Potential Changes in the Regulation of Artificial Intelligence in 2025
On January 20, 2025, within hours of taking the oath of office for the second time, President Donald Trump issued an executive order that revoked an executive order from the prior administration regarding the use of artificial intelligence (AI). During the first term of President Trump from 2017 until 2021, the use of AI, in particular generative AI, was not as prevalent as it is today. As such, the number of regulations of AI at the federal, state, or local level was more limited as well. The significant technology advance and adoption over the past four years has impacted government regulation and will likely continue to do so.
On the first day of his second term in office, President Trump issued an executive order titled “Initial Rescissions of Harmful Executive Orders and Actions.” It reads that to “commence the policies that will make our Nation united, fair, safe, and prosperous again, it is the policy of the United States to restore common sense to the federal government and unleash the potential of the American citizen.” In connection with that, the executive order revokes more than 50 prior executive orders, including Executive Order 14110 of October 30, 2023 (Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence).
Executive Order 14110 outlined its purpose as “governing the development and use of AI safely and responsibly, and is therefore advancing a coordinated, Federal Government–wide approach to doing so.” The executive order also outlined eight “guiding principles and priorities”:
Making AI safe and secure
Promoting “responsible innovation, competition, and collaboration”
Committing to supporting American workers in the development and use of AI
Advancing equity and civil rights with AI
Protecting the interest of Americans using AI and AI-enabled products in their daily lives
Protecting Americans’ privacy and civil liberties
Managing the risks from the federal government’s own use of AI
Engaging with international allies and partners in developing a framework to manage AI’s risks, unlock AI’s potential for good, and promote common approaches to shared challenges.
Executive Order 14100 was one of many executive orders issued in the past four years. Some other prior executive actions on AI are the October 2024 “Framework to Advance AI Governance and Risk Management in National Security”; the U.S. Office of Special Counsel’s principles and policies for the use of AI; and most recently in January 2025, on federal support for AI Data Centers.
Chain of Executive Orders on AI
In his first term in office, President Trump did issue Executive Order 13859 in February 2019, “Maintaining American Leadership in Artificial Intelligence.” Under this executive order, “Agencies are encouraged to continue to use AI, when appropriate, to benefit the American people.” It also noted that “Agencies must therefore design, develop, acquire, and use AI in a manner that fosters public trust and confidence while protecting privacy, civil rights, civil liberties, and American values, consistent with applicable law and the goals of Executive Order 13859.” It outlined nine principles for the use of AI in government:
Lawful and respectful of the Nation’s values
Performance driven
Accurate
Safe and secure
Understandable
Responsible and traceable
Regularly monitored
Transparent
Accountable.
Many of these same principles can be found in the October 2023 Executive Order 14110 that has now been revoked, with the main difference of the latter addressing concerns about the implementation of AI in the private sector and in the government, while the 2019 Executive Order 13859 focused only on the government’s implementation of artificial intelligence.
The recent executive order revoking the 2023 Executive Order 14110 appears to reflect this difference, as the other executive orders on AI focused on the government’s use of AI were not revoked. This concern on regulation of the private sector can be found in the 2024 Republican Party platform on AI, which noted that certain executive orders hindered AI innovation and that they “support AI Development rooted in Free Speech and Human Flourishing.” Potentially as a sign of things to come, CEOs of large technology companies such as Amazon, Meta, Google, and Tesla were in attendance at the recent inauguration.
Conclusion
It is worth noting that the recent executive order states that the “revocations within this order will be the first of many steps the United States federal government will take to repair our institutions and our economy.” Thus, it remains to be seen how future government action at the federal level in 2025 will impact the regulation of artificial intelligence going forward.
Trump Administration Disavows the OECD Global Tax Deal
On January 20, 2025, the White House issued a memorandum (the “Memorandum”)[1], announcing that the “Organization for Economic Co-operation and Development (OECD) Global Tax Deal” (the “Global Tax Deal”) has “no force or effect in the United States” and disavowing “any commitments” previously made by the United States with respect to the Global Tax Deal, absent an act of Congress. The Memorandum also directs the Secretary of the Treasury to develop and present to the President a list of “protective measures or other options” towards foreign countries that are either “not in compliance with any tax treaty” with the United States or have (or are likely to have) tax rules that are “extraterritorial or disproportionately affect American companies”.
While the Memorandum does not specifically reference previously published Internal Revenue Service (“IRS”) guidance with respect to aspects of the Global Tax Deal, it is unclear whether some or all of such guidance would be considered a “commitment” of the United States that is repudiated by the Memorandum. Additionally, the Memorandum specifically calls on the Secretary of the Treasury to consider whether U.S. tax treaty partners are in compliance with their obligations under tax treaties. All potentially affected multinational enterprises and their related stakeholders should monitor closely U.S. tax policy developments related to the issues set forth in the Memorandum. The balance of this blog post provides background on the Memorandum and summarizes its provisions.
Background and Summary of Provisions
The Global Tax Deal, in very basic terms, is the outcome of over a decade of negotiation by various members of the OECD and other countries to address the perceived abuses of “base erosion and profit shifting” (“BEPS”) by multinational corporations to reduce their overall effective tax rate. An important element of the Global Tax Deal is an agreement to impose a global minimum tax of 15% on corporate profits through very complicated mechanics, including by granting countries in certain circumstances the ability to impose a “top-up tax” on very large multinational groups to ensure that profits derived in that country are subject to the global minimum tax – even if that multinational would not otherwise be subject to tax on those profits in that country (either by application of a treaty or under the general corporate tax laws of that country).
