United States: Outlook 2017: Administrative Levers and Mechanisms for Policy Change (podcast)

Listen to this Q&A

Podcast Transcript:

Hello I am Doug Hallward-Driemeier, a partner in the Washington, D.C. office of Ropes & Gray and chair of the firm's Appellate and Supreme Court practice. Today I am joined by my colleague Justin Florence, who previously served as Special Assistant and Associate Counsel to President Obama in the White House and before that served on the staff of the Senate Judiciary Committee.

This is part of our Capital Insight series that examines the issues and potential regulatory enforcement changes emanating from our nation's capital as we transition to a new political administration.

Justin: Thanks, Doug. I thought we might discuss the potential levers of policy change that are available to the incoming Trump administration and the new Congress. What are the opportunities for and obstacles to major legal and policy change that we may see, and are there some big picture guidelines that will structure how change happens?

Doug: Sure, as a rule of thumb, I think it is fair to say that the same way that a policy was adopted is what you have to do to change that policy. So if policy was adopted through legislation, you have to go through legislation to undo it or to change it; likewise if you went through notice and comment rule making, similarly to change it where as more informal action such as executive orders can be undone that same way.

Another general rule, I think, is that it is easier to stop something than to start it. And so that is true with enforcement initiatives or regulatory initiatives that might be underway that could be stopped whereas getting something new on the books is going to take a longer time. One way to think about these changes is to think about it branch by branch, I suppose. In starting with the legislature, Justin, you had worked with the Senate previously, but some might think that given that the Republicans control both houses of Congress before and do so now that there is not going to be a major change on the Hill. I suspect you have a different view?

Justin: I do and that is because of the tremendous influence that the President and the administration have over the legislative process and that starts with the State of the Union, with setting forward a budget, with testifying at legislative hearings, and, central to that influence that the Executive Branch has is the veto. Or course, nothing can become law unless the President signs it or refrains from vetoing it. And so when there is either a veto in the wings or a threat of a veto, it really constrains what type of actions Congress takes legislatively. Now, I think one thing we will see in the very near future because the threat of a Democratic presidential veto is gone, is use of the Congressional Review Act which is a statute that allows Congress to roll back regulations on an expedited timeline and with a simple majority vote – that hasn't done that much work in the prior administration because the President would veto these measures but the incoming President is unlikely to do so, so I think we will see some uses of that in the near future. Business Securities Litigation Another area where we may see changes in Congress is its oversight role. In the last several years Congress has focused most of its oversight attention on the Obama administration, on Hillary Clinton, on the emails, and it is unclear how much Republican controlled Congressional committees will want to use their powers and their resources to investigate a Republican presidential administration. They may instead turn that focus to the private sector looking at companies, individuals, NGOs, for different matters, and so that is something that folks will want to be aware of. It is not just what happens through legislation but through oversight either of the private sector or of the administration.

Doug: Well maybe let's now transition in looking at the Executive branch and agencies. I suppose it is probably very important to look at many of these questions agency by agency, issue by issue and I know that some of our colleagues have done that in other podcasts in this series. But, it seems to be also helpful to think a little more generally with respect to formal rulemaking, for example, that that can be very cumbersome, and we are seeing just now the Obama administration in its final days finalizing regulations that have been in the works for many years, since perhaps the beginning of the second administration, and so to the extent that the incoming administration has to go through that process that would be very cumbersome.

One thing to note as we come to this transition between the agencies is that I would expect to see that the new Chief of Staff, Reince Priebus, would issue a memorandum similar to what we saw with the transition from the Clinton administration to Bush with Andrew Card, or from the Bush administration to President Obama with Rahm Emanuel, which is a memo that tries to freeze in place administrative actions so any regulation that has been perhaps finalized and sent to the Federal Register, but not yet published, would be withdrawn from that or anything that has been published, but not yet gone into effect, would be delayed. Both the Card memo and the Emanuel memorandum did that and I would expect to see that again in this administration. As we discussed before, though, there is a lot of what agencies do that is not formal notice and comment rulemaking, executive orders or more informal guidance in policy documents. Those I would expect to see changing much more rapidly, and as you mentioned, enforcement priorities is something that can change very rapidly, especially to the extent that the government has been doing something affirmatively it can pull back from that pretty quickly. Are there areas where you expect to see that kind of change pretty quickly?

Justin: I do think that enforcement priorities is a great example there because there is no other branch of government that can quickly and easily check what the government is doing there. We saw it in the Obama administration with the immigration executive actions: although some of those through court challenges, through opposition from Congress, the changed in prioritization and resource deployment for deportations has gone virtually unchecked, and I think the Trump administration will see in that, that shifting around resources, focusing in different areas is something they can do quickly and can do without other branches interfering. It is a little bit hard to prognosticate where that may happen but it could be within any agency focusing on particular industries, focusing on particular companies, given the way the dialogue has gone lately, any of those areas. Another thing that the administration can do quickly is change its litigation position. I know you worked in the Solicitor General's Office and am curious if you can talk about more about how that process happens?

Doug: Well, at least for the core Executive agencies, they are represented by the Department of Justice and anything on appeal, that position of the United States is adopted by the Solicitor General, and so it is certainly true that in change from one administration to another, sometimes you see policy change reflected through no longer defending, perhaps a regulation or informal guidance, that was challenged and struck down by a lower court. Interestingly one of the major pieces of regulation that had been in litigation is the Clean Power Plan. When I was in the Solicitor General's Office, we did see that from one administration to another a change in policy with respect to environmental issues. There sometimes, as is the case with the Clean Power Plan, regulations there are interveners, private parties that are defending the regulations, who would want to continue to press that. So, we may actually see an issue get up to the Supreme Court about whether that is permissible. The Affordable Care Act cost sharing subsidies are also in litigation where the Congress, or House or Representatives, has challenged the government's policy, the administration's policy, as inconsistent with the Appropriations Clause, another area where we might see the administration's position change in litigation. Sometimes it is even more direct, in the transgender student litigation that is currently before the Supreme Court. That is there on a question of deference to the Department of Education's interpretation of sex discrimination, as including gender identity discrimination. If that policy interpretation were to change, that would obviously influence the litigation. So, there are lots of ways in which the government's position, as represented by the Solicitor General, can influence how rapidly some of these policy changes can be made.

Justin: Unfortunately that is all the time we have today. It will be fascinating to see how these issues play out. We will have another podcast coming soon on changes that we can expect to see in the judiciary. Thank you Doug, for joining me in this interesting conversation. Thank you all for listening. I hope everybody will visit our newly launched Capital Insights page at www.ropesgray.com for more news and analysis on noteworthy enforcement and regulatory issues.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions