Trump Administration Asserts Control Over Independent Agencies
The Trump administration has taken two actions that will dramatically increase White House control over federal commissions, boards, and officials that were previously considered independent. These actions are likely to impact a wide range of industries and sectors of the American economy, including energy, financial services, transportation, healthcare, and many others.
First, President Trump issued an Executive Order (EO) to increase presidential supervision over the “so-called independent agencies.” The EO, entitled “Ensuring Accountability for all Agencies,” is a fundamental change to historical practice where independent agencies like the Securities and Exchange Commission, National Labor Relations Board, and Federal Energy Regulatory Commission fell outside the White House’s regulatory oversight. This EO sets forth new requirements that would formally subject the actions taken by these and other independent agencies to White House control for the first time. The new requirements include:
Regulatory Review
Section 1 of the EO extends to “independent regulatory agencies” the pre-existing requirement that Executive Departments and agencies submit for review all proposed and final significant regulatory actions to the Office of Information and Regulatory Affairs in the Executive Office of the President, before publication in the Federal Register.
Agency Performance
Section 4 of the EO requires the Director of the Office of Management and Budget (OMB) to establish “performance standards and management objectives” for independent agency heads, and to periodically report to the president on these agencies’ progress in meeting the standards.
Funding
Section 5 of the EO requires the OMB director to “adjust” the independent regulatory agencies’ “apportionments” as necessary to advance the president’s policies and priorities. The EO contemplates that OMB may prohibit spending on particular activities.
Regular Consultation With the White House
Section 6 of the EO requires independent regulatory agencies to establish a White House liaison within each agency, who will regularly consult and coordinate with the Executive Office of the President on policies and priorities.
Singular Legal Interpretations
Section 7 provides that the president and the attorney general shall set forth the authoritative and binding interpretations of the law for the entire executive branch.
These requirements are largely aimed at “independent regulatory agencies” as defined by 44 U.S.C. 3502(5), which identifies nineteen independent agencies and includes a catchall clause for “any other similar agency designated by statute.”1 A 2019 opinion from the Justice Department’s Office of Legal Counsel notes that there are potentially several other agencies (beyond those listed) that would fall into the catchall clause, including the United States International Trade Commission.
In a related move, the administration also asserted greater authority to fire certain federal commissioners and other officials “at will” who could previously only be terminated by the president “for cause.” For nearly a century, the prevailing view was that although the president enjoys absolute authority to remove the singular head of an executive agency, Congress could condition the removal of multimember heads of “independent” boards or commissions that Congress designed to be balanced along partisan lines and in which it vested quasi-judicial and quasi-legislative power. That view dates back to the 1935 Supreme Court case of Humphrey’s Executor v. United States; however, many believe that this view may no longer be favored by the current Supreme Court.
The Solicitor General of the United States recently informed Congress that the federal government will “no longer defend the[] constitutionality” of “certain for-cause removal provisions that apply to members of multimember regulatory commissions”—specifically the Federal Trade Commission, National Labor Relations Board, and the Consumer Product Safety Commission—that were permitted under Humphrey’s Executor. Instead, the Department of Justice “intends to urge the Supreme Court to overrule [Humphrey’s Executor], which prevents the President from adequately supervising principal officers in the Executive Branch who execute the laws on the President’s behalf, and which has already been severely eroded by recent Supreme Court decisions.”
These two steps—the “Ensuring Accountability for all Agencies” EO and the Justice Department’s rejection of Humphrey’s Executor—would dramatically increase White House control over federal commissions, boards, and officials which were previously considered independent and insulated from such control.
Article II of the U.S. Constitution vests the president with somewhat opaque “executive” powers. These powers include ensuring that the laws of Congress are “faithfully executed,” which requires some degree of oversight of the officers who actually execute them. The Constitution also permits the president to “require the Opinion” of executive department heads on any subject relating to their duties. While other presidents have not required this level of consultation by independent agency heads, some view the more hands-off approach to regulatory review to be a matter of executive discretion rather than a lack of legal authority. Together, these recent steps by the Trump administration highlight the likely hallmarks of the new legal frontier—one that will test the limits of the president’s constitutional powers.
Key Takeaways
Possible Regulatory Delays While Independent Agencies Adjust to the New Normal
The increased coordination and consultation that is now expected from the White House could result—at least initially—in some delays to the normal decision-making processes of independent regulatory agencies. These agencies will now need to build in an additional layer of review to ensure that certain policy decisions are aligned with those of the administration.
Fewer Open Interagency Disputes
President Trump intends to interact with independent agency heads in the same way as other federal agency heads. Subject to congressional or judicial intervention, it is expected that independent agencies will follow the White House’s lead, particularly given that President Trump has asserted authority to terminate board and commission members without cause. This will likely result in fewer—if any—open interagency disputes, like that which arose in the Bostock case, where the Justice Department and Equal Employment Opportunity Commission took conflicting legal positions on the scope of Title VII. The White House will aim to resolve more policy disputes in the interagency process, perhaps without the regulated community even learning of such disputes.
The Likely Rise of Executive Deference Arguments
Look for the White House to argue that this EO is entitled to deference from the courts, as it relates to the president’s core constitutional powers. While the Supreme Court’s decision in Loper Bright Enterprises v. Raimondo put an end to Chevron deference for agency interpretations of the law, it did not address a different strain of deference where core presidential power is concerned. That form of deference—traditionally invoked to support the executive branch’s preferred national security policies—may well be increasingly invoked by the president and attorney general. President Trump may also assert that the EO should take precedence over existing regulations to the contrary, as the administration has maintained in other contexts.
Increased Opportunities for Engagement
In making these changes, the White House’s stated goal is to increase the public accountability of agencies that have historically exercised significant regulatory control over the American people. By requiring these agencies to coordinate with the White House at an unprecedented level, there may now also be an increased opportunity for regulated parties to be heard on important policy matters.
Footnotes
1 Notwithstanding that definition, the EO explicitly does not apply to the Board of Governors of the Federal Reserve System or to the Federal Open Market Committee in its conduct of monetary policy; it does apply to the Board of Governors’ supervision and regulation of financial institutions.
Trump Administration Rescinds Council on Environmental Quality’s Guidelines, Creating Widespread Uncertainty for the National Environmental Policy Act Compliance by Energy and Infrastructure Projects
On February 19, 2025, the Trump Administration issued an Interim Final Rule rescinding the Council on Environmental Quality’s (CEQ’s) regulations setting forth the requirements for compliance with the National Environmental Policy Act (NEPA). The validity of the CEQ’s NEPA regulations has been cast into substantial doubt by two recent court cases and two of President Trump’s executive orders. Publication of that rule in the Federal Register on February 25 sets in motion the elimination of the CEQ’s NEPA regulations as the binding standards for NEPA compliance, a role they have served since 1978. Without these standards, federal agencies and project developers will need to base their environmental reviews on the vague provisions of the statute. Unless Congress steps in to revise the statute itself, this change creates significant uncertainty for major infrastructure projects and project developers.
Why NEPA Matters
Signed by President Nixon on New Year’s Day in 1970, NEPA requires federal agencies to review the environmental impact of discretionary actions (such as issuing permits). In 1978, in response to an executive order issued by President Carter, the Council on Environmental Quality issued regulations that require all federal agencies to complete an environmental impact statement, an environmental assessment, or to determine that the action qualifies for a “categorical exclusion.”
Compliance with NEPA can create significant uncertainty for projects. Preparation of an environmental impact statement can require years to complete, impacting project timelines. Challenges to the sufficiency of NEPA review are common and can add further years of uncertainty to energy and infrastructure projects.
Recent NEPA Decisions, Executive Orders, and the Interim Final Rule
In the past three months, two court rulings and two executive orders preceded repeal of the CEQ’s NEPA regulations.
On November 12, 2024, the D.C. Circuit Court of Appeals ruled in Marin Audubon Society v. Federal Aviation Authority that the CEQ does not have rulemaking authority and therefore, the CEQ’s NEPA regulations were promulgated without Congressional authorization. The court denied requests for en banc review on January 31, 2025. On February 3, 2025, the District Court for the District of North Dakota decided Iowa v. CEQ, adopting the reasoning of Marin Audubon Society and concluding that the 2024 CEQ NEPA regulations were issued without authority and therefore invalid.
In between those two decisions, on January 20, 2025, the Trump Administration issued Executive Order 14154, revoked President Carter’s executive order that first directed CEQ to issue binding regulations implementing NEPA and directed the CEQ to take action within 30 days to propose recission of the CEQ’s NEPA regulations.
Acting within the required 30 days, on February 19 the CEQ issued the Interim Final Rule proposing the rescission of the CEQ’s NEPA regulations. The Interim Final Rule cites President Trump’s Executive Order 14154 as well as the decisions in Marin Audubon Society and Iowa v. CEQ as grounds for the decision. That Interim Final Order was accompanied by a memorandum, directing federal agencies to “[c]onsider voluntarily relying on [the soon-to-be-rescinded] regulations in completing ongoing NEPA reviews or defending against” challenges to project, and not delaying ongoing NEPA reviews while the NEPA procedures are updated.
Significant Uncertainty Ahead
Unless the Interim Final Rule and the decision in Iowa v. CEQ are overturned on judicial review or Congress takes action to clarify the law, the end of the CEQ’s NEPA regulations will lead to significant legal uncertainty for any project that requires federal approvals.
In light of the Interim Final Rule, federal agencies lack clear guidance regarding whether to voluntarily follow the 2020 CEQ NEPA regulations, or whether to rely on the statutory text and any agency-specific NEPA regulations as the basis for their NEPA reviews. The “voluntary” nature of this directive, as well as differences between the level of detail in individual agency NEPA regulations, could result in inconsistent approaches across agencies.
That uncertainty will provide additional grounds for challenges to forthcoming NEPA reviews through litigation, especially if the validity of the Interim Final Rule itself faces a protracted challenge in federal court. Until federal courts establish a new “doctrine” for sufficiency of NEPA review in the post-CEQ NEPA regulations world, the future for NEPA lawsuits will likely be fact- and court-specific, potentially leading to variation between circuits and greater uncertainty for infrastructure projects.
NLRB’s General Counsel Initiatives Trumped: Here We Go Again with Dramatic Shifts in Labor Law
As the mainstream media has reported, President Trump is firing everyone he can (and maybe some he can’t) at the National Labor Relations Board. On day one, the president fired the NLRB’s general counsel, Jennifer Abruzzo, a former union lawyer who President Biden appointed in July 2021. Abruzzo had been known for her aggressive agency-directive “memos” sending the NLRB into uncharted territory in favor of employee and union rights. These memos covered a multitude of topics, including expansion of NLRB remedies, prohibition of employer-led workplace meetings, outlawing noncompete agreements, deeming student-athletes employees under the labor law, recommending aggressive use of preliminary injunctive relief, and many others. We previously blogged about many of the Abruzzo initiatives here. With Abruzzo’s discharge, and the appointment of new Acting General Counsel William Cowen, most of these extreme memos from Abruzzo’s term have gone away. So, the shift back to a more employer-friendly NLRB is underway.
Out with the Old . . .
On February 14, 2025, Cowen issued Memorandum 25-05. This memo states very succinctly:
“Over the past few years, our dedicated and talented staff have worked diligently to process an ever-increasing workload. Notwithstanding these efforts, we have seen our backlog of cases grow to the point where it is no longer sustainable. The unfortunate truth is that if we attempt to accomplish everything, we risk accomplishing nothing.”
With this stated justification, Cowen “determined that the following actions are warranted.” Among the Abruzzo memos rescinded are (and these are just a few of them):
Statutory Rights of Players at Academic Institutions (Student-Athletes) Under the National Labor Relations Act
Electronic Monitoring and Algorithmic Management of Employees Interfering with the Exercise of Section 7 Rights
Non-Compete Agreements that Violate the National Labor Relations Act
Remedying the Harmful Effects of Non-Compete and “Stay-or-Pay” Provisions that Violate the National Labor Relations Act
Securing Full Remedies for All Victims of Unlawful Conduct
Ensuring Settlement Agreements Adequately Address the Public Rights at Issue in the Underlying Unfair Labor Practice Allegations
Section 10(j) Injunctive Relief
Guidance on the Propriety of Mail Ballot Elections
The Right to Refrain from Captive Audience and Other Mandatory Meetings
Ensuring Rights and Remedies for Immigrant Workers Under the NLRA
Goals for Initial Unfair Labor Practice Investigations
Undoubtedly, the new NLRB will address several other labor-relations issues. However, some of these other issues are not governed by general counsel memos; they are governed by NLRB decisions themselves. For example, the new card-check union recognition procedure and the ban on employer-led workplace meetings will have to be addressed in legal cases separately from these memo rescissions.
The New to Be Determined . . .
We will have to stay tuned for these developments. As of now, the NLRB basically is non-functional because of a shortage of confirmed members. Bringing the NLRB back to full operating status could take a year or more.
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The Impact of AI Regulations on Insurtech
Insurtech is steeped in artificial intelligence (AI), leveraging the technology to improve insurance marketing, sales, underwriting, claims processing, fraud detection and more. Insurtech companies are likely only scratching the surface of what is possible in these areas. In parallel, the regulation of AI is expected to create additional legal considerations at each step of the design, deployment and operation of AI systems working in these contexts.
Legal Considerations and AI Exposure
As with data privacy regulations, the answer to the question “Which AI laws apply?” is highly fact-specific and often dependent on the model’s exposure or data input. Applicable laws tend to trigger based on the types of data or location of the individuals whose data is leveraged in training the models rather than the location of the designer or deployer. As a result, unless a model’s use is strictly narrowed to a single jurisdiction, there is likely to be exposure to several overlapping regulations (in addition to data privacy concerns) impacting the design and deployment of an Insurtech AI model.
Managing Regulatory Risk in AI Design
Given this complexity, the breadth of an Insurtech AI model’s exposure can be an important threshold design consideration. Companies should adequately assess the level of risk from the perspective of limiting unnecessary regulatory oversight or creating the potential for regulatory liabilities, such as penalties or fines. For instance, an Insurtech company leveraging AI should consider if the model in question is intended to be used for domestic insurance matters only and if there is value in leveraging data related to international data subjects. Taking steps to ensure that the model has no exposure to international data subjects can limit the application of extraterritorial, international laws governing AI and minimize the potential risk of leveraging an AI solution. On the other hand, if exposure to the broadest possible data is desirable from an operations standpoint, for instance, to augment training data, companies need to be aware of the legal ramifications of such decisions before making them.
Recent State-Level AI Legislation
In 2024, several U.S. states passed AI laws governing the technology’s use, several of which can impact Insurtech developers and deployers. Notably, state-level AI bills are not uniform. These laws range from comprehensive regulatory frameworks, such as Colorado’s Artificial Intelligence Act, to narrower disclosure-based laws such as California’s AB 2013, which will require AI developers to publicly post documentation detailing their model’s training data. Several additional bills relating to AI regulation are already pending in 2025, including:
Massachusetts’ HD 3750: Would require health insurers to disclose the AI use including, but not limited to, in the claims review process and submit annual reports regarding training sets as well as an attestation regarding bias minimization.
Virginia’s HB 2094: Known as the High-Risk Artificial Intelligence Developer and Deployer Act, would require the implementation of a risk management policy and program for “high-risk artificial intelligence systems,” defined to include “any artificial intelligence system that is specifically intended to autonomously make, or be a substantial factor in making, a consequential decision (subject to certain exceptions).
Illinois’ HB 3506: Among other things, this bill would require developers to publish risk assessment reports every 90 days and to complete annual third-party audits.
The Growing Importance of Compliance
With the federal government’s evident step back in pursuing an overarching AI regulation, businesses can expect state authorities to take the lead in AI regulation and enforcement. Given the broad and often consequential use of AI in the Insurtech context, and the expectation that this use will only increase over time given its utility, businesses in this space are advised to keep a close watch on current and pending AI laws to ensure compliance. Non-compliance can raise exposure not only to state regulators tasked with enforcing these regulations but also potentially to direct consumer lawsuits. As noted in our prior advisory, being well-positioned for compliance is also imperative for the market from a transactional perspective.