While the Memorandum does not address this global minimum tax specifically (or any other particular provision of the Global Tax Deal), the Memorandum characterizes the Global Tax Deal as allowing “extraterritorial jurisdiction over American income” (presumably, for example, by allowing the imposition of a top-up tax by another country), as well as limiting the ability of the United States to enact “tax policies that serve the interests of American businesses and workers” (presumably, for example, policies that might allow American multinationals to achieve an effective tax rate below the BEPS global minimum tax rate, such as R&D credits). The Memorandum further asserts that American companies might be subject to “retaliatory international tax regimes” if the U.S. does not comply with “foreign tax policy objectives”. The Memorandum explicitly states the Administration’s view that American “economic competitiveness” and “sovereignty” are enhanced by clarifying that the Global Tax Deal has “no force or effect in the United States”. Section 1 of the Memorandum instructs the Secretary of the Treasury and the Permanent Representative of the United States to the OECD to (i) notify the OECD that any commitments made by the “prior administration” on behalf of the United States in respect of the Global Tax Deal have no force or effect, absent an act of Congress adopting the relevant provisions of the Global Tax Deal and (ii) otherwise take “all additional necessary steps” to otherwise implement the findings of the Memorandum. Left unclear by the Memorandum is whether the Trump Administration intends for the Secretary to withdraw prior published guidance by the IRS (e.g., Notice 2025-4), or what the effect of those components of OECD BEPS authority incorporated by reference in published guidance does, or does not, still have.
Additionally, the Memorandum instructs the Secretary to investigate, in cooperation with the United States Trade Representative, whether “any foreign countries” are either “not in compliance with any tax treaty” with the U.S. or have (or are likely to have) tax rules that are “extraterritorial or disproportionately affect American companies”. While the Memorandum does not single out any particular country and does not specify what might fall within the scope of an “extraterritorial” or “disproportionate” tax rule, these tax rules likely include both rules implementing the global minimum tax describe above, as well as various “digital services taxes” that have been proposed or implemented by various non-U.S. jurisdictions, including certain U.S. tax treaty partners. The Memorandum further instructs the Secretary to develop “protective” measures or actions that may be taken in response to those tax treaty noncompliance or tax rules. The Secretary is instructed in the Memorandum to deliver findings and recommendations to the President within 60 days.
[1] Available at https://www.whitehouse.gov/presidential-actions/2025/01/the-organization-for-economic-co-operation-and-development-oecd-global-tax-deal-global-tax-deal/, last visited January 21, 2025.
Stuart Rosow also contributed to this article.
EO 11246 On Affirmative Action is Dead – But What Will Take Its Place?
Tuesday evening, January 21, 2025, President Trump issued an executive order entitled, “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” addressing the suspension of DEI staff in government positions. Within the Order, the President revokes a number of prior executive orders, including Executive Order 11246 of September 24, 1965 (Equal Employment Opportunity).
The primary intent of the Order is to eliminate what it describes as “illegal preferences” based on race, sex, or other identity categories. It stresses the importance of enforcing civil rights laws that protect against discrimination and promoting merit-based hiring practices. The Order directs federal agencies to end policies or programs that prioritize DEI in hiring or contracting, as well as in other activities, and encourages the private sector to align with this approach.
Specifically, the Order reads:
“Federal contracting process shall be streamlined to enhance speed and efficiency, reduce costs, and require Federal contractors and subcontractors to comply with our civil-rights laws. Accordingly:
Executive Order 11246…is hereby revoked. For 90 days from the date of this order, Federal contractors may continue to comply with the regulatory scheme in effect on January 20, 2025.
The Office of Federal Contract Compliance Programs within the Department of Labor shall immediately cease:
Promoting “diversity;”
Holding Federal contractors and subcontractors responsible for taking “affirmative action;” and
Allowing or encouraging Federal contractors and subcontractors to engage in workforce balancing based on race, color, sex, sexual preference, religion, or national origin.”
Federal contractors are still required to complete VETS and Disabled AAPs, as those are legislatively mandated. In his speech discussing executive orders to come, President Trump emphasized his administration’s commitment to merit-based hiring and non-discrimination in the workplace—a sentiment that aligns with Title VII of the Civil Rights Act of 1965, as amended.
While it is unclear how this EO will impact ongoing audits initiated by the OFCCP, there is still a lack of clarity as to what, if anything, will replace EO 11246. Importantly, the EO did not disband the OFCCP. It is possible that the administration plans to use the OFCCP to fetter out DEI programs in the federal contractor community, keeping up with its promise on the campaign trail, and shift the agency’s focus to ensuring merit-based hiring instead of a focus on compliance with affirmative action requirements.
As this Order takes effect, some states may choose to step in and mandate affirmative action plans, essentially adopting the existing federal affirmative action framework for state-level employment practices. This is more likely in states such as California, Illinois, New York, and New Jersey.
For federal contractors, this Order indicates a shift in compliance requirements and adjustments to workforce planning strategies. As the regulatory landscape evolves, reach out to legal counsel to understand how these changes affect your operations and policies moving forward.
With Executive Orders, President Trump Reshapes Federal Environmental and Energy Policy
The first day of any presidential administration is filled with both ceremony and bureaucracy. The first day of the second Trump Administration was no different.
In his first several hours as president, President Trump began reshaping the government through dozens of executive orders (EO). We summarize the initial orders and memoranda — many of them anticipated — impacting the energy and environmental spaces.
Revoking Prior Executive Orders
Upon taking office, presidents use executive orders to shape their Administration and announce policy preferences. However, policies made by executive order are often overturned by subsequent Administrations. When the first Trump Administration took office, we analogized executive order-based policies to the straw houses constructed in the “Three Little Pigs” children’s story.
Continuing recent practice, President Trump immediately issued an executive order disavowing many Biden Administration executive orders. Revoked orders in the energy and environmental space include:
Executive Order 13985 of January 20, 2021 (Advancing Racial Equity and Support for Underserved Communities Through the Federal Government). (A discussion of work relying on EO 13985 is here.)
Executive Order 13990 of January 20, 2021 (Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis).
Executive Order 14008 of January 27, 2021 (Tackling the Climate Crisis at Home and Abroad). (Grants under the Justice40 Programs established under EO 14008 are discussed here.)
Executive Order 14027 of May 7, 2021 (Establishment of the Climate Change Support Office).
Executive Order 14037 of August 5, 2021 (Strengthening American Leadership in Clean Cars and Trucks).
Executive Order 14052 of November 15, 2021 (Implementation of the Infrastructure Investment and Jobs Act).
Executive Order 14057 of December 8, 2021 (Catalyzing Clean Energy Industries and Jobs through Federal Sustainability).
Executive Order 14082 of September 15, 2022 (Implementation of the Energy and Infrastructure Provisions of the Inflation Reduction Act of 2022).
Executive Order 14091 of February 16, 2023 (Further Advancing Racial Equity and Support for Underserved Communities Through the Federal Government).
