Outlook on the New Administration

This presentation was recorded and current as of November 19, 2024. Content viewed after this date may no longer be current.

The following update recaps and summarizes that presentation, focusing on the levers for administrations to effect policy and legal change within the Executive Branch, along with the timelines and processes involved in those changes.  New administrations face challenges in seating political appointees, getting control over matters already in process, following procedural and substantive requirements for changing formal regulations and other policies, and defending reforms and changes against inevitable litigation.  The bottom line?  Changing course is neither immediate nor assured, even for an administration whose party controls both houses of Congress.  The following identifies some of the opportunities and challenges the incoming administration will face over the coming year.

Prior to January 20, 2025

The most important developments prior to Inauguration Day are personnel decisions.  President-Elect Donald Trump’s ability to execute on his policy agenda will depend, in the first instance, on the personnel he appoints to fill key leadership ranks throughout the Executive Branch.

The Trump transition team has several different strategies it can take to quickly fill positions, depending on the nature of the position and who will fill it.  Leadership positions on the White House team do not typically require Senate confirmation, so President-Elect Trump will be able to make those appointments quickly and largely unfettered.  Cabinet positions and other high-level agency positions, such as deputy secretaries and assistant secretaries, require Senate confirmation.  Historically, one Senate-confirmed holdover from the prior administration would stay on in each department or agency until a senior appointee from the new administration received Senate confirmation — reflecting the reality that there are some actions and legal obligations that must be undertaken by a Senate-confirmed officer.  But following that practice in 2017 led to some unhappy experiences for then-President Trump.  In this round, there is likely to be even greater focus on making a “clean-sweep” of existing appointees and greater urgency in installing completely new teams.  Among the strategies pursued will be pre-January 20, 2025, confirmation hearings and votes to allow near immediate installation of new Cabinet members, potential recess appointments to fill positions and avoid the Senate confirmation process, and temporary appointments or promotions of trusted individuals already serving in the government in career, non-political slots.

Day One

The first day of a new administration is when the actual transfer of power takes place — until then, the incoming administration has no power to direct any actions by federal agencies.  During the previous Trump administration, small “landing teams” were appointed to political positions that do not require Senate confirmation and took office moments after the president was sworn in.  These teams immediately began the work of implementing changes via personnel adjustments, carrying out presidential executive orders, addressing legal positions previously taken internally or being advanced in the courts, and even completely stopping certain programs that had been active minutes prior.

These small landing teams are a thumbnail of a larger personnel effort.  There are approximately 4,000 politically appointed positions in the executive branch, 1,200 of which require Senate confirmation.  President-Elect Trump has suggested using recess appointments to avoid the potentially lengthy Senate confirmation process.  For a president to make a recess appointment, both chambers of Congress must agree to a recess beyond three days; the Supreme Court has cautioned that a recess of less than ten  days is “presumptively too short” to trigger the president’s recess appointment power.  See Nat’l Labor Relations Bd. v. Noel Canning, 573 U.S. 513 (2014).  Recess appointments expire at the end of the Senate’s “next session.”  This means that, if timed correctly, a recess appointment can last about two years.

Along with recess appointments, the president can also utilize the Vacancies Reform Act (“VRA”) to appoint certain officials in an “acting” capacity to perform the duties of “Presidentially Appointed-Senate Confirmed (“PAS”) office” temporarily.  If a PAS officer dies, resigns, or is unavailable, the first assistant (top deputy to that PAS official) “shall perform” the duties of the office “temporarily in an acting capacity.” Other individuals eligible to serve temporarily in a PAS role include anyone who serves in another PAS position anywhere in the federal government and federal employees at a GS-15 level or higher who have been at the agency for at least 90 of the past 365 days prior to the vacancy.  Notably, nominees pending Senate confirmation are ineligible to serve in acting capacities.  To avoid a president using acting officials to circumvent the Senate confirmation process, the VRA places a 210-day service cap for acting officials, although a formal nomination then tolls further running of that time.  Moreover, if a nominee is rejected, the acting appointment is extended by an additional 210 days.

