President Trump Executive Order on Supervision of ‘Independent’ Agencies
Amidst a blitz of executive action, on February 18, President Donald Trump signed an executive order entitled “Ensuring Accountability for all Agencies” (Executive Order) exerting more direct control over “independent regulatory agencies.” President Trump cited the “often-considerable authority” of these independent regulatory agencies as the rationale for needing this additional supervision and control. Furthermore, due to perceived congressional inaction, the Executive Order, coupled with previous ones,[1] forms another part of President Trump’s deregulatory agenda and his efforts to have the executive speak with one voice.
Among other things, the Executive Order requires independent regulatory agencies to submit draft regulations and strategic plans to the president and the Office of Management and Budget (OMB) for review. Additionally, OMB will review independent regulatory agencies’ actions for consistency with the president’s policies and these agencies must establish a White House Liaison to presumably report to the president, although the duties of this position are not defined.
This post sets forth more details on the requirements of the Executive Order, highlights its potential impacts for independent agency regulation and discusses whether the Executive Order could be subject to challenge.
Requirements of the Executive Order
The Executive Order requires all independent regulatory agencies to submit for review all proposed and final significant regulatory actions to the Office of Information and Regulatory Affairs (OIRA) within OMB before publication in the Federal Register. Broadening agencies subjected to regulatory review, the Executive Order references the definition of “independent regulatory agency” from 44 U.S.C. § 3502(5), which includes the Commodity Futures Trading Commission (CFTC) and Securities and Exchange Commission (SEC), among 20 total agencies and a catchall provision to include any other similar agency designated by statute as a federal independent agency or commission.[2] There is a carveout for the Board of Governors of the Federal Reserve System and the Federal Open Market Committee regarding actions related to monetary policy. OIRA currently engages in a limited review of proposed and final rules by independent regulatory agencies. The Executive Order expands the scope of OIRA’s review.
OMB Establishment of Performance Standards and Management Objectives
The Executive Order empowers the director of OMB to provide guidance on the Executive Order’s implementation and how independent regulatory agencies should structure their submissions. The deadline for these agencies to submit their regulatory actions is either 60 days from the Executive Order or upon completion of the OMB guidance.
OMB Review of Independent Regulatory Agencies’ Activities and Spending
Pursuant to the Executive Order, OMB will continually review independent regulatory agencies’ obligations for consistency with the president’s policies and priorities. The review process will enable the president to make possible adjustments to agency operations and regulatory actions. For example, OMB review could be used to steer independent regulatory agencies to prohibit or limit spending on particular activities, functions, or projects to the extent that such prohibition or limitation is consistent with US law.
Additional Coordination and Consultation With the Executive Office of the President
The Executive Order requires independent regulatory agency chairpersons to regularly consult with and coordinate policies and priorities with OMB directors, the White House Domestic Policy Council and the White House National Economic Council. There is no further detail on how often these meetings are expected to occur. Additionally, the Executive Order requires each agency to have a White House Liaison, who will presumably shepherd the communications between the agency and the president.
This requirement is a divergence from precedent as no longer can chairpersons set their own strategic plans; they must submit their agency strategic plans developed pursuant to the Government Performance and Results Act of 1993 to the director of OMB for clearance prior to finalization.
Centralizing All Executive Branch Interpretations of the Law
Under Section 7 of the Executive Order, the president and attorney general will set forth all official executive branch interpretations of the law. Executive branch employees including agency general counsel, when acting in their official capacity, are prohibited from presenting any legal interpretation as the official position of the United States if it conflicts with the legal opinions of the president or the attorney general. This restriction applies to all actions, including issuing regulations, providing guidance and advocating positions in litigation.
This level of coordination and determination already occurs when, for example, a case is pending before the Supreme Court and the Department of Justice seeks the views of independent regulatory agencies in determining the government’s litigation position before the court. The Executive Order suggests that such coordination will potentially expand to include agency positions taken before district and appellate courts, as well as legal positions taken as part of an agency’s rulemaking. It may also slow the pace of regulatory and enforcement action of independent regulatory agencies to account for the additional time to engage with other parts of the executive.
Possible Court Challenge?
Congressional statutes grant the president authority to issue executive orders to help them implement federal laws. Article II of the Constitution prohibits the president from making laws; the president has authority only to enforce and implement laws. When an executive order is written too broadly, it can be found, in certain situations, to be seen as the president exercising legislative powers that are strictly reserved for Congress.
Federal courts have the authority to strike down presidential executive orders for two reasons: (1) where the president lacks authority to issue the order; and (2) the order is prima facie unconstitutional in substance. In the past, executive orders have been challenged via statutory and constitutional grounds.[3] However, federal courts have been cautious to overstep into the powers of another branch.
The Executive Order’s directive regarding independent regulatory agencies is unprecedented because past presidents have explicitly excluded these agencies from similar oversight. For example, President Reagan’s Executive Order 12291 and President Clinton’s Executive Order 12866 both required regulatory review for certain agencies but notably exempted independent regulatory agencies from most of these mandates.[4]
Impact on Independent Regulatory Agencies
Historically, even though the president appoints the commissioners, the CFTC and SEC have operated with some degree of autonomy from the president. This aligns with how independent regulatory agencies were conceived by Congress; to have some protection from direct presidential control. The Executive Order seeks to more directly influence the regulatory agenda of independent agencies.
Indeed, President Trump is asserting broad powers to remove Senate-confirmed members of multimember boards. President Trump has removed members of the National Labor Relations Board (NLRB) and the Equal Employment Opportunity Commission (EEOC). The Supreme Court has recently found that other limitations on the president’s removal power violate the Constitution. In a 2020 case, Seila Law LLC v. CFPB, the Court found that the limitations on the president’s ability to remove the director of the Consumer Financial Protection Bureau (CFPB) violated the Constitution’s separation of powers. In that case, the Court did not explicitly address removal protections for multimember commissions like the CFTC and SEC. Although last year the Supreme Court denied certiorari on a case regarding the Consumer Product Safety Commission (CPSC) that raised these issues, it may get another opportunity based on President Trump’s recent actions. The outcome of such a case could have a significant impact on the president’s ability to directly control independent regulatory agencies.
In the meantime, the Executive Order and the president’s agenda may increase the president’s influence on enforcement actions and investigations, as independent regulatory agencies could give additional weight to broader presidential policies in their decisions to prosecute civil wrongdoing or pursue investigations. This new dynamic may prompt registrants to closely monitor new executive orders to anticipate shifts in enforcement priorities.