Executive Order 14094 of April 6, 2023 (Modernizing Regulatory Review). (Guidance issued under EO 14094 is discussed here.)
Executive Order 14096 of April 21, 2023 (Revitalizing Our Nation’s Commitment to Environmental Justice for All).
The Presidential Memorandum of January 6, 2025 (Withdrawal of Certain Areas of the Outer Continental Shelf from Oil or Natural Gas Leasing).
Regulatory Freeze
President Trump issued a “Regulatory Freeze Pending Review” for all rules forwarded to the Federal Register for publication and made available for inspection but not yet published or effective. This action was expected. However, it may not be effective because the Administrative Procedure Act can require use of notice-and-comment rulemaking to undo rules that have been published but are not yet effective. (For more, see here.)
Government Structure
President Trump restored his first Administration’s policy to reclassify 10s of thousands of federal civil service positions in “policy-influencing” roles as at-will employees. The policy, formerly known as “Schedule F” and now called “Schedule Policy/Career,” aims to make it easier for the Trump Administration to replace certain employees with Trump-aligned workers. Under a Biden Administration rule, individual employees whose positions are reclassified may challenge that change before the federal Merit System Protection Board. The National Treasury Employees Union, which represents 150,000 federal employees, sued on Monday to block the order.
In other government employee news, the White House announced a hiring freeze for executive branch agencies other than the military and asked the director of the Office of Management and Budget to prepare a plan to “reduce the size of the Federal Government’s workforce through efficiency improvements and attrition.” One factor that may drive attrition is a newly announced policy encouraging a return to in-person work with agencies directed to “as soon as practicable, take all necessary steps to terminate remote work arrangements and require employees to return to work in-person at their respective duty stations on a full-time basis.”
Climate
In his second inaugural address, President Trump promised to “drill, baby, drill.” To that end, the president signed an executive order, “Unleashing American Energy,” to set the federal government’s new energy policy.
The order announces a new policy to promote fossil fuel production, including on federal lands and in federal waters, aid critical mineral production, end federal support for electric vehicles, and calculate the domestic impacts of regulations without considering climate change effects to other countries. The order instructs federal agencies to review their programs, regulations, and actions to align with these policy goals.
The order revokes numerous Biden Administration orders and programs related to climate and the environment. Among these, it restarts approvals for liquified natural gas export terminals, terminates the American Climate Corps, and ends the Interagency Working Group on the Social Cost of Greenhouse Gases. The new Administration may also relax energy efficiency standards for motor vehicles and household appliances. (Conservative groups have long opposed energy efficiency requirements.)
The order instructs the US Environmental Protection Agency (EPA) to consider eliminating the social cost of carbon from federal consideration. It also commands EPA to consider whether to revise or revoke the Obama EPA’s endangerment finding that greenhouse gases threaten public health and welfare under the Clean Air Act. Public interest groups and others may challenge this action as inconsistent with the US Supreme Court’s decision in Massachusetts v. EPA.
In a separate order, Trump withdrew the United States from the United Nations Framework Convention on Climate Change, including the Paris Agreement. He also terminated the US International Climate Finance Plan.
Energy Development
A major plank of President Trump’s platform was to encourage development of fossil fuel resources. The United States currently produces more crude oil than any nation and is expected to produce more in 2025 than in 2024. President Trump’s orders aiming to rescind the Biden Administration’s renewable energy policies and promote fossil fuel development include the following:
Promoting fossil fuel development. The “Unleashing American Energy” order requires federal agencies to review activities that “impose an undue burden” on the development of domestic energy resources, specifically “natural gas, coal, hydropower, biofuels, critical mineral, and nuclear energy resources.” Agencies must develop action plans within the next 30 days to address rules that potentially limit these resources.
Pausing disbursement of funds under the Inflation Reduction Act (IRA). The “Unleashing American Energy” order instructs all agencies to “immediately pause disbursement of funds” appropriated through the IRA and the Infrastructure Investment and Jobs Act. Specifically, the order highlights funds for electric vehicle charging stations through the National Electric Vehicle Infrastructure Formula Program and the Charging and Fueling Infrastructure Grant Program. Within 90 days, all agency heads must review grant, loan, and contract policies to align with the new energy policy.
The order leaves unresolved significant questions regarding countless ongoing projects, and whether funding will be available as expected. In the next 90 days, we expect to see significant lobbying by business, state elected officials, and members of US Congress to preserve projects funded or expecting funding to preserve the status of projects in their jurisdictions.
Speeding up project permitting. “Unleashing American Energy” addresses permitting with a goal of speeding up projects. The order instructs the Chairman of the Council on Environmental Quality (CEQ) to propose rescinding the current CEQ regulations implementing the National Environmental Policy Act (NEPA) and to work with agencies to revise their NEPA regulations. The impact of these changes depends on what revisions or replacement regulations, if any, the new Administration adopts. The order also advises agency heads to use all possible authority, including emergency authority, to expedite projects essential to national security. The Administration will submit a permitting reform proposal to Congress.
Fostering domestic development of critical minerals. “Unleashing American Energy” instructs agencies to identify and then revise or rescind regulations that impose an undue burden on domestic mining of critical minerals. The order instructs the director of the US Geological Survey to consider listing uranium as a critical mineral.
Declaring a National Energy Emergency. The “Declaring a National Energy Emergency” executive order cites the need to reduce energy costs as a rationale for promoting oil and natural gas production. In particular, the order requires the heads of federal agencies and executive departments to “identify and exercise any lawful emergency authorities available to them, as well as all other lawful authorities they may possess” to facilitate and expedite the identification, leasing, siting, production, transportation, refining, and generation of domestic energy resources, including on federal lands. It also calls for review of “obstacles to domestic energy infrastructure” from environmental protections like the Endangered Species Act or the Marine Mammal Protection Act.
Halting wind development. A memorandum titled “Temporary Withdrawal of All Areas on the Outer Continental Shelf from Offshore Wind Leasing and Review of the Federal Government’s Leasing and Permitting Practices for Wind Projects” temporarily bans leasing any area of the Outer Continental Shelf for offshore wind development. The memorandum does not affect rights under existing leases, but the US Secretary of the Interior, in consultation with the Attorney General, is instructed to identify any legal basis for modifying these rights. The Secretary of Interior is also instructed to assess the environmental impact of onshore and offshore wind development (including on birds and mammals), the economic costs of intermittent electricity generation, and the effect of subsidies on wind industry viability. The Secretary of Interior, the US Secretary of Energy, and the Administrator of the EPA are also instructed to assess the environmental impact and cost of defunct and idle windmills and to review all federal wind leasing and permitting practices.