The Insurtech space is growing in parallel with the expanding patchwork of U.S. AI regulations. Prudent growth in the industry requires awareness of the associated legal dynamics, including emerging regulatory concepts across the nation.
An Executive Branch for the People, by the People: What the New Administration’s Executive Orders Mean for an Independent CPSC
While independent regulatory agencies, like the Consumer Product Safety Commission (CPSC or the Commission), have typically considered themselves exempt from executive orders, recent events indicate the CPSC is likely not free from the Trump Administration’s push for an Executive Branch for the people, by the people. Statements from acting Commission leadership seemingly indicate a willingness to work with President Trump, though the CPSC has taken only limited actions to implement the many directives ordered by the President to date. Stakeholders in the consumer products industry should be forewarned that their dealings with the Commission and its anticipated regulatory agenda could soon change, though they should continue to take steps to prepare for the implementation of key new rules until the Commission provides further guidance.
An Executive Branch for the People, by the People
In the Consumer Product Safety Act (CPSA), Congress established the CPSC and directed the Commission to operate with independence “to protect the public against unreasonable risks of injuries and deaths associated with consumer products.” Yet, the Trump Administration’s recent actions first, attempting to dismantle two other independent agencies, the U.S. Agency for International Development (USAID) and Consumer Financial Protection Bureau (CFPB), and subsequently issuing a yet unnumbered executive order, entitled “Ensuring Accountability for All Agencies,” make clear that the new administration will seek to make independent agencies less independent. Indeed, the February 18, 2025 Executive Order criticizes the very existence of independent regulatory agencies and laments the lack of “sufficient accountability to the President, and through him, to the American people.” The Order seeks to give the President broad oversight over independent agencies, requiring submission of major regulations to the White House Office of Management and Budget (OMB) for review. Further, the Order seeks to require independent agencies to hire a White House liaison and bars such agencies from taking legal positions that differ from any taken by the President or Attorney General. Such directives create an inherent risk of conflict with the CPSC’s stated mission and congressionally mandated independence in the CPSA. That said, recent communications from new Commission leadership indicate a potential willingness to cooperate—at least for the time being—either through express agreement or by trying to lay low.
On January 21, 2025, the day after President Trump took office and issued a flurry of new executive orders, as is customary when the political party of the President changes, Alex Hoehn-Saric, a 2021 Biden appointee, stepped down as Chair of the Commission. The Commission then announced Peter Feldman, a 2018 Trump appointee, as the acting chair the following day. Acting Chair Feldman has since issued three statements: The first statement, issued on January 22, 2025, announced promotions and appointments among key senior staff. The second statement, issued on January 24, 2025, announced the termination of all diversity, equity and inclusion (DEI) programs and activities, in line with Executive Order No. 14148, which revoked a series of prior Executive Orders implementing DEI initiatives, and Executive Order No. 14151, “Ending Radical and Wasteful Government DEI Programs and Preferences,” among other executive orders. See President Trump’s “Rescission” Executive Order (Jan. 21, 2025). The third statement, issued on February 4, 2025, “applaud[ed] President Trump’s bold action to revoke the de minimis privilege for all imports from China,”[1] stating the Commission “has long been concerned about the enforcement challenges when Chinese firms, with little or no U.S. presence, distribute consumer products under the de minimis provision,” signaling the CPSC’s support of Executive Order No. 14195 and Executive Order No. 14200, ordered February 1, 2025 and February 5, 2025 respectively.
Notably, despite its prior availability, the CPSC’s Operating Plan for Fiscal Year 2025, which laid out the Commission’s intended direction and priorities, including its DEI programs and regulatory priorities, is no longer available on its website as part of the Commission’s overall website content review pursuant to recent Executive Orders.
Other Potentially Relevant Orders
On January 20, 2025, and in the days since, President Trump signed a flurry of other executive orders, which could be of relevance to a less independent CPSC. Among them are the following three Orders:
On January 20, 2025, President Trump issued an Order that called for a “regulatory freeze” and had three main directives instructing federal agencies: (1) not to propose or issue any new rules “until a department or agency head appointed or designated by the President after noon on January 20, 2025, reviews and approves the rule”; (2) immediately withdraw any new rules sent but not yet published in the Federal Register so that they can be reviewed and approved per the first directive; and (3) “consider” a 60 day postponement for the effective date of any rules that have been published in the Federal Register or have not taken effect and further “consider” opening a comment period for any such rules.
Also on January 20, 2025, President Trump signed Executive Order 14192, “Unleashing Prosperity Through Deregulation,” which launches a “massive 10-to-1 deregulation initiative” requiring agencies to “identify at least 10 existing rules, regulations, or guidance documents to be repealed” whenever they issue a new rule, regulation, or guidance.
On February 11, 2015, President Trump issued an Order implementing his “Department of Government Efficiency” (DOGE) workforce optimization initiative. Among other things, the Order directs an approximately 75% reduction in staff (indicating that for every one staffer hired, four must be eliminated). The Order also directs Agency Heads to, within 30 days, submit “a report that identifies any statutes that establish the agency, or subcomponents of the agency, as statutorily required entities . . . and whether the agency or any of its subcomponents should be eliminated or consolidated.” Notably, the Order excludes public safety functions, which would seem to speak directly to the CPSC’s stated mission, although that same argument could be made about the Federal Emergency Management Agency (FEMA), which has drawn President Trump’s recent attention (and criticism).
While the CPSC’s relatively small size and budget should not place it high on the list for the same deregulation initiatives and staff cuts as other agencies, there is no telling what might happen in the coming months.