As independent regulatory agencies oversee self-regulatory organizations (SROs), such as the SEC and Financial Industry Regulatory Authority (FINRA), changes in agency priorities could affect SRO operations. Although SROs typically focus on technical and operational matters, an independent regulatory agency’s shift to align its policies with the president’s agenda may introduce political considerations into market regulations that were previously apolitical.
An independent regulatory agency’s programs and initiatives that are misaligned with the president’s policies face additional risk under the Executive Order for reduced funding or elimination. As these activities become more visible to the Trump administration, they may face increased scrutiny, potentially impacting budgeting and long-term planning.
Conclusion
The Executive Order’s purpose of expanding presidential oversight over independent regulatory agencies raises several legal questions. The Executive Order contemplates additional interaction between independent regulatory agencies and OMB, with an increased emphasis on implementing the president’s priorities. The Executive Order, along with the anticipated litigation over the president’s removal power, may serve to reshape the relationship between independent regulatory agencies and the president.
Footnotes
[1] UNLEASHING PROSPERITY THROUGH DEREGULATION, The White House (Jan. 31, 2025), https://www.whitehouse.gov/fact-sheets/2025/01/fact-sheet-president-donald-j-trump-launches-massive-10-to-1-deregulation-initiative/.
[2] “Independent regulatory agency” includes the following: 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. 44 U.S.C. § 3502(5).
[3] Federal Judicial Center, Judicial Review of Executive Orders, Fed. Jud. Ctr., https://www.fjc.gov/history/administration/judicial-review-executive-orders (last visited Feb. 23, 2025).
[4] President Reagan’s Executive Order 12291 authorized OIRA to review regulatory actions of Cabinet departments and independent agencies, excluding independent regulatory agencies, requiring cost-benefit analyses for major rules. President Clinton’s Executive Order 12866, replacing it in 1993, maintained the exclusion of independent regulatory agencies and narrowed OIRA’s review to specific rule types. See Exec. Order No. 12,291, 3 C.F.R. 127 (1981), reprinted as amended in 5 U.S.C. § 601 app. at 431 (1982) and Exec. Order No. 12,866, 3 C.F.R. 638 (1994), reprinted as amended in 5 U.S.C. § 601 app. at 557 (1994).
Red State AGs Sue New York State in Challenge to Climate Change Superfund Act
In December 2024, the State of New York enacted the “Climate Change Superfund Act,” which would impose retroactive fines on fossil fuel producers for greenhouse gas emissions that contribute to climate change. (New York was actually the second state to enact such a law; Vermont had implemented a similar law earlier in the year, and a number of other liberal states are contemplating such laws.) This law has now been challenged in court by a coalition of attorneys-general from conservative states, led by Texas (the other states are Alabama, Arkansas, Georgia, Idaho, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, West Virginia, and Wyoming), who argue that this law is unconstitutional because, among other things, it infringes upon issues that are solely within the purview of federal law (e.g., the Clean Air Act), and not subject to regulation by individual states.
Irrespective of the legal merits of either New York’s law or the attorneys-generals’ challenge, this development is nonetheless significant as demonstrating–yet again–the increasing gulf between blue states and red states with respect to state policy concerning climate change and related issues. There are now a number of separate legal fronts where opposing coalitions of states are ranged against one another, each seeking to implement its preferred policy. And this increasing divergence among the states has rendered the regulatory landscape even more complex for companies that operate nationally, with a geographic footprint on both sides of the divide. In the absence of a national consensus developing over climate change policy, it seems unlikely that even coherent and powerful federal action could completely overcome this divide–to the detriment of any company or individual seeking to navigate through these turbulent waters.
Texas Attorney General Ken Paxton and a coalition of 21 attorneys general have filed a federal lawsuit challenging New York’s new law that would force fossil-fuel companies to pay billions for emitting greenhouse gas. And some experts predict similar litigation against other states. According to the lawsuit, the New York law titled the Climate Change Superfund Act would retroactively fine coal, natural gas and oil producers $75 billion for emissions. New York Gov. Kathy Hochul signed it into law on Dec. 26, 2024, with funds due in 2026.
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Court Temporarily Hits the Brakes on EO 14173 Ending Illegal Discrimination: What Employers Should Know
Big Picture
On February 21, 2025, a federal judge in the District Court of Maryland granted a temporary injunction blocking portions of President Trump’s Executive Orders “Ending Illegal Discrimination and Restoring Merit Based Opportunity” (“14173”) and “Ending Radical and Wasteful Government DEI Programs” (“14151”) (collectively the “EOs”). To learn more about each EO’s directives read Blank Rome’s previous coverage on 14173 here and 14151 here. This is a temporary nationwide ban on certain portions of the EOs.
After pointing out that the Trump Administration has declared “DEI to be henceforth illegal”, the Court found the EOs do not “define any of the operative terms” such as “illegal DEI”, “equity-related”, “promoting DEI”, or “illegal discrimination or preferences”. This vagueness fails to provide companies and organizations with proper notice as to what types of programs are prohibited. Further, the Court found that the EOs likely violate the First Amendment by expressly threatening “the expression of views supportive of equity, diversity and inclusion.” This is a nationwide ban.
Background: EOs Have Government Contract Implications & Implicate the Private Sector
Among other provisions, EO 14173 requires that all federal contracts and/or grant awards contain a term where the contractor/grantee must agree its “compliance in all respects with all applicable Federal anti-discrimination laws” is material to the government’s payment decisions for purposes of the False Claims Act (“FCA”) (the “Certification Provision”).
EO 14173 also applies pressure to the private sector, directing the Attorney General (“AG”), in consultation with heads of federal agencies, to prepare a report by May 20, 2025, containing strategies on how to encourage the private sector to end “illegal discrimination” by, among other things, creating a “plan of specific steps or measures to deter DEI programs or principles” including the identification of “up to nine potential civil compliance investigations of publicly traded corporations, large non-profit corporations or associations, foundations with assets of 500 million dollars or more, State and local bar and medical associations, and institutions of higher education with endowments over 1 billion dollars” (the “Enforcement Threat Provision”).
Additionally, relevant to the Court’s decision, EO 14151 directs federal agencies to “within sixty days of this order … terminate, to the maximum extent allowed by law, all … ‘equity-related’ grants or contracts” (the “Termination Provision”).