Promoting Alaskan energy development. Finally, “Unleashing Alaska’s Extraordinary Resource Potential” revokes restrictions on drilling and extraction and expedites the permitting and leasing of energy and natural resource projects in Alaska. The order particularly prioritizes the development of Alaskan liquified natural gas.
Environmental Justice
President Trump took aim at the Biden Administration’s environmental justice (EJ) policies. Starting with the now-repealed Executive Order 13985, the Biden Administration used a “whole of government” approach to address EJ issues. In EO 13985’s words, these issues resulted in “[e]ntrenched disparities in our laws and public policies” that have “denied … equal opportunity to individuals and communities” and that could be addressed by a “comprehensive approach” by the federal government to impact communities that are “underserved, marginalized, and adversely affected by persistent poverty and inequality.”
The Biden Administration’s efforts to address EJ issues were controversial with disputes ranging from already constructed projects being denied operating permits in Chicago, Louisiana’s so-far successful attack on EPA’s use of civil rights authorities, and whether and to what extent race and nonenvironmental impacts should affect environmental permitting.
The Trump Administration had been expected to curtail EPA’s focus on EJ. Under the banner of “Ending Radical and Wasteful Government DEI Programs and Preferencing,” an executive order declared that the “Biden Administration forced illegal and immoral discrimination programs, going by the name ‘diversity, equity, and inclusion’ (DEI) into virtually all aspects of the Federal Government.” This order directs agencies to “take immediate steps to end Federal implementation of unlawful and radical DEI ideology.”
The order directs federal agencies to, among other actions, terminate “to the maximum extent allowed by law” all DEI and EJ offices and positions. It also instructs agencies to tally past DEI and EJ expenses and to identify federal contractors and grantees who provided DEI work. While future efforts to rollback Biden era EJ initiatives are expected, the focus on EJ by many states is expected to continue.
California Water Infrastructure
Citing both ongoing wildfires in Southern California and also efforts conducted during the first Trump Administration, in a memorandum addressed to the Secretaries of the Interior and Commerce entitled “Putting People over Fish: Stopping Radical Environmentalism to Provide Water to Southern California,” the president directed the Secretaries of Commerce and Interior to study and report back in 90 days on ways “to route more water from the Sacramento-San Joaquin Delta to other parts of the state for use by the people there who desperately need a reliable water supply.”
Trump Issues Sweeping Executive Order Declaring National Energy Emergency
On 20 January 2025, President Trump issued an Executive Order declaring a National Energy Emergency (Order).1 Under the National Emergencies Act,2 the president may declare a national emergency that allows the government to use statutory authorities that are reserved for times of national emergencies. In other words, a national emergency declaration does not suspend or change the law except as permitted by applicable statutory emergency authorities. The relevant statutory emergency authorities are discussed below.
In summary, the Order directs agencies to utilize their statutory emergency powers to speed up development and authorization of energy projects. Notably, however, the Order defines “energy” as: “crude oil, natural gas, lease condensates, natural gas liquids, refined petroleum products, uranium, coal, biofuels, geothermal heat, the kinetic movement of flowing water, and critical minerals.” As such, the Order does not apply to solar, wind, batteries, or other energy sources not contained in the definition of “energy.”
The Order contains six substantive provisions:
Emergency Approvals. The Order directs the heads of executive departments and agencies to identify authorities to facilitate domestic energy production on Federal and other lands, including Federal eminent domain authorities and authorities under the Defense Production Act.3 This provision also directs the Environmental Protection Agency (EPA) to consider issuing emergency fuel waivers to allow the year-round sale of E15 gasoline.4
Expediting the Delivery of Energy Infrastructure. The Order directs agencies to use all relevant lawful emergency and other authorities to: (a) expedite the completion of authorized and appropriate energy projects; (b) facilitate energy production and transportation through the West Coast, Northeast, and Alaska; and (c) report on these activities to the Assistant to the President for Economic Policy.
Emergency Regulations and Nationwide Permits Under the Clean Water Act and Other Statutes Administered by the Army Corps of Engineers. The Order directs the heads of all agencies to identify planned or potential actions to facilitate energy production that may be subject to the Army Corps emergency permitting provisions and use these authorities to facilitate the nation’s energy supply.5 The Order also requires agencies to report on evaluations under this provision and directs the Army Corps and EPA to promptly coordinate with agencies regarding application of Army Corps permitting provisions.
Endangered Species Act (ESA) Emergency Consultation Regulations. The Order directs the heads of all agencies to identify planned or potential actions to facilitate energy production that may be subject to ESA emergency permitting provisions and use these authorities to facilitate the nation’s energy supply.6 The Order also requires agencies to report on evaluations under this provision and directs the US Fish and Wildlife Service and National Marine Fisheries Service to promptly coordinate with agencies regarding application of ESA emergency permitting provisions.
Convening the ESA Committee. The Order directs the ESA Committee to meet quarterly to review applications for exemption from requirements of the ESA (or to identify obstacles to domestic energy infrastructure, if the ESA Committee has no pending applications for review). This provision requires the Secretary of the Interior to determine an applicant’s eligibility for an ESA exemption within 20 days of receipt and the ESA Committee to grant or deny the application within 140 days of the Secretary’s eligibility determination.
Coordinated Infrastructure Assistance. The Order directs the Secretary of Defense, in collaboration with the Secretaries of Interior and Energy, to conduct an assessment of the Department of Defense’s ability to acquire and transport the energy, electricity, or fuels needed to protect the homeland and conduct operations abroad, with a focus on the Northeast and West Coast. This provision notes that the Secretary of the Army may address any of these vulnerabilities under the Army’s authority to undertake military construction projects in the event of a national emergency.7
While the Order clearly expresses the Trump Administration’s policy to encourage development of domestic conventional energy production, the affected agencies must still act within prescribed statutory limits. As such, it will take time to see how future legal challenges will shape the Order’s ultimate impact on the permitting and siting of future conventional energy projects throughout the United States.
