360 (Nov. 16, 2016),

[21]   See 5 U.S.C. §§ 801–808.

[22]   See id. § 802.

[23]   See id. § 802(c), (d).

[24]   See id.

[25]   Id. § 802(f).

[26]   Id. § 801(b).

[27]   See Curtis W. Copeland & Richard S. Beth, Cong. Research Serv., RL34633, Congressional Review Act: Disapproval of Rules in a Subsequent Session of Congress 1 (2008), available at

[28]   Christopher M. Davis & Richard S. Beth, Cong. Research Serv., IN10437, Agency Final Rules Submitted After May 30, 2016, May Be Subject to Disapproval in 2017 Under the Congressional Review Act 1 (2016), available at

[29]   Id. at 5–6.

[30]   5 U.S.C. §§ 801(a)(3), 804(2).

[31]   Id. § 801(b).

[32]   See id. § 802(a).

[33]   Id. § 802(d), (e).

[34]   Id. §§ 801(d), 802(e)(2).

[35]   Id.

[36]     Id. § 801(f).

[37]   Lydia Wheeler, House Passes Bill Targeting “Midnight” Obama Regs, (Nov. 17, 2016),

[38]   See Regulations from the Executive in Need of Scrutiny Act of 2015, H.R. 427, 114th Cong. (2015), available at

[39]   Davis & Beth, supra note 28, at 2.

[40]   See Russell Berman, Trump Scores His First Win in Congress, (Nov. 17, 2016),

[41]   Susan E. Dudley, Election Could Wake The Sleeping CRA Giant, (Nov. 14, 2016),

[42]   81 Fed. Reg. 68688 (Oct. 4, 2016).

[43]   81 Fed. Reg. 49360 (July 27, 2016).

[44]   81 Fed. Reg. 41845 (June 28, 2016).

[45]   81 Fed. Reg. 32391 (May 23, 2016).

[46]   2 U.S.C. §§ 601-608.

[47]   See id. § 632.

[48]   See id. § 641.

[49]   See Budget Reconciliation:  How It Will Work Under the 2016 Budget Conference Agreement, House Committee on the Budget—Democrats (July 29, 2015),

[50]   See 2 U.S.C. § 641(b).

[51]   See id. § 641(e)(2).

[52]   Id. § 644.

[53]   Id. § 644(a).

[54]   Id. § 644(b)(1)(A).

[55]   See id. § 644(e).

[56]   See Manu Raju, GOP Targets Budget Process for Tax Reform, Politico (Jan. 13, 2015),

[57]   Congress addresses discretionary spending separately through the appropriations process.

[58]   See Tax Plan, Donald J. Trump for President, (last visited Nov. 19, 2016).

[59]   See Veterans Affairs Reform, Donald J. Trump for President, (last visited Nov. 19, 2016).

[60]   See Healthcare Reform To Make America Great Again, Donald J. Trump for President, (last visited Nov. 19, 2016).

[61]   See Jennifer Haberkorn, Trump Victory Puts Obamacare Dismantling Within Reach, Politico (Nov. 9, 2016),

[62]   Richard S. Beth, Cong. Research Serv., Procedures for Considering Changes in Senate Rules 8 (Jan. 22, 2013), (“CRS Procedures Report”); see also Valerie Heitshusen, Cong. Research Serv., Majority Cloture for Nominations: Implications and the ‘Nuclear’ Proceedings 1 (Dec. 6, 2013),“CRS Nominations Report”).

[63]   See CRS Nominations Report, supra note 62, at 8-9.

[64]   Paul Kane, Reid, Democrats trigger ‘nuclear’ option; eliminate most filibusters on nominees, Wash. Post (Nov. 21, 2013),; see also Senate Standing Rule XXII (requiring two-thirds majority for amendment of Senate Standing Rules); CRS Procedures Report, supra note 62, at 2-3 (describing process for changes in Senate Standing Rules).

[65]   Kane, supra note 64; see also CRS Nominations Report, supra note 62, at 4-5.  Note that the Senate “did not change the text of Rule XII of the [Senate] Standing Rules,” but rather “established a new precedent by which it reinterpreted the provisions of Rule XXII to require only a simple majority to invoke cloture on most nominations.”  CRS Nominations Report, supra note 62, at 4-5; see also id. at 8-9 (providing a detailed discussion of the procedures the Senate majority used to set new precedent in relation to consideration of nominations).

[66]   Kane, supra note 64.

[67]   Kane, supra note 64.

[68]   Karound Demirjian, President Trump’s Cabinet picks are likely to be easily confirmed.  That’s because of Senate Democrats, Wash. Post (Nov. 18, 2016),

[69]   Kane, supra note 64.

[70]     44 U.S.C. § 3502(5).

[71]     See, e.g., 12 U.S.C. § 5564(e) (“Appearance Before the Supreme Court”) (“The [CFPB] may represent itself in its own name before the Supreme Court of the United States, provided that the Bureau makes a written request to the Attorney General within the 10-day period which begins on the date of entry of the judgment which would permit any party to file a petition for writ of certiorari, and the Attorney General concurs with such request or fails to take action within 60 days of the request of the Bureau.”).

[72]     See, e.g., Ethyl Corp v. Browner, 989 F.2d 522, 524 (D.C. Cir. 1993); SKF USA Inc. v. United States, 254 F.3d 1022, 1029 (Fed. Cir. 2001); Citizens Against Pellissippi Parkway Extension, Inc. v. Mineta, 375 F.3d 412, 417 (6th Cir. 2004); Sierra Club v. Van Antwerp, 560 F. Supp. 2d 21, 24-25 (D.D.C. 2008).