Basis for the Legal Challenge: DEI Advocates Challenge EOs
On February 3, 2025, various diversity, equity, and inclusion (“DEI”) advocates moved to preliminarily enjoin the enforcement of both EOs on, among other grounds, the following:
Violation of the Fifth Amendment, arguing the EOs are unconstitutionally vague as they do not define key terms such as what “illegal” DEI or “equity-related” is thereby not providing proper notice to employers; and
Violation of the First Amendment, arguing the threat of civil compliance investigations and new government contractor certifications chill ability to freely discuss important DEI-related topics.
Court Enjoins Enforcement of Termination & Certification Provisions for Government Contractors
After conducting a hearing on February 19, 2025, the Court partially agreed with Plaintiffs and preliminarily enjoined the Administration from enforcing portions of the EOs, specifically halting the following actions as it relates to government contractors:
Terminating any awards, contracts, or obligations on the basis of being “equity-related” under the Termination Provision;
Requiring any grantee or contractor to make any “certification” or other representation pursuant to the Certification Provision; and
Bringing any FCA enforcement action, including but not limited to any enforcement action premised on any “certification” made pursuant to the Certification Provision.
Court Enjoins Enforcement Through Civil Compliance Investigations for Private Sector
As it relates to the private sector, the President’s administration is blocked from bringing any enforcement action pursuant to the Enforcement Threat Provision. Importantly, the Court specified that although enforcement is blocked, the AG may continue to prepare their report including “[a] plan of specific steps or measures to deter DEI programs or principles. . .that constitute illegal discrimination or preferences.”
Notably the Court’s decision does not block similar provisions in EO 14173 directing the AG to include additional information in their report, namely, “key sectors of concern within each agency’s jurisdiction”; “litigation that would be potentially appropriate for federal lawsuits, intervention, or statements of interest”; and the “most egregious and discriminatory DEI practitioners in each sector of concern.”
Next Steps for Employers
While this is an early win for proponents of DEI initiatives, government enforcement plans have not been blocked and new lawsuits are being filed against companies challenging their DEI programs daily. Most recently, the state of Missouri filed suit against multinational chain of coffeehouses for their “illegal DEI” practices (including minority-based mentorship programs and diversity goals) and the state of Florida filed a class action lawsuit against a large retail corporation alleging the company misled investors about the risks related to their LGBTQ Pride campaign.
Government contractors, organizations receiving federal funding, and private sector employers may have a slight temporary reprieve but should consult with their legal counsel now regarding steps to take in light of the Court’s decision, as this decision is likely to be appealed by the administration. Further, it is important to understand the AG’s ability to continue preparing their report encouraging the private sector to end DEI initiatives and enforcement through means outside of the Enforcement Threat Provision currently being fair game.
If not done so already, all companies should conduct a privileged assessment of current DEI statements, policies, and initiatives to ensure compliance with federal laws. All employers should remain diligent in their review given that the Court’s decision is a temporary pause on enforcement and this outcome, along with the outcomes of additional pending lawsuits filed, and those sure to be filed, are developing.
25 Percent Tariffs on Imported Automobiles?
his week, President Donald Trump made remarks during a press conference indicating that he was planning to impose tariffs “in the neighborhood of 25 percent” on imported automobiles, perhaps as early as April 2. It was unclear whether the targeted automobile tariffs are related to the so-called “reciprocal tariffs” that are being studied by the government across all products from all countries.
During this week’s press conference, the president expressed his understanding that the European Union has already lowered its tariffs on imported automobiles from 10 percent to 2.5 percent. However, the EU has released an FAQ indicating that it has made no such concession, and pointing out that the U.S. imposes a 25 percent tariff on pickup trucks.
The auto tariff referenced in this week’s press conference is reminiscent of the findings of the Section 232 investigation of imported automobiles performed during President Trump’s first administration. Although that investigation concluded that imports of automobiles harmed U.S. national security, the recommended 25-35 percent tariff was never imposed.
Car plants are being canceled in other locations now because they want to build them here. And you read about a couple — not that I want to mention names or anything — but you read about a couple of big ones in Mexico just got canceled because they’re going to be building them in the United States. And that’s very simply because of what we’re doing with respect to taxes, tariffs, and incentives.
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NLRB’s Acting General Counsel Rescinds Biden-Era Labor Policies
On February 14, 2025, William Cowen (“Cowen”), the Acting General Counsel for the National Labor Relations Board (the “NLRB” or the “Board”) issued a memorandum rescinding more than a dozen policy memoranda issued by his predecessor, Jennifer Abruzzo (“Abruzzo”), who served as the NLRB’s General Counsel during the Biden administration until President Trump terminated her from the position on January 27, 2025. Citing a growing and unsustainable backlog of cases as the basis, Cowen rescinded policy and guidance memoranda that were controversial when issued, specifically including (1) GC 23-08, concerning non-compete agreements in employment contracts and severance agreements, and (2) GC 25-01, concerning “stay-or-pay” agreements requiring employees to pay back certain benefits provided by employers when employees separated from employment prior to the expiration of a defined period.
Background: General Counsel Memoranda
General Counsel memoranda are nonbinding policy guidance issued directly by the NLRB’s General Counsel or, as in this case, Acting General Counsel. The memoranda are generally directed to the NLRB’s regional field offices, and they are used as a tool to instruct the Board’s field staff about the General Counsel’s policy and enforcement goals.
During Abruzzo’s tenure as General Counsel, she issued numerous such memoranda that were seen as expanding previous interpretations of federal labor law to effectuate Abruzzo’s pro-union policy goals. The guidance contained in these memoranda, for example, limited employers’ abilities to lawfully communicate with employees, endorsed a more expansive definition of protected, concerted activity, and called for more aggressive enforcement of the National Labor Relations Act (the “NLRA”) against employers.
Cowen’s GC Memorandum 25-05
The memorandum Cowen issued on February 14, 2025—GC 25-05—explained that the Board has “seen [its] backlog of cases grow to the point where it is no longer sustainable.” In light of this unsustainable backlog of cases, Cowen conducted a review of active General Counsel memoranda and determined that numerous rescissions were warranted.
Among the key rescinded memoranda for employers were GC 23-08 and 25-01. GC 23-08 declared that “[e]xcept in limited circumstances . . . the proffer, maintenance, and enforcement” of non-compete agreements in both employment contracts and severance agreements violate the NLRA because such agreements unlawfully interfere with employees’ exercise of Section 7 rights. GC 25-01 similarly declared that “stay-or-pay” provisions—agreements where employees are asked to repay their employer certain funds if they separate from employment prior to the expiration of a designated stay period—“infringe on employees’ Section 7 rights in many of the same ways that non-compete agreements do and . . . therefore also violate Section 8(a)(1) of the Act unless narrowly tailored to minimize that infringement.”