Another important way a president can influence policy on “day one” is through executive orders.  Executive orders can be effective tools for communicating and setting agency policy priorities, but typically cannot and do not change existing regulations or other laws.  On the first day of his administration, President Joe Biden immediately withdrew several of President Trump’s key executive orders pertaining to immigration policy and the regulatory process.  The incoming Trump administration could well resurrect executive orders from President Trump’s first term, along with issuing new orders to advance his second term priorities.  Many executive orders are not subject to court challenges because they do not affect individual rights or create enforceable obligations, although there are some exceptions, as highlighted by the litigation over the “travel ban” during President Trump’s first administration.

In recent history, another key “day one” action comes from the president’s chief of staff, who will issue a memorandum “freezing” the issuance of new regulations by executive branch departments and agencies, and attempting to claw back regulations approved in the waning days of the prior administration but not yet formally published.  Courts have generally upheld these freezes and clawbacks without the use of notice-and-comment procedures under the Administrative Procedure Act (“APA”), although the issue has been litigated.  E.g., Humane Soc’y of the U.S. v. U.S. Dep’t of Agric., 41 F.4th 564, 575 (D.C. Cir. 2022) (holding that “agencies may repeal a rule made available for public inspection in the Office of the Federal Register only after complying with the APA’s procedural requirements”).  The “day one” regulatory review memoranda has also typically been used to direct agencies to delay the effective date of regulations that are published but have not yet taken effect, although effective-date delays may themselves be subject to the APA’s notice-and-comment procedures.  Thus, a new administration’s “day one” efforts to direct or encourage agencies to claw back new rules or delay effective dates will incur litigation risk if agencies fail to follow the APA’s procedures, which can take months or longer.

Early Months

Over the first few months of a new administration, agencies will begin changing course as they begin to comply with the regulatory review memorandum and the new administration’s other policies and directives.  One area where a new administration can move quickly is in adjusting its approach to enforcement activity.  While a substantial percentage of federal enforcement cases, both civil and criminal, would be brought regardless of the administration, some aspects of enforcement policy (such as the terms and conditions of settlements) can immediately adjust in light of a new administration’s priorities and direction.  For example, the Department of Justice (“DOJ”) stopped the use of supplemental environmental projects in settlements and reduced the use of corporate monitors during the previous Trump administration.  Thus, the exercise of enforcement discretion can be an effective complement or alternative to substantively revising policies or regulations.  But enforcement discretion is not without limits — for example, some statutes such as the False Claims Act, the Clean Air Act, and the Clean Water Act contain “citizen suit provisions” that allow individuals to bring suit against private parties or the government for alleged violations.  And, of course, state enforcement powers are generally not subject to federal control.

As for more formal regulatory change, the APA establishes basic procedural requirements that apply to issuing, amending, or rescinding rules.  Generally speaking, agencies must publish the text of a proposed rule and allow a meaningful opportunity for public comment on the proposal.  The public comment period frequently lasts between 30 and 60 days, but courts have upheld the use of shorter windows.  After taking into account the comments received, the agency must publish the final rule with a “statement of th[e] [rule’s] basis and purpose.”  5 U.S.C. § 553(c).  This statement must include the agency’s responses to meaningful comments received on the proposed rule, which can be a significant task if comments are extensive.  Publication of a final rule generally must precede the rule’s effective date by at least 30 days, with limited exceptions.

Ignoring or shortcutting the APA’s procedures carries significant litigation risk.  The first Trump administration had significant aspects of its regulatory agenda hamstrung or delayed by litigation claiming that the agencies failed to follow the APA.  These administrative-law constraints are not exclusively procedural in nature.  An agency wishing to change course may need to grapple with the pre-existing administrative record and any factual, legal, or policy determinations adopted in prior rulemakings.  Agencies are subject to a general obligation of reasoned decisionmaking, which includes the requirement that, if an agency decides to change course, it must acknowledge that it is doing so and articulate a reason for the change.  An agency need not necessarily show that the new course of action is better than the previous one, but the agency must be able to explain why it made the change, support its position based on the record before it, and address other relevant factors such as reliance interests.