Our multidisciplinary teams are advising a wide range of clients across the energy industry on the critical changes announced and soon-to-be-implemented by the new Trump Administration, including policy priorities, impacts to permitting and regulatory processes, environmental reviews, and the impacts of recent Supreme Court decisions like Loper Bright on future agency actions.
Footnotes
1 https://www.whitehouse.gov/presidential-actions/2025/01/declaring-a-national-energy-emergency/
2 See 50 U.S.C. 1601 et seq.
3 See 50 U.S.C. 4501 et seq.
4 As authorized under 42 U.S.C. 7545(c)(4)(C)(ii)(III).
5 As authorized under 33 U.S.C. 1344; 33 U.S.C. 403; 33 U.S.C. 1413.
6 As authorized under 50 C.F.R. 402.05; 16 U.S.C. 1531 et seq.
7 As authorized under 10 U.S.C. § 2808.
Additional Authors: Tim L. Peckinpaugh, Andrew H. Tabler, Varu Chilakamarri
How Will Limiting the Scope of the 14th Amendment Impact the EB-5 Financing Market?
As anticipated, the 47th president issued a series of Executive Orders on his first day in office, one of which has caught significant attention within the EB-5 industry. The order, titled “Protecting the Meaning and Value of American Citizenship,” seeks to narrow the citizenship rights granted by the 14th Amendment. The amendment itself begins with the phrase, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” In the landmark decision United States v. Wong Kim Ark, decided in 1898, the Supreme Court held that a child born in the United States of Chinese parents who were ineligible to be naturalized themselves was nevertheless a citizen of the United States entitled to all the rights and privileges of citizenship.
In the more than a century since the Wong Kim Ark decision, courts have largely accepted that a child born in the United States of non-United States citizens is a U.S. citizen, with limited exceptions, such as children born of diplomatic representatives of a foreign state. Current data on the number of children born to unauthorized immigrant parents is uncertain, but in 2018, the Pew Research Center released a report indicating that births to unauthorized immigrants generally rose throughout the 1980s, 1990s, and 2000s, before declining with the onset of the Great Recession in 2007. According to the Annie E. Casey Foundation, approximately 24% of births in the United States in 2023 were to foreign-born mothers, though this data does not differentiate between unauthorized immigrant mothers and legally present foreign-born mothers. Moreover, the Center for Immigration Studies, a D.C.-based think tank, alleges that birth tourism results in about 33,000 births to women on tourist visas annually while hundreds of thousands more are born to mothers who are illegal aliens or present on other temporary visas.
The rules by the State Department on the issuance of visas in the “B” nonimmigrant classification for temporary visitors for pleasure state:
Travel to the United States with the primary purpose of obtaining U.S. citizenship for a child by giving birth in the United States is an impermissible basis for the issuance of a B nonimmigrant visa. Consequently, a consular officer shall deny a B nonimmigrant visa to an alien who he or she has reason to believe intends to travel for this primary purpose . . . Permitting short-term visitors with no demonstrable ties to the United States to obtain visas to travel to the United States primarily to obtain U.S. citizenship for a child creates a potential long-term vulnerability for national security.
President Trump’s Executive Order proposes to limit the scope of citizenship under the 14th Amendment by excluding individuals born in the U.S. under the following circumstances:
When the mother was unlawfully present in the U.S. at the time of birth, and the father was neither a U.S. citizen nor a lawful permanent resident; or
When the mother’s presence was lawful but temporary (e.g., under a visa waiver program, student visa, work visa, or tourist visa), and the father was not a U.S. citizen or lawful permanent resident.
The ACLU along with others have already filed lawsuits challenging the order while seeking injunctive relief on the basis that this Executive Order would require a constitutional amendment to take effect, which would need to pass with a two-thirds majority in both the Senate and the House of Representatives, followed by ratification by three-fourths of the states.
The Executive Order does not change any policy related to the EB-5 Program, and any immediate effects on the program remain unclear. However, for those parents who have the means to travel to the United States to have their baby on U.S. soil and allow their child to reap the benefits of birthright citizenship, utilizing their economic means to pursue a green card through the investment and job creation requirements of the EB-5 Program may become a more attractive option. Hence, if birth tourism and other origins of citizenship are prevented through the narrowing of the 14th Amendment, we should see significant increase in EB-5 demand.
President Trump’s Executive Orders on Immigration and What They Mean for Employers
Following his inauguration on Jan. 20, 2025, President Donald Trump signed several executive orders designed to advance his immigration agenda. The orders include:
Ending Birthright Citizenship
Enhanced Vetting
Creating “Homeland Security Task Forces”
Ending Birthright Citizenship
This order directs federal agencies to refuse to recognize U.S. citizenship for children born in the United States to mothers in the country illegally, or who are present in the United States on non-immigrant visas, if the father is not a U.S. citizen or green card holder.
The order will deny U.S. citizenship, including passports, to children born in the United States 30 days from Jan. 20, 2025, if at least one parent is not an American citizen or green card holder. It is not clear what status, if any, these children will be deemed to hold upon birth in the U.S.
Court challenges to the order are expected. The U.S. Supreme Court ruled more than a century ago that children born in the United States to foreign parents are U.S. citizens under the 14th Amendment. See United States v. Wong Kim Ark, 169 U.S. 649 (1898). The only legally recognized exception applies when both parents are diplomats with immunity from U.S. laws.
Two dozen states and cities have filed a lawsuit in the U.S. District Court for the District of Massachusetts challenging President Trump’s executive order regarding birthright citizenship. While the litigation is pending, employees on non-immigrant visas who are due to give birth more than 30 days from Jan. 20, 2025, should evaluate the eligibility of their children for non-immigrant visas.
Enhanced Vetting
President Trump has signed an order to “enhance vetting and screening of illegal aliens.” The order directs agencies to provide recommendations to the president for suspending entry of migrants from “countries of particular concern.”
During his first administration, President Trump banned travel from countries, including Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen for 90 days with certain exceptions. The bans were challenged in court, but they were ultimately upheld by the Supreme Court in Trump v. Hawaii, et al., 585 U.S. 667, 138 S. Ct. 2392 (2018).