In addition to these memoranda, Cowen’s memorandum also rescinded Abruzzo’s guidance in GC 23-05, concerning the interpretation of the Board’s decision in McLaren Macomb, 372 NLRB No. 58 (2023). As previously reported, Abruzzo’s GC 23-05 endorsed an expansive interpretation of McLaren Macomb to broadly prohibit non-disparagement and confidentiality provisions presented to employees in severance agreements. Cowen’s memorandum also rescinds Abruzzo’s guidance regarding whether college athletes should be considered employees, universities’ disclosure obligations under the NLRA, mandatory work meetings to discuss labor issues, and remedies available for violations of the NLRA, amongst other topics.
Practical Impact and Takeaways
Cowen’s memorandum is not binding law, and it does not reverse the current application of the recent decisions, such as McLaren Macomb, that it calls into question. If formal reversal of these decisions were to occur, it would likely take some time, particularly considering that the NLRB currently lacks a quorum following President Trump’s termination of Board Member Wilcox.
However, GC 25-05 is further evidence the new Administration intends to effect significant policy changes for the NLRB, including a shift in prosecutorial action away from certain of the Abruzzo-led NLRB’s targets over the last four years. These signaled policy changes may inform employers in analyzing the risk associated with the use of previously scrutinized provisions in employment contracts and severance agreements. Further, employers currently involved in matters pending before regional offices of the NLRB may see increased efforts to resolve the matters, including offers of settlement involving less onerous terms than those previously sought by the Board.
Employers should be cognizant and monitor closely for further updates in the near future, including other actions that signal the agency’s enforcement goals and priorities.
Multiple States Propose Bans on Food Additives and “Ultra-Processed Foods”
Since the start of February, at least four states have introduced or advanced proposals to ban various food chemicals and address concerns over the use of ultra-processed foods (UPFs). New food chemical bans have surfaced in recent days in Florida, Arizona, and Utah, while lawmakers in Illinois advanced a food chemicals ban that has long raised concerns for industry stakeholders.
The Illinois chemicals ban (SB 93) would prohibit brominated vegetable oil, potassium bromate, propylparaben, and Red No. 3, effective in 2028.
Florida has been one of the latest states to introduce a food chemical ban. If passed, the bill (SB 560) would prohibit food companies from manufacturing, selling or distributing food that contains nine food chemicals, including potassium bromate, propylparaben, Blue No. 1, Yellow No. 5, benzidine, butylated hydroxyanisole (BHA) and butylated hydroxytoluene (BHT).
In Arizona, Republican Sen. Leo Biasiucci said he was inspired by the MAHA movement to introduce HB 2164, which would ban any food that contains eleven chemicals: potassium bromate, propylparaben, titanium dioxide, brominated vegetable oil, Yellow No. 5 and 6, Blue No. 1 and 2, Green No. 3, and Red No. 3 and 40. The bill would also ban UPFs in school meals – however, the definition for UPFs included in this bill categorizes these as foods that contain any of the eleven chemicals set to be banned by the proposal. This definition differs significantly from other approaches, by focusing more on specific additives, rather than the degree of processing.
Utah has followed a similar approach to Arizona with HB 402. If passed, this bill would ban certain ultra-processed foods from being served at schools. UPFs are defined here as foods containing one or more of the following ingredients: brominated vegetable oil, potassium bromate, propylparaben, titanium dioxide, Blue No.1 and 2, Green No. 3, Red No. 3 and 40, and Yellow No. 5 and 6.
Québec’s Bold Proposal: Empowering Authorities to Safeguard Public Welfare During Work Stoppages
On February 19, 2025, Québec Minister of Labour Jean Boulet introduced Bill 89, which would amend the Québec Labour Code and related provisions to safeguard the well-being of the population by maintaining necessary services during strikes or lock-outs. According to the bill, the goal is to prevent “disproportionat[e]” impacts on “social, economic or environmental security,” especially for vulnerable populations.
The legislative changes would apply to all employers and unions under provincial jurisdiction in Québec, with the exception of the health and public service sectors, which already have specific provisions to maintain a wide range of services.
Quick Hits
On February 19, 2025, Québec Minister of Labour Jean Boulet introduced legislation that would ensure necessary services are maintained during strikes or lock-outs to protect public well-being.
The bill would empower the government and the Administrative Labour Tribunal to ensure necessary services are maintained during work stoppages, balancing the right to strike with public welfare.
The bill would allow the minister of labour to refer disputes to arbitration if mediation has failed and a strike or lock-out poses or threatens serious harm to the population.
In recent years, work stoppages have significantly affected Québec citizens. Consequently, Bill 89 proposes solutions to balance the needs of the public with the respect to the right to strike or lock out.
Proposed Legislative Changes
The proposed changes would empower the government to “designate, by order, a certified association and an employer [for whom] the Administrative Labour Tribunal may determine whether services ensuring the well-being of the population must be maintained in the event of a strike or lock-out.” The order would remain valid “until the filing of a collective agreement or [a] document in lieu thereof” (e.g., an arbitration award).
Once designated by the government, and at the request of one of the parties (i.e., the employer or the union), the Tribunal would have the authority to determine whether necessary services must be maintained during a work stoppage. The parties would have the opportunity to submit their respective positions before the Tribunal makes a decision.
If the Tribunal renders a decision requiring that services be maintained, the designated parties would be required to negotiate which services would be maintained within fifteen days of receiving notification. The Tribunal would then assess whether the agreement was sufficient to protect the well-being of the population. In the event the parties cannot reach an agreement, the Tribunal would have the authority to determine which services are necessary.
The bill further specifies that if a strike or lock-out is in progress, despite a decision from the Tribunal ordering the maintenance of services, the strike or lock-out may continue unless otherwise ordered by the Tribunal.
Additionally, if a strike or lock-out causes or threatens to cause serious or irreparable harm to the population and mediation efforts fail, the minister of labour can refer the dispute to arbitration, effectively ending the ongoing strike or lock-out and establishing arbitration procedures.
Practical Considerations
The legal implications of Bill 89 are significant. The bill would enhance the roles of the government and the Tribunal in managing labour disputes, ensuring that necessary services are maintained to prevent “disproportionat[e]” impacts on “social, economic or environmental security.” The legislation seeks to balance the right to strike with the need to protect public welfare, particularly for vulnerable populations. The labour minister’s authority to refer disputes to arbitration emphasizes the importance of resolving disputes without prolonged strikes or lock-outs.