Another uncertainty for the incoming administration arises from recent changes in administrative law, such as the United States Supreme Court’s June 2024 decision in Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244 (2024).  By formally overruling the longstanding Chevron doctrine, under which courts would defer to reasonable agency interpretations of the statutes they administer, Loper Bright may increase the possibility that courts will disagree with agency legal interpretations that may underlie even the incoming Trump administration’s efforts to change policy or regulations.  To be sure, in some contexts, Congress has expressly delegated issues or questions to the agency, creating a zone of discretion in which judicial review will remain deferential.  And courts will continue to apply the deferential “arbitrary and capricious” standard to agency findings of fact and other policy judgments.  But with regard to issues such as the scope of federal statutory authority, Loper Bright may create an additional hurdle for the incoming administration to navigate.  Even apart from potential changes in the interpretation of underlying statutory authorities, agencies may be constrained in their ability to switch directions if the relevant statutes require the agency to make a decision based on scientific or other evidence, and if prior regulations or policies were grounded in an existing scientific or factual record.  So-called “layered rules” present additional complexities, such as regulatory regimes where an agency has a mandatory obligation to regulate in certain respects once it has made a threshold “endangerment” or similar finding, such as occurs with the Environmental Protection Agency (“EPA”) under the Clean Air Act.  For layered rules, an agency may have to change the initial threshold determination, such as the endangerment finding, before it can repeal or pare back regulations.

Pending litigation can further complicate an incoming administration’s efforts at regulatory change.  Numerous key Biden administration regulatory initiatives are currently being challenged in court, from EPA’s methane rule for upstream oil and gas activity to Title IX protections for transgender students, to name just a few.  The status and posture of litigation can affect the timing and mechanics of regulatory change.  For instance, if an existing rule is currently subject to a judicial injunction or stay, an incoming administration may have more breathing room if the rule in question is not in effect.  And, if a judicial injunction has been issued and the prior administration is pursuing an appeal, the incoming administration can elect to withdraw the appeal and leave the preliminary injunction in place, preventing enforcement of the rule.  The same is true where litigation has proceeded past the injunction stage, and generated an adverse ruling invalidating a particular regulation on the merits — the incoming administration could withdraw or decline to appeal the adverse ruling.  But, in each of these circumstances, the presence of other parties to the litigation, such as states or non-governmental organizations supportive of the rule, can complicate the new administration’s approach, with those parties taking up the appellate mantle themselves, even if the government declines to defend the prior administration’s actions.  Where a case has not yet proceeded to judgment, the incoming administration can at minimum ask the reviewing court to hold the litigation in abeyance while the agency reconsiders a rule and takes steps to modify or repeal it.  But even an abeyance strategy is not without limits, whether due to finite judicial patience with indefinite abeyance or efforts by other parties to drive a case forward.

Stepping back from formal notice-and-comment rulemaking, agencies will generally have more flexibility to immediately repeal or change non-binding guidance or other interpretive materials.  This can be a powerful tool, because even non-binding guidance can outline or shape an agency’s position on regulatory interpretations and private-party compliance obligations.  Normally, issuing or withdrawing non-binding guidance is not subject to APA procedures because the APA procedures outlined above do not apply to interpretive rules, general statements of policy, or rules of agency organization, procedure, or practice.  However, these lines can sometimes be blurry.  If a court finds that something labeled as “guidance” is actually a formal rule, that can trigger the need to follow APA procedures in repealing, modifying, or issuing the guidance.  Finally, an administration can always choose to provide additional public involvement beyond the APA’s “floor.”  For example, the first Trump administration adopted a policy requiring agencies to use notice-and-comment rulemaking for “significant guidance documents.”  The Biden administration rescinded this policy, but the incoming administration could revive this practice through an executive order that directs agencies to reverse course again.