Next Steps
Though we do not anticipate the CPSC’s regulatory agenda as it relates to new e-filing requirements for certificates of compliance, e-bikes, and certain infant products to change at this time, based on the CPSC’s continued focus on and discussion of these initiatives at this year’s International Consumer Product Health and Safety Organization (ICPHSO) Annual Symposium, it is anticipated that the Commission will reconsider the remainder of its regulatory agenda and priorities.
Stakeholders should continue preparations for the implementation of the new e-filing requirements for certificates of compliance which go into effect July 8, 2026 for products not imported into a Free Trade Zone (FTZ), and July 8, 2027 for products imported into an FTZ until the CPSC provides contrary guidance or otherwise indicates a delay or freeze to this regulation.
The CPSC’s responses to Executive Orders and the Trump Administration’s directives are rapidly evolving. With this continued uncertainty, stakeholders should continue monitoring for updates from the Commission. Stakeholders should also continue their preparations for the implementation of major regulations until the CPSC issues further guidance.
[1] The referenced “de minimis privilege” refers to the current exemption under the Tariff Act (19 U.S.C. § 1321) for certain shipments valued below $800, which permits the importation of such shipments without filing otherwise required paperwork concerning the product and exempts such products from inspection at U.S. points of entry. The de minimis shipment exemption is limited to shipments with an aggregate value less than $800 per day by a single importer, and is generally taken advantage of by international e-commerce retailers.
Potential Impact of the Executive Orders on EB-5 Investors
The Trump administration issued several executive orders (EOs) in the first week following the inauguration. Many of the EOs for immigration focus on enhancing security measures relating to foreign nationals, including scrutiny of nonimmigrant and immigrant visa applications and enhanced background checks for foreign nationals. At present, no EOs specifically relate to the EB-5 Immigrant Investor Program, but the enhanced scrutiny the newly issued EOs require may impact EB-5 investors.
EB-5 investors may experience increased scrutiny during Form I-526 or Form I-526E petition adjudication. A critical part of the EB-5 petition process is documenting the lawful funding source the investor used to make the qualifying EB-5 investment. The USCIS Immigrant Investor Program Office may conduct additional background checks on all individuals involved in the funding source, including the investor, his or her spouse, any gift or, and/or any individual or non-bank organization that provides a loan to the investor.
Moreover, EB-5 investors may experience enhanced background checks for EB-5 immigrant visas at U.S. embassies and consulates worldwide. The EO “Protecting the United States from Foreign Terrorists and Other National Security and Public Safety Threats,” tasks government agencies with reviewing all visa programs to prevent hostile state and nonstate actors from entering the United States. This EO likely will result in enhanced background checks of EB-5 investors applying for immigrant visas abroad or for adjustment of status in the United States. Investors born in or who are citizens of countries with a totalitarian or Communist Party-controlled government likely will receive increased scrutiny to determine if they have meaningful membership in the Communist Party. Both USCIS and foreign consular officers likely will also closely examine investors’ memberships in associations or other organizations.
An additional EO, “Guaranteeing the States Protection Against Invasion,” imposes vetting requirements on immigrants to the United States. This EO might result in enhanced medical and security requirements. The EO “Protecting the American People Against Invasion” may also result in a more stringent application of the “public charge” ground of inadmissibility. EB-5 investors are subject to the “public charge” ground of inadmissibility, and they must prove to the USCIS or the consular officer’s satisfaction that they are able to support themselves in the United States and are not likely to take public benefits after being granted permanent residence. USCIS or the State Department may require applicants to submit evidence to prove they would not be a public charge. The administration may expand the list of federal public benefits that can be considered in making a public charge determination. In the I-829 petition adjudication process, USCIS may request evidence on federal public benefits applicants receive.
The administration’s EOs do not change the EB-5 Program, which Congress extended through Sept. 30, 2027. The EOs generally do not change the EB-5 Program’s rules or eligibility requirements, and applicants from all nations can apply. USCIS and the State Department may implement additional background checks on EB-5 investors at the I-526 or I-526E petition stage, the immigrant visa stage, the adjustment of status stage, and the I-829 petition stage.
USCIS Memo Pauses TPS, Asylum, EAD, Other Applications from Parolees
As confirmed by several news outlets and the American Immigration Lawyers’ Association, acting U.S. Citizen and Immigration Services Director Andrew Davidson issued an internal memorandum Feb. 14, 2025, ordering an agency-wide “administrative pause” on all “pending benefit requests” filed by applicants paroled through a parole program, including those seeking Temporary Protected Status (TPS) for migrants from crisis-stricken countries like Haiti, Ukraine, and Venezuela; asylum, which allows those fleeing persecution to gain a permanent safe haven in the United States; Employment Authorization Documents; and “green cards” or permanent residency processes.
Programs impacted:
Uniting for Ukraine: This program was set up under the Biden administration for displaced Ukrainians outside of the United States. Roughly 240,000 Ukrainians with American sponsors arrived in the United States under that process before President Donald Trump took office.
Cuban Haitian Nicaragua and Venezuela (CHNV) Parole Program: Through the CHNV Parole Program, over 530,000 Cubans, Haitians, Nicaraguans, and Venezuelans have lawfully and safely entered the United States with the help of U.S.-based sponsors.
Family Reunification Parole Programs: These programs permitted some Colombians, Ecuadorians, Central Americans, Haitians, and Cubans with American relatives to come to the United States to wait for a family-based green card to become available.