It is important to note that Bill 89 does not define the term “disproportionate impacts on social, economic, or environmental security.” This language can be interpreted broadly, which could have far-reaching implications. Unions are likely to oppose Bill 89 and will likely participate in consultation periods before the National Assembly.
The proposed changes also include the addition of penal provisions to ensure compliance with necessary service agreements and Tribunal decisions in Article 146.2 of the Québec Labour Code.
Bill 89 deserves close attention, as it may affect future negotiations. If adopted, it is anticipated that unions may challenge the constitutionality of the law on the grounds of freedom of association.
Michigan Overhauls Paid Sick Leave and Minimum Wage Laws
On February 21, 2025, Governor Gretchen Whitmer signed into law two bills amending the state’s Wage Act and Earned Sick Time Act (ESTA).
As we previously explained, absent those amendments, February 21 would have been the effective date for those laws as ordered by the Michigan Supreme Court. Below, we share highlights of the new bills as preliminary guidance.
Changes to the Wage Act
Steeper Minimum Wage Hikes, Faster
Senate Bill 8 (SB 8), the bill that amended the Wage Act, retains the $12.48 per hour minimum wage rate set to take effect February 21. Thereafter, minimum wage will rise again on January 1, 2026 (and on the first of the year annually thereafter) to $13.73, a higher wage rate than the originally scheduled hourly rate of $13.29. The 2027 increase will also be larger than scheduled, jumping to an hourly rate of $15.00.
In short, minimum wage earners will see bigger hikes, sooner, under SB 8. The main takeaway for Michigan employers concerned about compliance as of February 21 is that the statewide minimum wage as of that date is $12.48 per hour.
Smaller Tip Credit Reductions, No Abolishment, Plus Enforcement
SB 8 will not gradually phase out tip credits, which would have occurred under the state Supreme Court Order. Instead, the proportional maximum credit will diminish by 2% annually through 2031, when a tipped worker’s minimum wage would equal 50% of the full minimum wage.
Effective today, employers must ensure that tipped workers receive a minimum rate of $4.74, which is 38% of the full minimum wage. Note that this is meaningfully lower than what the Order required ($6.49 per hour, or 48% of the full minimum wage).
SB 8 also adds a maximum civil fine of $2,500 on employers who fail to comply with the minimum wage scheme for tipped workers.
Changes to ESTA
House Bill 4002 (HB 4002), the bill that amended ESTA, significantly modified the Supreme Court’s Order. The key changes from the Order are as follows:
A revised definition of “small business” from “fewer than 10” to “10 or fewer” employees, along with a delay of mandatory paid earned sick time accrual and usage for small business employees until October 1, 2025.
Excluding the following individuals from paid earned sick time eligibility: trainees or interns and youth employees, as well as employees who schedule their own working hours and are not subject to disciplinary action if they do not schedule a minimum number of working hours.
Clarification that paid earned sick time does not accrue while an employee is taking paid time off, and that employers may cap usage and carryover of accrued paid leave at 72 hours per year, or at 40 hours per year if they are a small business.
Express permission to frontload paid earned sick time, including detailed instructions about how to frontload part-time employees’ leave and waiving requirements to track accruals, carryover unused time or pay out the value of unused time at the end of the year for frontloading employers.
Changes to language regarding an employee’s request for an “unforeseeable” need to use paid earned sick time, including requiring employee to give notice as soon as “practicable” or in accordance with the employer’s policy related to requesting or using sick time or leave (assuming the employer has provided a copy of the policy to the employee and the policy permits the employee to request leave after becoming aware of the need), and permitting employers to take adverse action against employees who do not comply with notice requirements.
Added language permitting an employer to take adverse personnel action against an employee if the employee uses paid earned sick time for a purpose other than a purpose sanctioned by ESTA, or who violates the ESTA’s notice requirements.
Elimination of a private right of action, but expansion of potential civil penalties that the state’s Department of Labor and Economic Opportunity (LEO) may impose through an administrative proceeding, including, but not limited to, a civil penalty up to eight (8) times the employee’s normal hourly wage.
What Should Michigan Employers Do?
Employers must immediately comply with the Wage Act and pay non-exempt workers a general minimum wage of at least $12.48 per hour and tipped workers a rate of at least $4.74 per hour.
As for ESTA, “small employers” can wait until October 2025 to begin providing benefits, but all employers should take steps to comply. Many of the ESTA amendments clarify the initial version of Supreme Court’s Order, so steps employers have likely taken to prepare for the February 21 effective date will be a helpful starting point. Epstein Becker Green soon will publish more detailed insights about ESTA and its relationship to other leave laws.
Trump Executive Order Requires Independent Agencies to Submit Regulations for Presidential Review
On February 19, 2025, President Donald Trump signed an executive order (the “Order”) mandating that independent agencies, including the SEC, the FCC, and the FTC, submit proposed regulations for presidential review before finalization. The order marks a significant shift in the regulatory process, altering the long-standing autonomy of these agencies by subjecting them to executive oversight.
The Order asserts that independent agencies should not be exempt from executive supervision, citing Article II of the U.S. Constitution. According to the related White House fact sheet, the Order seeks to align the regulatory activities of independent agencies with the Trump administration’s priorities, and ensure consistency across the executive branch. While the Order applies broadly to independent agencies, it explicitly exempts the Federal Reserve’s monetary policy functions.
Some key provisions of the Order include:
Presidential Review Requirement. Independent agencies must submit proposed regulations for review by the White House before adoption.
Interpretation of Law. The President and Attorney General will interpret the law for the executive branch to prevent agencies from issuing conflicting legal positions.
Coordination with the White House. All agencies must consult with the White House to align their strategic plans and regulatory priorities with the administration’s policy goals.
Budgetary Oversight. The Office of Management and Budget will have oversight authority over the budgets of independent agencies to ensure “tax dollars are spent wisely.”
Putting It Into Practice: The Order is part of a broader effort by the Trump administration to increase control over independent federal agencies. The Order argues that “Article II of the U.S. Constitution vests all executive power in the president, meaning that all executive branch officials and employees are subject to his supervision.” The Order is likely to be challenged as it marks a dramatic shift from the current administrative regulatory framework.