It is not clear which countries may be the targets of travel bans under the second Trump Administration, or when travel bans may take effect. Employees from countries that have been the targets of prior travel bans may wish to reconsider foreign travel or, if currently abroad, return to the United States as soon as possible. Jackson Lewis will monitor developments and provide updates.
Creating “Homeland Security Task Forces”
President Trump has signed an executive order to establish “federal homeland security task forces” to enable federal, state, and local law enforcement to cooperate in removing gang members, criminals, and undocumented individuals. The willingness of local law enforcement to cooperate with Immigration and Customs Enforcement (ICE) varies significantly across jurisdictions. The executive order also prioritizes execution of the immigration laws against all inadmissible and removable aliens.
Employers, particularly those with who employ large numbers of individuals with temporary work authorization, should have an action plan in place in the event of an ICE enforcement actions, also known as raids. Jackson Lewis attorneys can assist in the development of action plans and staff training.
Reinstating the “Remain in Mexico” Policy, Ending “Catch and Release,” and Eliminating the “CBP One App”
President Trump has revoked President Joe Biden’s Executive Order 13993 – Revision of Civil Immigration Enforcement Policies and Priorities, designed to prioritize the removal of individuals convicted of violent offenses while strengthening family reunification policies. President Trump has reinstated the “Remain in Mexico” policy, ended the longstanding practice of “Catch and Release,” and eliminated the CBP One App.
Remain in Mexico
Remain in Mexico, a policy implemented during the first Trump Administration, requires asylum seekers to wait in Mexico, rather than the United States, while their asylum applications are processed by U.S. immigration courts. It is unclear if Mexico will cooperate with this policy during the second Trump Administration.
Individuals in the United States with pending asylum applications are eligible to apply for work authorization once their asylum applications have been pending for at least six months. In the face of lengthy adjudication backlogs, USCIS currently issues asylum seekers work authorization documents valid for five years.
It is unclear if individuals in the United States with pending asylum applications will continue to receive work authorization documents valid for five years, or if there will be efforts to suspend work authorization for these individuals entirely. Jackson Lewis attorneys will monitor developments and provide updates.
Ending Catch and Release
“Catch and release” refers to the practice of releasing detained individuals into the community to wait for their cases to be processed by immigration courts. The term, which originated during the first Bush Administration, has been implemented during every administration since, including the first Trump Administration, due to limitations related to available detention space.
Elimination of the CBP One App
President Trump has eliminated CBP One, an app that granted appointments, based on a lottery system, to 1,450 people per day at one of eight border crossings. Individuals granted appointments were “paroled” into the United States pursuant to presidential authority.
Once in the United States, these individuals were permitted to apply for work authorization, and they often also apply for asylum. It is unclear if individuals currently in the United States pursuant to Biden-era humanitarian parole, which protects them from deportation, will be able to renew their parole and work authorization. Jackson Lewis attorneys will monitor developments and provide updates.
Other executive orders designed to enhance President Trump’s immigration agenda include:
Suspending Refugee Resettlement
President Trump has revoked President Biden’s Executive Order 14013 – Rebuilding and Enhancing Programs to Resettle Refugees and Planning for the Impact of Climate Change on Migration, designed to enhance refugee resettlement programs. President Trump has signed an executive order suspending the Refugee Resettlement Program for an initial 90 days.
Pursuant to Executive Order 14013, nearly 1,660 Afghans cleared to resettle in the United States, including family members of active-duty military personnel, have been removed from flights to the United States.
The new Executive Order directs the Department of Homeland Security and the State Department to issue a report every 90 days to enable President Trump to determine whether the program “would be in the interests of the United States.”
Clarifying the Military’s Role in “Protecting the Territorial Integrity of the United States”
This order directs the military to “repel forms of invasion including unlawful mass migration, narcotics trafficking, human smuggling and trafficking, and other criminal activities.”
Declaring a National Emergency at the Southern Border
President Trump’s declaration of a national emergency along the U.S.-Mexico border permits the Department of Defense to deploy armed forces to the border to free up resources to build a wall and erect other barriers. The Secretary of Defense is specifically directed to deploy troops and National Guardsmen to the border.
Designating Cartels as Foreign Terrorist Organizations
President Trump has signed an order designating drug cartels and other criminal organizations, including the MS-13 and Tren de Aragua gangs, which originated in El Salvador and Venezuela, respectively, as foreign terrorist organizations, or Specifically Designated Global Terrorists.
The order, which cites the Alien Enemies Act enacted more than 200 years ago, specifically directs authorities to remove members of the Tren de Agua on the ground that the group is conducting an invasion of the United States.
Denying Asylum to Individuals Apprehended Between Ports of Entry
President Trump has revoked President Biden’s Executive Order 14010 – Creating a Comprehensive Regional Framework to Address the Causes of Migration, to Manage Migration Throughout North and Central America, and to Provide Safe and Orderly Processing of Asylum Seekers at the United States Border. The order was designed to ensure that individuals’ asylum applications could be processed at the border, discouraging dangerous undocumented crossings while facilitating the entry of individuals who had waited in Mexico for prolonged periods while their asylum applications were processed, specifically those subject to the Migrant Protection Protocols instituted by the first Trump Administration. President Trump’s order renders individuals apprehended while attempting to cross the border between ports of entry ineligible for asylum, subjecting them to immediate removal from the United States without the opportunity to apply for asylum.
It is not clear what will happen to asylum seekers currently in ICE custody who were apprehended attempting to cross the border before Trump took office.
Restoring the Death Penalty When a Law Enforcement Officer Is Murdered
President Trump has signed an executive order directing the attorney general to seek the death penalty when an undocumented individual murders a law enforcement officer or commits another capital crime.
States attorney generals and district attorneys are also encouraged to pursue the death penalty when an undocumented individual murders a law enforcement officer.
President Trump has also revoked Biden-era executive orders that have not yet been replaced with President’s Trump’s own executive orders.
For example, President Trump has revoked President Biden’s Executive Order 14012 – Restoring Faith In Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans. This order established USCIS deference to prior decisions in certain cases, for instance H-1B extensions, streamlined the naturalization process, and reduced the number of Requests for Evidence and denials received by employers and individuals applying for immigration benefits. The outcome of these revocations is not yet clear.