TPS for migrants from crisis-stricken countries; asylum, which allows those fleeing persecution to remain in the United States; and green cards for individuals seeing U.S. permanent residency.
USCIS cited fraud, public safety, and national security concerns that are not being properly flagged in adjudicative systems as reasons for the administrative pause.
According to the memo, the application freeze will remain in place indefinitely while government officials work to identify potential cases of fraud and enhance vetting procedures to mitigate concerns related to national security and public safety.
Preliminary Injunction Granted Related to DEI-Related Executive Orders—Takeaways for Government Contractors
In the four weeks since President Trump issued Executive Order (“EO”) 14151 (“Ending Radical and Wasteful Government DEI Programs and Preferencing”) and EO 14173 (“Ending Illegal Discrimination and Restoring Merit-Based Opportunity”), virtually all sectors of American society have been scrambling to understand their compliance obligations and seeking to reduce legal risk. Businesses have taken a range of approaches, from preparing to defend their diversity, equity, and inclusion (“DEI”) commitments to removing public-facing references to DEI. Some government contractors have received DEI-related certifications required by EO 14173, which implicate enforcement under the False Claims Act (“FCA”).
In a significant new development, on February 21, 2025, the United States District Court for the District of Maryland issued a nationwide preliminary injunction against both EO 14151 and EO 14173. Here’s what federal contractors need to know.
Case Background
The plaintiffs allege that EO 14151 violates the Constitution’s spending clause by directing the termination of “equity-related” contracts (Count I); that Sec. 2 of EO 14151 and Sec. 4 of EO 14173 are unconstitutionally vague (Counts II and III); that Sections 3 and 4 of EO 14173 violate the First Amendment’s Free Speech Clause (Counts IV and V, ); and that EO 14173 violates the constitutional separation of powers principle (Count VI).
The Challenged Provisions
The Court generally describes the EOs’ “Challenged Provisions” as follows:
The “Termination Provision” of EO 14151 directs executive agencies to terminate “equity-related” grants and contracts;
The “Certification Provision” of EO 14173 directs executive agencies to require a new contract certification, enforceable through the FCA, stating that the contractor does not promotea DEIprogram that violates applicable federal anti-discrimination laws; and
The “Enforcement Threat Provision” of EO 14173 directs the Attorney General (“AG”) to encourage the private sector to end illegal discrimination and preferences, including DEI, and to have agencies identify up to nine targets for potential civil compliance investigations.
The following analysis focuses on the Certification and the Enforcement Threat challenges, which are the most salient for government contractors.
1. Likelihood of Success on the Merits
The Court found that Plaintiffs showed injury from the Certification and Enforcement Threat Provisions because Plaintiffs “reasonably expect that they will be forced to either restrict their legal activities and expression that are arguably related to DEI, or forgo federal funding altogether.” (Memorandum of Opinion (“Mem. of Op.”) at 25.)
(a) First Amendment Rights of Contractors
The Court specifically addressed the First Amendment rights of federal contractors, reiterating that in Board of Cnty. Com’rs, Wabaunsee Cnty., Kan. v. Umbehr the Supreme Court held that the government does not have “carte blanche to terminate independent contractors for exercising First Amendment rights.” 518 U.S. 668, 679 (1996). Although the government has some ability to restrict a government contractor’s free speech rights, Fulton v. City of Philadelphia, Pennsylvania, 593 U.S. 522, 535 (2021), the First Amendment prohibits the government from “seek[ing] to leverage funding to regulate speech outside the contours of the program itself.” Agency for Int’l Dev. v. All. for Open Soc’y Int’l, Inc., 570 U.S. 205, 214-15 (2013) (“AID”). Additionally, the government may not terminate government contracts “because of the[] [contractors’ or grantees’] speech on matters of public concern.” Wabaunsee County, 518 U.S. at 675.
The Court also found Plaintiffs are likely to succeed because the Certification “constitutes a content-based restriction on the speech rights of federal contractors…” and applies to all of a contractor’s work, whether or not funded by the government. (Mem. of Op. at 25.)
The Court noted that during the hearing, the government failed to satisfactorily address hypotheticals about DEI implementation by federal contractors and thus, “[b]ecause even the government does not know what constitutes DEI-related speech that violates federal anti-discrimination laws, Plaintiffs have easily shown a likelihood that they will prevail in proving that the Certification Provision operates as a content-based prior restraint on their speech, and likely will also prevail in showing that the Certification operates as a facially viewpoint-discriminatory order as well. The speech-chilling effect of the Certification Provision is particularly obvious given the vagueness of the [EOs]…”, and that “federal contractors… have shown they are unable to know which of their DEI programs (if any) violate federal anti-discrimination laws, and are highly likely to chill their own speech—to self-censor, and reasonably so—because of the Certification Provision. Indeed, the Certification Provision was likely designed to induce, and certainly has been shown to have the effect of inducing, federal contractors… to apply an overinclusive definition of illegal DEI to avoid risking liability. This is exactly what AID prohibits…” (Mem. of Op. at 47.)
(b) The FCA
The Court also addressed the precarious situation of contractors facing the Certification Requirement, noting that the vagueness of EO 14173 puts them “in a position to have to guess whether they are in compliance” and that they are “threatened with False Claims Act liability if they miss the mark. Such escalation of consequences dramatically raises the stakes, and by extension dramatically expands the degree of injury to interests protected by the Fifth Amendment.” (Mem. of Op. at 54-55.)