[73]     Elizabeth Shogren, EPA Drops Its Cases Against Dozens of Alleged Polluters, N.Y. Times, Nov. 6, 2003.

[74]     D. Ian Hopper, New Administration Takes Less Fractured View of Microsoft, AP, Sept. 7, 2001, available at; Jonathan Krim, Circumstance Had Role in U.S.-Microsoft Deal, Wash. Post, Nov. 3, 2001, at A21.

[75]   Tim Devaney, 14 Obama regs Trump could undo, (Nov. 12, 2016),

[76]     Vivian S. Chu & Todd Garvey, Cong. Research Serv., Executive Orders: Issuance, Modification, and Revocation 1-2 n.3 (Apr. 16, 2014), (quoting Staff of House Comm. on Gov’t Operations, 85th Cong., 1st Sess., Executive Orders and Proclamations: A Study of A Use of Presidential Powers (Comm. Print 1957)); see also John Contrubis, Cong. Research Serv., Executive Orders and Proclamations 2 & n.4 (Mar. 9, 1999),

[77]     Chu & Garvey, supra note 76, at 7.

[78]     Exec. Order No. 12836 (Feb. 1, 1993) (revoking Exec. Order No. 12818 (Oct. 23, 1992) & Exec. Order 12800 (Apr. 13, 1992)).

[79]     Chu & Garvey, supra note 76, at 7 n.46 (citing Exec. Orders Nos. 13201-04, 66 Fed. Reg. 11221, 11225, 11227- 28 (Feb. 17, 2001) (revoking Exec. Order No. 12836, 58 Fed. Reg. 7045 (Feb. 1, 1993); Exec. Order No. 12871, 58 Fed. Reg. 52201 (Oct. 1, 1993); Exec. Order No. 12933, 59 Fed. Reg. 53559 (Oct. 20, 1994)).

[80]     Id. (citing Exec. Order No. 13496, 74 Fed. Reg. 6107 (Jan. 30, 2009) (revoking Exec. Order No. 13201); Exec. Order No. 13502, 74 Fed. Reg. 6985 (Feb. 6, 2009) (revoking Exec. Order No. 13202); Exec. Order No. 13495, 74 Fed. Reg. 6103 (Jan. 30, 2009) (revoking Exec. Order No. 13204)).

[81]     Donald Trump’s Contract with the American Voter, Donald J. Trump for President (Oct. 23, 2016),

[82]     See Zahraa Alkhalisi, “Trump could hit Iran with sanctions – but Europe would scream,” CNN Money (Nov. 10, 2016),; see also Thomas Erdbrink, “Trump, Though Critical of Nuclear Deal, Could Offer Opportunities for Iran,” N.Y. Times (Nov. 20, 2016),

[83]     See Owen Matthews, “Donald Trump Can Either Continue the Shadow War with Vladimir Putin or End Sanctions,” Newsweek (Nov. 16, 2016),

[84]     See Timothy Aeppel & Daniel Wiessner, “Unions brace for pro-business shift in labor policy under Trump,” Reuters (Nov. 9, 2016),

[85]     See Donald Trump’s Contract with the American Voter, supra note 81 (pledging to “lift the restrictions on the production of $50 trillion dollars’ worth of job-producing American energy reserves, including shale, oil, natural gas and clean coal” on his first day in office).

[86]     See id. (pledging to “announce [his] intention to renegotiate NAFTA or withdraw from the deal” on his first day in office).

[87]     Chu & Garvey, supra note 76, at 1.

[88]     See id. at 1-2 & n.7 (citing 44 U.S.C. § 1505).

[89]     Contrubis, supra note 76, at 19.

[90]     Gregory Korte, “Obama issues ‘executive orders by another name,'” USA Today (Dec. 17, 2014),

[91]     Id. (citing Presidential Memorandum, Tracing of Firearms in Connection with Criminal Investigations, 78 Fed. Reg. 4301 (Jan. 16, 2013); Presidential Memorandum, Improving Availability of Relevant Executive Branch Records to the National Instant Criminal Background Check System, 78 Fed. Reg. 4297 (Jan. 16, 2013); Presidential Memorandum, Engaging in Public Health Research on the Causes and Prevention of Gun Violence, 78 Fed. Reg. 4295 (Jan. 16, 2013)).

[92]     The White House, Office of the Press Secretary, Fact Sheet: New Executive Actions to Reduce Gun Violence and Make Our Communities Safer (Jan. 4, 2016),; Presidential Memorandum, Promoting Smart Gun Technology, 81 Fed. Reg. 719 (Jan. 4, 2016).

The following Gibson Dunn lawyers assisted in the preparation of this client update:  Michael Bopp, Eugene Scalia, Helgi Walker, Ashley Boizelle, Russell Balikian, Naima Farrell and Matt Gregory.

Gibson Dunn’s lawyers are available to assist in addressing any questions you may have regarding these developments.  Please contact the Gibson Dunn lawyer with whom you usually work, any member of the firm’s Public Policy or Administrative Law and Regulatory practice groups, or the following authors in the firm’s Washington, D.C. office:

Michael D. Bopp – Chair, Public Policy Practice (+1 202-955-8256, [email protected])
Eugene Scalia – Co-Chair, Administrative Law & Regulatory Practice (+1 202-955-8206, [email protected])
Helgi C. WalkerCo-Chair, Administrative Law & Regulatory Practice (+1 202-887-3599, [email protected])
Ashley S. Boizelle – Member, Administrative Law & Regulatory Practice (+1 202-887-3635, [email protected])

© 2016 Gibson, Dunn & Crutcher LLP

Attorney Advertising:  The enclosed materials have been prepared for general informational purposes only and are not intended as legal advice.