Beltway Buzz, February 21, 2025
NLRB Acting GC Rescinds Abruzzo Memos. The National Labor Relations Board (NLRB) still lacks an operational quorum, but Acting General Counsel William B. Cowen is taking steps to undo policy positions held by his predecessor, Jennifer Abruzzo. Thomas M. Stanek and Zachary V. Zagger have the details on Cowen’s rescission of at least eighteen of Abruzzo’s general counsel memoranda relating to expanded remedies, noncompete agreements, and severance agreements, among others. These memoranda represented Abruzzo’s opinion on areas of the law in which she wanted the Board to act, or her interpretations of how Board decisions should be implemented. By rescinding these memoranda, Cowen effectively “wipes the slate clean” and sets the stage for himself—or another individual serving in the general counsel role—to establish his or her own labor policy agenda at the Board. Of course, Cowen’s actions do not overturn any Board decisions that have been issued over the last several years.
Senate HELP Committee Examines Secretary of Labor Nomination. On February 19, 2025, the Senate Committee on Health, Education, Labor and Pensions (HELP) held a hearing to examine the nomination of Lori Chavez-DeRemer to serve as secretary of labor. Chavez-DeRemer didn’t reveal too many details about her agenda should she get confirmed, but here are some takeaways about what we might expect:
Chavez-DeRemer promised to work on or review regulations relating to joint employer and independent contractor status under the Fair Labor Standards Act (FLSA).
As for workplace safety, Chavez-DeRemer stated that she would review the Occupational Safety and Health Administration’s (OSHA) proposed emergency response rule, as well as OSHA’s pending proposal on workplace violence prevention.
No senators asked Chavez-DeRemer about the prospects of the Office of Federal Contract Compliance Programs (OFCCP), which was gutted by Executive Order (EO) 14173, “Ending Illegal Discrimination and Restoring Merit-Based Opportunity.”
Chavez-DeRemer expressly denounced her support of the provision in the Protecting the Right to Organize (PRO) Act, which would eliminate state right-to-work laws, stating that her support of the bill was to start a conversation about workers’ rights and that the bill was imperfect.
Regarding immigration, Senators Susan Collins (R-ME) and Lisa Murkowski (R-AK) expressly asked Chavez-DeRemer to encourage the U.S. Congress to issue the maximum allotment of H-2B visas, while Senator Tommy Tuberville (R-AL) impliedly asked her to support the H-1B program. In response, Chavez-DeRemer noted the U.S. Department of Labor’s (DOL) limited role in these programs, but promised to work with the senators on these issues.
Democratic senators generally raised issues that are likely to resound as reoccurring themes from their side of the aisle during this congressional session: raising the minimum wage, promoting unionization, attacking right-to-work laws, endorsing paid family leave, criticizing noncompete agreements, and condemning President Donald Trump’s removal of U.S. Equal Employment Opportunity Commission (EEOC) commissioners Jocelyn Samuels and Charlotte Burrows, as well as NLRB member Gwynne Wilcox.
Republicans outnumber Democrats on the HELP Committee 12–11, so even one Republican “no” vote could cause problems for Chavez-DeRemer’s nomination. The committee is expected to vote on Chavez-DeRemer’s nomination on February 27, 2025.
House Republican Introduces Independent Contractor Legislation. Representative Kevin Kiley (R-CA) has introduced two bills addressing independent contractors.
The Modern Worker Empowerment Act (H.R. 1319) would amend both the FLSA and the National Labor Relations Act (NLRA) to create a two-part test for determining whether a worker is an independent contractor, rather than an employee. Pursuant to the bill, a worker is an independent contractor if the putative employer “does not exercise significant control over the details of the way the work is performed by the individual” and if the worker “has the opportunities and risks inherent with entrepreneurship, such as the discretion to exercise managerial skill, business acumen, or professional judgment.” The bill also lists several factors that cannot be used as part of the employee/independent contractor inquiry, such as requiring the worker to comply with legal requirements, carry insurance, or “meet contractually agreed-upon performance standards, such as deadlines.’’
The Modern Worker Security Act (H.R. 1320) allows employers to provide workers with portable benefits—such as paid leave, health insurance coverage, and retirement savings—without those benefits being an indicia of employment under federal law.
Kiley represents California’s 3rd congressional district, is very familiar with the state’s A.B. 5 independent contractor statute, and has been a strong opponent of the Biden administration’s DOL’s independent contractor rule.
Democratic State AGs Issue DEI-Related Guidance. The Trump administration’s opposition to diversity, equity, and inclusion (DEI) continues to reverberate in the private-sector employer community. For example, sixteen Democratic state attorneys general have issued a document entitled, “Multi-State Guidance Concerning Diversity, Equity, Inclusion, and Accessibility Employment Initiatives. The document sets forth the legal opinions of the attorneys general regarding the impact of EO 14173 on private-sector DEI initiatives. The guidance takes the position that DEI programs and practices “are not illegal, and the federal government does not have the legal authority to issue an executive order that prohibits otherwise lawful activities in the private sector or mandates the wholesale removal of these policies and practices within private organizations, including those that receive federal contracts and grants.” The guidance does not carry the force of law, and does not compel employers to take any particular action, but it does serve as an example of Democrats’ efforts to counter Republican attempts to undermine diversity and inclusion practices in the private sector. Future Democratic efforts could exert more pressure on employers that have changed their DEI practices as a result of the administration’s actions. Nonnie L. Shivers and Leah J. Shepherd have the details.
EEOC to Prioritize “Anti-American National Origin Discrimination.” On February 19, 2025, the EEOC issued a press release reemphasizing that Acting Chair Andrea Lucas will prioritize “protecting American workers from anti-American national origin discrimination.” The release coordinates the EEOC’s enforcement agenda with the administration’s scrutiny of both legal and illegal immigration, noting, “The EEOC will help deter illegal migration and reduce the abuse of legal immigration programs by increasing enforcement of employment antidiscrimination laws against employers that illegally prefer non-American workers.” The press release further states that federal law makes it unlawful for employers to adopt policies or practices preferring “illegal aliens, migrant workers, and visa holders or other legal immigrants over American workers.”
Incorporating the Bill of Rights. On February 19, 1923, Edward Terry Sanford was sworn in as an associate justice of the Supreme Court of the United States. Sanford only served seven years on the Court until his death in 1930, but he was instrumental in the Court’s adoption of the “incorporation doctrine,” which applies the Constitution’s Bill of Rights to the individual states. Several Supreme Court decisions in the 1800s—including the Slaughter-House Cases (1873)—had restricted the application of the Bill of Rights to the federal government. This began to change incrementally with the turn of the century, and the “incorporation doctrine” was cemented in Supreme Court jurisprudence when Sanford wrote the majority opinion in a 1925 case called Gitlow v. New York. In Gitlow, the Court upheld—by a vote of 7–2—New York’s conviction of Benjamin Gitlow under its Criminal Anarchy Law for publication of a document, titled “Left Wing Manifesto,” as a reasonable action “to protect the public peace and safety.” While the case was an exception to the First Amendment’s free speech protections, Sanford made clear that the amendment was applicable to the states. He wrote:
We may and do assume that freedom of speech and of the press which are protected by the First Amendment from abridgment by Congress are among the fundamental personal rights and “liberties” protected by the due process clause of the Fourteenth Amendment from impairment by the States.