2. Irreparable Harm
The Court found that Plaintiffs are suffering irreparable harm due to a chilling effect on their speech and a potential loss of federal funding. The Court noted: “…the Challenged Provisions strip Plaintiffs of the ability to know what the government might now consider lawful or unlawful. There have been 60 years of statutes, regulations, and case law developed since the Civil Rights Act of 1964. The Challenged Provisions strip away much of the prior executive branch guidance, and then threaten the loss or condition the receipt of federal funds, and also threaten civil enforcement actions—some backed by the possibility of treble damages—for violations. And in so doing, they threaten to punish prior expressions of protected speech, and chill future expressions of protected speech.” (Mem. of Op. at 56-57.)
3. Balance of the Equities
Here, the Court approvingly cited the Plaintiffs’ statement that “[e]fforts to foster inclusion have been widespread and uncontroversially legal for decades” (Mem. of Op. at 59), and stated that the “the status quo must be maintained while Plaintiffs and the government litigate the claims asserted in this case. The balance of equities tips strongly in Plaintiffs’ favor.” (Mem. of Op. at 60.)
Implications for Federal Government Contractors
The injunction has several immediate implications for federal government contractors:
1. Contractors no longer face the immediate threat of termination due to undefined “equity-related” activities.
2. Agencies cannot require contractors to make certifications pursuant to the Certification Provision.
3. The government may not bring an FCA suit or other enforcement action based on the Enforcement Threat Provision, temporarily reducing the risk of government-initiated FCA action.
4. The injunction does not apply to the requirement under EO 14173 that the AG submit a report in coordination with the heads of relevant agencies that identifies key sectors of concern within each agency’s jurisdiction, and each sector’s “most egregious DEI practitioners,” as well as up to nine targets for potential civil compliance investigations. We therefore expect the AG to continue preparing this report—which is what was prompting some contractors to reconsider the extent of their public commitments to DEI in the first place. The AG’s report is due May 21, 2025.
Moving Forward
Contractors should consider the following steps in light of the injunction:
Document DEI-Related Interactions with the Government: Contractors should document any communications or actions taken by federal agencies that might contravene the injunction.
Stay Informed: Monitor further legal developments, both in this case and in a similar one filed February 19, 2025, in the United States District Court for the District of Columbia.
Consult Legal Counsel: Contractors should consult counsel regarding existing DEI programs, including whether and how to amend such programs given the changing legal landscape.
Conclusion
The preliminary injunction is an initial victory for federal contractors that provides immediate relief from the threat of losing federal funding for not signing a DEI certification, the threat of government-initiated FCA enforcement, and the infringement on DEI-related speech.
President Trump Signals Friendly Perspective on Non-Compete Agreements and Begins Revamp of National Labor Relations Board Policy
On February 14, 2025, the Trump Administration started its makeover of existing National Labor Relations Board (“NLRB”) policies by rescinding several Biden-era General Counsel Memoranda. These rescissions are a clear next step in revamping the NLRB, coming on the heels of the NLRB General Counsel’s, Jennifer Abruzzo, termination on January 27, 2025. Although not unexpected, the rescissions are an important development for all employers that use restrictive covenants and severance agreements. Among the rescinded Memoranda are:
GC 23-05: SEVERANCE AGREEMENTS
This Memorandum sought to expand the Board’s McLaren Macomb decision that ruled that most standard confidentiality and non-disparagement clauses in severance agreements are unlawful under the NLRA. Under this Memorandum, the NLRB “clarified” that: (a) confidentiality provisions are unlawful unless they were “narrowly-tailored to restrict the dissemination of proprietary or trade secret information for a period of time based on legitimate business justifications [that] may be considered lawful”; (b) non-disparagement provisions have to be “limited to employee statements about the employer that meet the definition of defamation as being maliciously untrue, such that they are made with knowledge of their falsity or with reckless disregard for their truth or falsity”; (c) “duty to cooperate” provisions that require an employee to cooperate with company investigations must be closely scrutinized and are generally unlawful; and (d) savings clauses typically do not cure what the NLRB considers to be an unlawfully overbroad restriction.
GC 23-08 (NON-COMPETE AGREEMENTS) AND GC 25-01 (REMEDIES FOR NON-COMPETE “STAY OR PAY” CLAUSES)
Through GC 23-08, the NLRB took the position that non-compete agreements given to non-managerial employees generally violate the NLRA. GC 25-01 sought to expand financial remedies for employees who were subject to non-compete and “stay or pay” agreements, not only nullifying them, but providing a means of seeking potentially significant damages against employers that improperly used non-compete and “stay or pay” agreements.
KEY TAKEAWAYS
There are two basic takeaways from this recent action. First, the Trump Administration’s rescinding the two Memoranda covering non-compete agreements signals that it will abandon the Biden Administration’s attempts to invalidate non-compete agreements. Recall that a more comprehensive Federal Trade Commission Rule that generally banned all non-compete agreements was struck down by a federal court in August, 2024. That decision will almost definitely stand, and non-competes will be governed by state law.
Second, there remains some risk in using confidentiality and non-disparagement provisions in severance agreements, particularly for non-managerial employees. The McLaren Macomb ruling that most confidentiality and non-disparagement provisions are invalid is still the law until the NLRB itself (not just its General Counsel) changes the rule. The NLRB currently only has two members (out of five) so the Trump Administration cannot change the law or fully implement its labor agenda until the Board positions are filled.
Healthcare Preview for the Week of: February 24, 2025 [Podcast]
Can the House Pass a Budget Resolution This Week?
The House is back from recess, so both chambers of Congress are in session this week (although the House is out again on Friday).