Trump Orders Hiring Freeze and Return to Work for Federal Employees
As part of the myriad executive orders issued by President Trump in the hours after his inauguration, two focus on the number and location of federal employees.
The first is a return-to-work order, requiring all employees of the executive branch to return to work in person on a fulltime basis. The order does not provide a timeline but requires that the heads of departments and agencies “terminate remote work arrangements and require employees to return to work in-person” “as soon as practicable.” Department and agency heads may make exemptions from the return-to-work rule as they “deem necessary.” The exact impact of this order is unknown at this time.
The second is a hiring freeze of federal civilian employees in the executive branch. Any job positions that were unfilled as of 12:00 pm on January 20, 2025, can no longer be filled. No new job position may be created, unless otherwise required by law or via exemptions specifically granted by the Office of Personnel Management (OPM). This order does not apply to military personnel or any positions “related to immigration enforcement, national security, or public safety.” Further, this order does not impact collective bargaining agreements already in place. Departments and agencies are directly prohibited from contracting with third parties to avoid this order.
This hiring freeze order will stay in place for 90 days, at which point the Office of Management and Budget (OMB), with OPM and United States DOGE Service (USDS), will submit a plan to reduce the size of the government workforce. The order will then be lifted for all departments other than the Internal Revenue Service, which will be subject to the order until the Secretary of the Treasury, with OMB and USDS, lifts the hiring freeze.
President Trump’s Inauguration Day Immigration Executive Orders
During President Trump’s first hours in the White House, he issued a sweeping series of executive orders, including several regarding immigration policy: Protecting the American People Against Invasion, Securing Our Borders, and Protecting the Meaning and Value of American Citizenship (the “Immigration Orders”). These immigration-related Executive Orders come as no surprise, considering the President’s numerous campaign promises to strictly enforce immigration law and to direct an influx of resources to curb the flow of illegal immigration into the United States.
The first Immigration Order, Protecting the American People Against Invasion, is a revocation of multiple Executive Orders issued by the Biden Administration, which were aimed at initiating immigration reform. These include:
Executive Order 13993 of January 20, 2021 (Revision of Civil Immigration Enforcement Policies and Priorities), which was itself a revocation of a 2017 Trump Executive Order aimed at increasing immigration enforcement;
Executive Order 14010 of February 2, 2021 (Creating a Comprehensive Regional Framework To Address the Causes of Migration, To Manage Migration Throughout North and Central America, and To Provide Safe and Orderly Processing of Asylum Seekers at the United States Border);
Executive Order 14011 of February 2, 2021 (Establishment of Interagency Task Force on the Reunification of Families); and
Executive Order 14012 of February 2, 2021 (Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans).
The Protecting the American People Against Invasion Executive Order also states that the Attorney General, in coordination with the Secretaries of State and Homeland Security, should act to prioritize the prosecution of criminal offenses related to illegal immigration. Notably, it also includes directives to register illegal aliens, and states that fail to comply with those legal obligations are to be treated as a civil and criminal enforcement priority. The order further states that sanctuary jurisdictions who interfere with federal enforcement operations will be broadly barred from receiving federal funding.
The second immigration-related Executive Order, Securing Our Borders, directs the Secretaries of Defense and Homeland Security to prioritize the construction of physical barriers and the deployment of personnel at the southern border. It also includes the termination of the “catch-and-release” policy and parole programs, including the “Processes for Cubans, Haitians, Nicaraguans, and Venezuelans,” which allowed individuals from those countries who have a sponsor and pass a background check to work and live in the United States for up to two years under a “humanitarian parole” period.
The third immigration-related Executive Order, Protecting the Meaning and Value of American Citizenship, ends birthright citizenship, a right guaranteed under the Fourteenth Amendment, for those individuals:
(1) born to mothers who were in the U.S. illegally during their birth and whose fathers were not U.S. citizens or lawful permanent residents during their birth; and
(2) whose mother’s presence during their birth was lawful, but temporary, and whose fathers were not U.S. citizens or lawful permanent residents at the time of their birth.
While this order will be subject to challenge (Executive Orders cannot lawfully conflict with the Constitution or its Amendments), such challenges will take time, and the order is set to take effect 30 days from the date of issuance; though it is likely that the first-filed lawsuits will seek an injunction precluding enforcement. This includes a lawsuit filed by the American Civil Liberties Union (ACLU) in New Hampshire federal court on January 20, challenging the constitutionality of such an executive order restricting birthright citizenship. We can expect that other organizations will file lawsuits challenging this and other executive orders issued by President Trump. In addition, these orders are the first of what are likely to be many changes in immigration law and enforcement. As covered by today’s companion article, employers need to stay tuned and be prepared for increased audits and enforcement actions.
A New Protected Category in Illinois: Family Responsibility
Effective January 1, 2025, Illinois protects from discrimination employees who provide personal care to family members. In so doing, Illinois joins several other states that provide a cause of action to employees who believe they face discrimination on the basis of “family responsibilities.”
The Law
House Bill 2161 amends Illinois’ existing Human Rights Act, the state’s version of Title VII of the Civil Rights Act of 1964. Prior to House Bill 2161, the Illinois Human Rights Act (“IHRA”) prohibited discrimination and harassment on the basis of actual or perceived race, color, religion, national origin, ancestry, age, sex, marital status, order of protection status, disability, military status, sexual orientation, pregnancy, unfavorable discharge from military service, citizenship status, or work authorization status. Now, effective in 2025, “family responsibilities” has been added to the list of protected categories.
The law defines family responsibilities as “an employee’s actual or perceived provision of personal care to a family member.” To define “family member” and “personal care,” the law references the existing definitions in the Illinois Employee Sick Leave Act. Under that law, covered family members are an employee’s child, stepchild, spouse, domestic partner, sibling, parent, mother-in-law, father-in-law, grandchild, grandparent, or stepparent. And “personal care” includes, but is not limited to, taking a family member to doctor appointments, tending to a family member’s medical, hygiene, nutritional, or safety needs, and providing emotional support to a family member with a serious health condition who is receiving inpatient or home care.
In addition to the discrimination and harassment protection, employees with family responsibilities, as defined under the law, also have protection from retaliation if they have made a report of discrimination on the basis of family responsibilities.