Early Legislative Days

The incoming 119th Congress may also play a role in President-Elect Trump’s regulatory agenda.  As noted above, the Senate’s most immediate and visible role will likely occur through the confirmation process.  The Congressional Review Act (“CRA”) provides another potentially powerful tool to repeal the Biden administration’s outgoing regulatory actions, given unified Republican control of the House, Senate, and Presidency.  The CRA provides a streamlined legislative procedure — not subject to the Senate filibuster — for Congress to enact (and the president to sign) legislation to disapprove rules that were issued within a specific lookback period of the new Congress.  Historically, the CRA was used only sparingly, but Congress and the previous Trump administration used it 16 times to repeal various Obama administration actions.  The CRA’s look-back period is not unlimited: Congress has 60 legislative days (House) or session days (Senate) to pass a joint resolution disapproving of the agency action, with the clock running from the date the agency gave formal notice to Congress of promulgation of the regulation in question.  If a new Congress comes into office during that 60-day window, the CRA establishes a “lookback” period whereby the 60-day clock restarts on the 15th legislative day (or session day for the Senate) for the next session of Congress.  It is unclear how many legislative days will still be used during the outgoing Congress, so an exact calculation of the CRA lookback period is not yet available.  However, recent estimates from the Congressional Research Service treat August 1, 2024, as the likely outer bound of the “lookback” period.  As a practical matter, rules adopted and notified to Congress after that date are potentially subject to disapproval and repeal by the CRA.  Of course, even apart from the CRA, Congress retains authority to modify or supersede any regulations (or change underlying substantive law) via ordinary legislation.

First Year and Beyond

The process of changing policies and personnel within the federal government will extend well into the first year and beyond.  Although President-Elect Trump will make nominations and appointments starting on day one, agencies governed by multi-member bodies with staggered terms and tenure protection have a degree of independence from White House control, with composition changing more slowly as terms expire and new members are appointed.  Examples include the Federal Energy Regulatory Commission (“FERC”), the Securities and Exchange Commission (“SEC”), the National Labor Relations Board (“NLRB”), and the Federal Trade Commission (“FTC”), among others.  For those bodies, President-Elect Trump will have to wait until a commissioner or board member resigns or reaches the end of their statutory term to nominate a successor.  However, the incoming Trump administration will be able to designate the chairperson of the above boards or commissions on his first day in office.  Although the chair designation will not change the ultimate voting balance of the commissions (many of which have existing Democratic majorities), the chair is typically responsible for setting the agenda and can determine what items come before the commissioners or board members for a vote.  Moreover, it would not be surprising to see some resignations occur in parallel with the change of administration — for example, the current chair of the SEC has announced his intention to resign when the incoming administration enters office, immediately creating a commissioner vacancy that President-Elect Trump can nominate to fill.

The last two administrations each also significantly affected the composition of the federal judiciary, with the Biden and first Trump administrations collectively confirming more than 450 Article III judges.  New appointments and confirmations in the incoming administration will continue to change the makeup of the judicial branch.  President-Elect Trump will be returning to office at a time when the Supreme Court and lower federal courts have demonstrated a willingness to revisit and reconsider longstanding principles of administrative law and the separation of powers.  The Supreme Court’s October 2023 term alone generated three major decisions that may affect agency power and decisionmaking.  While Loper Bright and the end of Chevron deference have been viewed as deregulatory in some important respects (insofar as independent judicial review may look more skeptically on expansive assertions of federal regulatory power without express statutory authorization), the decision could also result in courts applying more searching scrutiny of de-regulatory changes as well, to the extent they are based on legal interpretations.

The Supreme Court’s decision in Securities & Exchange Commission v. Jarkesy, 144 S. Ct. 2117 (2024), imposed important limits on agencies’ ability to adjudicate certain enforcement actions in their in-house courts, instead channeling those proceedings to Article III courts.  And although the decision has received somewhat less attention, the Court’s ruling in Corner Post, Inc. v. Board of Governors of the Federal Reserve System, 144 S. Ct. 2440 (2024) opens the door to new legal challenges to longstanding regulations and agency actions in certain areas.  Such challenges to long-settled regulatory principles may intersect in unpredictable ways with President-Elect Trump’s regulatory agenda.

Conclusion

A president’s ability to execute on a regulatory agenda depends on a confluence of factors:  personnel, policy, existing statutory and regulatory authority, and the role of Congress, non-governmental actors, and the courts.  Thus, there is no single guidepost to how long any particular regulatory reform or policy initiative will take — it will depend on the nature of the change, the personnel in place to carry it out, and the strategies, procedures, and levers the new administration employs in implementing its policy agenda.