With 18 days left to pass a budget before the March 14, 2025, deadline, the focus this week is on whether the House can pass a budget resolution. There may be a budget resolution vote on Tuesday evening, but this timing could shift if Republicans are not able to get enough support. House Republicans have a 218 – 215 majority, meaning they can only afford to lose one vote.
President Trump has endorsed having “one big, beautiful bill” that includes a permanent extension of the 2017 tax cuts, as opposed to the Senate’s approach of two separate reconciliation bills.
On February 13, 2025, the House Budget Committee approved a budget seeking at least $880 billion in mandatory spending cuts to programs overseen by the House Energy and Commerce Committee. The Medicaid program is a likely target to provide a significant portion of those savings. Some Republicans have started to raise concerns about the level of potential funding cuts to Medicaid because of the impact such cuts would have on constituents and providers in their districts and across their states.
Outside of budget discussions, the House Energy and Commerce Health Subcommittee will hold a hearing on pharmacy benefit managers. The Senate will hold hearings for several of President Trump’s cabinet nominees, including nominees for deputy secretary of the US Department of Homeland Security, deputy director of the Office of Management and Budget, director of the Office of Science and Technology Policy, and federal trade commissioner. Senate committees will also hold hearings on combatting the opioid epidemic and the HALT Fentanyl Act.
The Medicaid and CHIP Payment and Access Committee also meets this week and will cover topics such as state supplemental and directed payments, substance use disorder, and the prior authorization process.
Today’s Podcast
In this week’s Healthcare Preview podcast, Debbie Curtis and Rodney Whitlock join Maddie News to discuss the status of the reconciliation process in the House, including the debate on Medicaid, and the looming March 14 government funding deadline.
Medicaid in the Crosshairs What Restructuring Could Mean for States, Providers, and Beneficiaries
As budget negotiations heat up in Washington, Medicaid has emerged as a key target for cost-cutting measures. With policymakers looking to trim federal spending while maintaining commitments to Social Security and Medicare, Medicaid is one of the few major programs left on the table. Proposals floating around Capitol Hill include everything from block grants and per capita caps to stricter eligibility requirements and reductions in federal matching rates. These potential changes could fundamentally alter the structure of Medicaid, shifting more financial responsibility to states and reshaping access to care for millions of Americans.
Waivers: A Policy Battleground
One of the most immediate levers for Medicaid reform lies in the use of Section 1115 waivers, which allow states to test innovative ways to deliver and finance care. Historically, waivers have been used to expand coverage, integrate social determinants of health into Medicaid, and experiment with new payment models. Under the Biden administration, states received waivers for initiatives like continuous eligibility for young children, health-related social needs interventions, and pre-release Medicaid coverage for individuals exiting incarceration. Many of these waivers are now under review, and the current administration may opt to roll them back, cutting off funding for programs designed to improve access and reduce health disparities.
At the same time, some states are eyeing waivers as a vehicle for more restrictive Medicaid policies, including work requirements and premium obligations for low-income enrollees. These policies, which were a hallmark of the first Trump administration, could return in full force, despite previous legal challenges. While work requirements are often framed as a way to encourage self-sufficiency, past attempts have led to significant coverage losses due to administrative complexity and reporting barriers. Georgia remains the only state actively implementing work requirements today, but other states could quickly follow suit if federal leadership signals support for these policies.
Federal Financing: More State Burden, Fewer Federal Dollars
The core structure of Medicaid financing—a federal-state matching system—has long provided states with a reliable source of funding for healthcare. However, a range of proposals could shift more of the financial burden to states.
One option is reducing the enhanced federal match for the Affordable Care Act expansion population, which currently stands at 90%. Rolling it back to standard Medicaid match rates would force expansion states to pick up a larger share of the tab, potentially leading some to scale back or even withdraw from expansion altogether.
Another major consideration is the reduction or elimination of provider taxes and intergovernmental transfers, which many states rely on to fund Medicaid. Provider taxes currently help states generate the non-federal share of Medicaid dollars, but restrictions on these financing tools could leave states scrambling to fill budget gaps. Without new revenue sources, states may have no choice but to cut provider rates, reduce optional benefits, or impose enrollment caps.
The Ripple Effect on Providers and Beneficiaries
The impact of Medicaid restructuring would extend beyond state governments. Providers—particularly safety-net hospitals, nursing homes, and home care agencies—could see sharp reductions in reimbursement, making it harder to sustain services for Medicaid populations. Proposals to limit state-directed payments and disproportionate share hospital funds could further destabilize facilities that serve a high percentage of low-income patients.
For Medicaid beneficiaries, the stakes are even higher. Changes in eligibility criteria, enrollment procedures, or benefit packages could leave millions without coverage. Older adults and individuals with disabilities who rely on Medicaid for long-term care may face significant barriers if states scale back HCBS funding, tighten income requirements, or impose cost-sharing mechanisms.
What Comes Next?
Medicaid is at a crossroads. As policymakers weigh different restructuring options, stakeholders across the healthcare landscape—including states, providers, and advocacy groups—must be prepared to engage. The decisions made in the coming months could redefine Medicaid’s role in the healthcare system, reshaping everything from eligibility and benefits to how care is financed and delivered.
For those invested in the future of Medicaid, now is the time to track policy developments, understand the implications of potential changes, and advocate for solutions that preserve access while ensuring financial sustainability. The outcome of this debate will determine whether Medicaid continues to serve as a safety net for millions—or whether its role is significantly diminished in the name of fiscal restraint.
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).