Gitlow paved the way for future cases applying the Bill of Rights to the states, such as Gideon v. Wainwright (1963) (extending the Sixth Amendment’s right to counsel to the states).
The CEQ has No Clothes: The End of CEQ’s NEPA Regulations and the Future of NEPA Practice
On February 20, 2025, the White House Council on Environmental Quality (CEQ) posted a pre-publication notice on its website of an Interim Final Rule that rescinds its regulations implementing the National Environmental Policy Act (NEPA), which, in one form or another, have guided NEPA practice since 1978. CEQ simultaneously issued new guidance to federal agencies for revising their NEPA implementing procedures consistent with the NEPA statute and President Trump’s Executive Order 14,154 (Unleashing American Energy). The Interim Final Rule was submitted for publication in the Federal Register on February 19, 2025 and will become effective 45 days after it is published. This action represents the final blow to CEQ’s NEPA regulations, coming in the wake of two recent federal court decisions in the past few months that foreshadowed their impending demise. In light of those court decisions, CEQ is unlikely to issue new regulations, even under a future presidential administration, without express congressional authorization.
Background
NEPA generally applies to discretionary actions involving federal agencies, including projects carried out by a federal agency itself or by private parties that receive a permit or financial assistance from a federal agency. When NEPA is triggered, it requires a federal agency to analyze the environmental impacts of the project before making a decision to carry it out or issue an approval that may also include conditions or mitigation requirements. NEPA is a procedural law and does not mandate a specific outcome or require that the project proponent mitigate any identified environmental impacts.
NEPA, which was enacted in 1970, is a rather barebones statute. NEPA practice has long been governed by CEQ’s NEPA regulations, which were first promulgated in 1978 after President Carter issued Executive Order 11,991 (Relating to Protection and Enhancement of Environmental Quality) earlier that year directing CEQ to replace its earlier nonbinding guidance. Many common features of NEPA practice — such as environmental assessments, categorical exclusions, programmatic environmental documents, supplemental environmental documents, lead and cooperating agencies, required analysis of a no-action alternative, and required analysis of mitigation measures — are directly tied to CEQ’s 1978 NEPA regulations (some were eventually codified by Congress’s 2023 amendments to NEPA). Agencies could also develop their own NEPA implementing procedures consistent with CEQ’s regulations. Except for one relatively minor amendment in 1986, CEQ’s NEPA regulations did not change between 1978 and 2020, and a large body of case law resulted as courts evaluated agencies’ compliance with the regulations. CEQ substantially revised its regulations during the first Trump administration (in 2020) and during the Biden administration (in 2021 and 2024). For the past nearly 50 years, federal agencies, courts (including the Supreme Court), and NEPA practitioners have largely accepted CEQ’s authority to issue binding regulations without objection.
Recent Court Decisions
Two recent federal court cases challenged the longstanding assumption of CEQ’s authority. First, as we previously reported, in November 2024 the U.S. Court of Appeals for the D.C. Circuit found that CEQ lacked authority to issue binding regulations. (Marin Audubon Society v. Federal Aviation Administration, No. 23-1067 (D.C. Cir. Nov. 12, 2024).) On January 31, the full D.C. Circuit denied a petition for rehearing en banc, with a majority of the judges issuing a concurring statement explaining that the earlier decision’s “rejection of the CEQ’s authority to issue binding NEPA regulations was unnecessary to the panel’s disposition” and, impliedly, not part of the court’s holding.
Then, on February 3, in a different case, a federal district court in North Dakota issued a decision expressly holding that CEQ lacked authority to issue binding regulations. (Iowa v. CEQ, No. 1:24-cv-00089 (D.N.D. Feb. 3, 2025).) That case was brought by Iowa and a coalition of 20 other states to challenge CEQ’s regulations issued in May 2024. The court’s decision closely followed the D.C. Circuit’s analysis in Marin Audubon and came to the same conclusion: CEQ does not (and never did) have the authority to issue binding regulations. The court reasoned that CEQ, which was established by NEPA, was authorized by statute only to “make recommendations to the President.” Thus, based on constitutional separation-of-powers principles, President Carter’s 1978 Executive Order could not legally confer regulatory authority on CEQ in the absence of congressional authorization.
Because the court found that CEQ had no regulatory authority, it vacated the challenged 2024 regulations. Notably, although the court’s conclusion about CEQ authority supported vacatur of all CEQ NEPA regulations, it vacated only the 2024 regulations that were challenged in the case before it, leaving “the version of NEPA in place on June 30, 2024, the day before the rule took effect.” The court noted, however, that “it is very likely that if the CEQ has no authority to promulgate the 2024 Rule, it had no authority for the 2020 Rule or the 1978 Rule and the last valid guidelines from CEQ were those set out under President Nixon.”
The court concluded: “The first step to fixing a problem is admitting you have one. The truth is that for the past forty years all three branches of government operated under the erroneous assumption that CEQ had authority. But now everyone knows the state of the emperor’s clothing and it is something we cannot unsee. . . . If Congress wants CEQ to issue regulations, it needs to go through the formal process and grant CEQ the authority to do so.”
CEQ’s Recission of its NEPA Regulations
Meanwhile, CEQ’s NEPA regulations were concurrently under fire from the executive branch. On January 20, President Trump issued Executive Order 14,154 (Unleashing American Energy), which was largely targeted at removing perceived barriers to domestic fossil fuel production and mining, including federal environmental permitting processes. To that end, Section 5 of the Executive Order revoked President Carter’s 1978 Executive Order directing CEQ to issue binding regulations and directed the chairperson of CEQ to, by February 19, (1) propose rescinding all CEQ NEPA regulations and (2) issue new guidance to federal agencies for implementing NEPA. CEQ has now done as directed.
The Interim Final Rule proposes to rescind the entirety of CEQ’s regulations. It will go into effect 45 days after it is published in the Federal Register to give the public an opportunity to submit comments, which CEQ will “consider and respond to” prior to finalizing the rule. In the preamble to the Interim Final Rule, CEQ states it has “concluded that it may lack authority to issue binding rules on agencies in the absence of the now-rescinded E.O. 11191.” While CEQ considers the revocation of the Carter Executive Order to constitute an “independent and sufficient reason” for rescinding the NEPA regulations, it also agrees (contrary to its longstanding and customary practice) that “the plain text of NEPA itself may not directly grant CEQ the power to issue regulations binding upon executive agencies.”