To guard against potential overbreadth of the law, Illinois added a provision that states employers are not obligated to “make accommodations or modifications to reasonable workplace rules for an employee based on family responsibilities” such as those related to leave, scheduling, productivity, attendance, absenteeism, timeliness, performance, and benefits. This is true, however, so long as these workplace rules are “applied in accordance with the [IHRA].” It is difficult to discern exactly how this limitation will interact with claims for familial responsibility discrimination, but this provision does make clear that the new law does not independently obligate employers to provide accommodations for familial responsibilities akin to, for example, the interactive process for disability discrimination claims, so long as the existing workplace rules are reasonable and enforced appropriately.
Steps Employers Should Take
Illinois employers should take note of this new protection for employees with family responsibilities and consider whether their actions or policies may be construed to discriminate on the basis of familial responsibilities – whether those responsibilities are actual or perceived. The law should also remind employers nationwide that the federal American with Disabilities Act provides protection to employees on the basis of their “association” with a disabled individual, such as a close family member or friend. Moreover, other states have laws with caregiver protections like Illinois – including Alaska, Delaware, Minnesota, and New York.
Employers should stay abreast of continued developments at the state and local level regarding familial and caregiver discrimination.
California AG Issues Legal Advisories on the Application of California Law to the Use of AI
On January 13, 2025, California Attorney General Rob Bonta issued two legal advisories on the use of AI, including in the healthcare context. The first legal advisory (“AI Advisory”) advises consumers and entities about their rights and obligations under the state’s consumer protection, civil rights, competition, and data privacy laws with respect to the use of AI, while the second (“Healthcare AI Advisory”) provides guidance specific to healthcare entities about their obligations under California law regarding the use of AI.
The AI Advisory notes that businesses have existing obligations with respect to their use of AI under existing California law, including the California Consumer Privacy Act of 2018, the California Invasion of Privacy Act, the Student Online Personal information Protection Act and the Confidentiality of Medical information Act.
The AI Advisory also notes the applicability of recently passed AI laws (with effective dates in 2025 and 2026) to businesses’ use of AI, including laws providing:
disclosure requirements for businesses (e.g., regarding training data used in AI models, AI-generated telemarketing, detection tools for content created by generative AI);
contractual and consent requirements relating to the unauthorized use of likeness in the entertainment industry and other contexts;
disclosure and content removal requirements relating to the use of AI in election and campaign materials;
prohibition of and reporting requirements related to exploitative uses of AI (i.e., child pornography, nonconsensual pornography using deepfake technology, sexually explicit digital identity theft); and
supervision requirements for use of AI tools in healthcare settings.
The Healthcare AI Advisory provides guidance specific to healthcare providers, insurers, vendors, investors and other healthcare entities about their obligations with respect to their use of AI under California law, including:
health consumer protection laws (e.g., prohibition on unlawful, unfair or fraudulent business acts or practices; professional licensing standards and other prohibitions relating to the practice of medicine by non-human entities; requirements relating to management of health insurance);
anti-discrimination laws (e.g., requirements relating to protected classifications); and
patient privacy and autonomy laws (e.g., use and disclosure of patient data, confidentiality of patient data, patient consent, patient rights).
The Healthcare AI Advisory emphasizes the importance of taking proactive steps to comply with existing California law, even as additional AI laws and regulations are anticipated, given the potential risk of harm to patients, healthcare systems and public health.
President Trump’s “Rescission” Executive Order
Among the executive orders issued by President Trump on January 20, 2025, was one titled Initial Rescissions of Harmful Executive Orders and Actions (the “Order”).
The Order’s stated purpose is to retract what it describes as the “deeply unpopular” and “radical” practices of President Biden. The Order specifically calls out the “injection of diversity, equity and inclusion” and states that such measures have corrupted our institutions by replacing “hard work, merit and equality.”
With that as preface, the Order goes on to list numerous prior executive orders that it is specifically revoking. Among them are:
Executive Order 13985 of January 20, 2021 (Advancing Racial Equity and Support for Underserved Communities Through the Federal Government);
Executive Order 13988 of January 20, 2021 (Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation);
Executive Order 13993 of January 20, 2021 (Revision of Civil Immigration Enforcement Policies and Priorities);
Executive Order of 13999 of January 21, 2021 (Protecting Worker Health and Safety); Executive Order 14020 of March 8, 2021 (Establishment of the White House Gender Policy Council);
Executive Order 14031 of May 28, 2021 (Advancing Equity, Justice, and Opportunity for Asian Americans, Native Hawaiians, and Pacific Islanders);
Executive Order 14055 of November 18, 2021 (Nondisplacement of Qualified Workers under Service Contracts); and
Executive Order 14075 of June 15, 2022 (Advancing Equality for Lesbian, Gay, Bisexual, Transgender, Queer, and Intersex Individuals) among many others.
The White House also issued an Inauguration Day executive order titled Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government (“Order 2”) which states that it is the policy of the United States to recognize two sexes, male and female, as defined therein. Under Order #2, gender identity shall no longer have a place in any decision-making nor in determinations associated with access to bathrooms, programs, housing or other federally supported operations.
Pursuant to Order 2, laws and practices shall refer to only “sex” and not “gender,” and sex is deemed to be determined biologically at the time of conception: male or female. Order 2 additionally directs all agency heads to rescind all contrary guidance and to report an update on the implementation Order 2’s requirements within 120 days. In contradiction with Guidance issued by the Equal Employment Opportunity Commission, Order 2 requires all agencies to “give the terms “sex”, “male”, “female”, “men”, “women”, “boys” and “girls” the meanings set forth in section 2 of [Order 2] when interpreting or applying statutes, regulations, or guidance and in all other official agency business, documents, and communications.”
As described above, many of these now-revoked Executive Orders involve equal opportunity for individuals based on race, gender, gender identity, and sexual orientation. While these orders have been revoked, both state and federal laws continue to prohibit discrimination on the basis of these characteristics. In fact, the United States Supreme Court in 2020 recognized that Title VII protects employees from discrimination on the basis of sexual orientation and gender identity. See Bostock v. Clayton County, 140 S. Ct. 1731. As the Supreme Court specifically stated in Bostock, “The statute’s message for our cases is equally simple and momentous: An individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”
Therefore, employers should continue to enforce their policies prohibiting discrimination, including in accord with the Bostock decision.