CEQ Guidance to Federal Agencies Regarding NEPA Implementation
At the same time CEQ proposed to rescind its NEPA regulations, it also issued guidance to federal agencies for implementing NEPA going forward and for revising or establishing their own NEPA-implementing procedures, consistent with the NEPA statute and Executive Order 14,154. That guidance recommends agencies “continue to follow their existing practices and procedures for implementing NEPA” while they work on their new procedures and “should not delay pending or ongoing NEPA analyses while undertaking these revisions.” As to these pending or ongoing NEPA reviews, CEQ advises agencies to “apply their current NEPA implementing procedures” and “consider voluntarily relying on” the soon-to-be rescinded regulations.
The guidance also proposes a path forward to agencies to follow in drafting new procedures. It “encourages agencies” to use the 2020 NEPA regulation revisions as a framework and advises that agencies should consider the following:
Prioritize project-sponsor-prepared environmental documents for expeditious review.
Ensure that the statutory timelines established in section 107 of NEPA will be met for completing environmental reviews. (Generally, one year for a completion of an environmental assessment and two years for an environmental impact statement.)
Include an analysis of any adverse environmental effects of not implementing the proposed action in the analysis of a no action alternative to the extent that a no action alternative is feasible.
Analyze the reasonably foreseeable effects of the proposed action consistent with section 102 of NEPA, which does not employ the term “cumulative effects.”
Define agency actions with “no or minimal federal funding” or that involve “loans, loan guarantees, or other forms of financial assistance” where the agency does not exercise sufficient control over the subsequent use of such financial assistance or the effect of the action to not qualify as “major Federal actions.”
Not include an environmental justice analysis, since Executive Order 12,898, which required all federal agencies to “make achieving environmental justice part of its mission” was separately revoked by Executive Order 14,173.
CEQ has set a 12-month timeframe for federal agencies to complete the revision of their NEPA procedures. Agencies must consult with CEQ while revising their implementation procedures and CEQ will hold monthly meetings of the “Federal Agency NEPA Contacts and the NEPA Implementation Working Group” as required by Executive Order 14,154 to coordinate revisions amongst the agencies. Within 30 days of the guidance memorandum, agencies must develop and submit to CEQ a proposed schedule for updating their implementation procedures.
NEPA Practice in the Near Future
Going forward, agencies, project applicants, and NEPA practitioners should rely upon the NEPA statute (as amended by the Fiscal Responsibility Act in 2023) as primary authority. For projects with ongoing or pending NEPA review, applicants should expect federal agencies to continue to apply their existing NEPA practices and rely on the soon-to-be rescinded regulations, except to the extent they are inconsistent with Executive Order 15,154 or the NEPA statute (and in that regard, they will need to be closely evaluated on an individual basis). Case law also will need to be closely analyzed to determine whether courts’ holdings in prior cases were predicated on the statute itself (and therefore, still have binding or persuasive authority, depending on the court) or were based on CEQ’s regulations (in which case they should no longer have any authority). CEQ’s guidance is expressly non-binding, but should also be considered.
In a twist of irony, the rescission of CEQ’s NEPA regulations could lead to greater delays in environmental reviews and permitting (including for fossil fuel production and mining projects favored by Executive Order 14,514), at least in the near term. CEQ’s regulations created uniform procedures that applied to all federal agencies, which was particularly helpful for complex projects that require approvals from multiple federal agencies. Without uniform regulations, each individual agency might now impose its own requirements on the NEPA process. This could result in greater challenges coordinating environmental reviews and permitting among multiple agencies, although CEQ will likely attempt to harmonize implementation procedures as it reviews agencies’ proposals. In addition, permitting delays are expected as agency staff adjust to the new landscape and determine how to comply with NEPA without reliance upon CEQ’s regulations. Staffing shortages resulting from the Trump administration’s efforts to reshape the federal workforce are also likely to additionally exacerbate these problems.
Relatedly, this term, the Supreme Court is considering its first NEPA case since 2004 (Seven County Infrastructure Coalition v. Eagle County) involving the scope of impacts that agencies must consider. Because the case involves the NEPA statute rather than its implementing regulations, the rescission of CEQ’s regulations is unlikely to affect the decision. Oral argument was held in December, and a decision is expected this spring. We will continue to track developments related to this decision.
March 14, 2025, Looming as Important Date for Congressional Republicans and President Trump, and May Provide Leverage to Democrats
March 14, 2025, looms as an important deadline in the middle of President Trump’s first 100 days in office, a milestone often used to evaluate the effectiveness of a new President. March 14 is the day that the American Relief Act, 2025 (Public Law 118-158), which provides temporary funding for the federal government, expires. The law was enacted during the 118th Congress and signed into law by President Biden. At the time, some questioned whether having government funding expire during President Trump’s first 100 days in office was a good idea. Now, Republicans, who control the White House, Senate, and House of Representatives, need to pass legislation to avoid a government shutdown on March 15, and may need Democratic support to do so. The question is, at what cost?
Government funding is not the only thing that expires March 14, 2025. The National Flood Insurance Program was extended through March 14, 2025, and will also expire if not extended, as will Temporary Assistance for Needy Families (TANF), which provides benefits to families in need. Congress also needs to raise the debt limit, but not necessarily within this same timeframe.
Simultaneous with figuring out how to fund the federal government for the remainder of Fiscal Year 2025, the Republican-led Congress also is working on legislation to enact President Trump’s priority issues, including extending the 2017 tax provisions, providing money for border security, and addressing immigration. Making matters more challenging, leadership in the House of Representatives and Senate are taking sharply different approaches to developing such legislation. Adding one more degree of difficulty to this legislative effort, House Republicans in the last Congress needed Democrats to vote for the legislation for it to pass. What is unknown this time is whether Democrats will vote in sufficient numbers with Republicans to fund the government and, if so, what concessions they will be able to gain from Republicans to secure their support.
I wrote in December that slim majorities will test Republican unity in the 119th Congress. The looming March 14, 2025, deadline combined with the desire to pass legislation to enact President Trump’s priorities early in 2025, present an interesting test of Republican unity, and may present out-of-power Democrats with sufficient leverage to gain concessions to win their support. The next few weeks will provide a fascinating look at what to expect for the remainder of the 119th Congress.