Labor and Employment: What We Know and What We Don't Know About the New Trump Administration
Author: Harold P. Coxson (Washington DC)
Published Date: November 18, 2016
The traditional frenetic pace of activity in Washington, D.C., following a presidential election has begun in earnest as transition teams are formed for each federal agency, resumes for the 1,300 newly vacant positions are flying around town, policies are being debated for the first 100 days, and preparations are under way for the presidential inauguration and inaugural balls.
Congressional committees such as the House Committee on Education and the Workforce and the Senate Health, Education, Labor and Pensions (HELP) Committee are hard at work designing the labor and employment policy agenda for the 115th Congress. Washington corporate representatives, trade associations and think tanks, unions, civil rights groups, environmental organizations, and lobbyists of every political stripe are making plans as well. Washington is never busier than it is immediately following a presidential election, especially one where the incoming party will be new to the White House. And the media and political pundits are trying to follow all of this activity and restore their credibility after badly misreading the elections.
Predicting who will be in what position come January 20, 2017, is now vying with professional basketball and football in Washington as the city’s most popular sport. Do not believe anyone who says he or she knows who will be the next secretary of whatever. No one truly "knows" anything until the final announcements are made.
I'm reminded of a particularly heated battle between the two front-runners for secretary of labor in President Reagan's first term—each convinced that he was the president’s choice—until the president announced the winner: an obscure construction contractor from New Jersey whom no one had heard of named Raymond J. (“Ray”) Donovan. Candidate Reagan had promised him the position during the campaign!
In the Eisenhower administration, the cabinet was derided as consisting of nine millionaires and a plumber-plumbing union president, Martin P. Durkin, who was named secretary of labor. A Democrat among Republicans, Durkin pushed unsuccessfully to revise the Taft-Hartley Act after which he resigned having served from January 21, 1953 to September 10, 1953, the shortest tenure of any labor secretary.
So at this writing, no one knows who will be the next secretary of labor. What we can expect, however, is that at the National Labor Relations Board (NLRB), current Republican Board Member Philip A. Miscimarra should be designated as the chairman in order to gain control of the agenda and prevent further sledgehammer assaults on long-established legal precedent by current Chairman Mark Gaston Pearce. Current NLRB General Counsel Richard F. Griffin Jr., however, is expected to remain in office until his term expires on November 4, 2017, which could hamper the new majority's efforts to reverse recent pro-union decisions. However, we should expect the nomination of Republicans to fill the two NLRB vacancies and thus create a new majority to begin the task of slowly reversing the avalanche of pro-union decisions over the past eight years.
We also know that the chair of the U.S. Equal Employment Opportunity Commission (EEOC) will soon be vacant with the announced departure of current Chair Jenny R. Yang. That position, too, should be filled immediately by one of the current Republican commissioners for the same reason—to gain control of the agenda.
At the U.S Department of Labor (DOL), Secretary Thomas E. Perez is expected to remain in office until the end of 2016, while some of the heads of various departments are already departing. The degree of distrust is such that the Republican-led Congress has proposed legislation during the lame duck session to prevent the DOL and other federal agencies from issuing "midnight regulations" which then must be undone by the new administration. In addition, the Senate probably will not recess at the end of the lame duck session to prevent a "recess appointment" to the Supreme Court of the United States.
Whether future bipartisanship is possible to end gridlock in the 115th Congress and the White House remains to be seen. One area of possible compromise might be in infrastructure legislation, although methods of funding it might bring out disagreement.
The Supreme Court and Federal Judiciary
Of course, the nomination of a new Supreme Court justice should be a high priority for President-elect Trump's first days in office. That could touch off a fight in Congress where the 60-vote filibuster rule is still available to block confirmation of Supreme Court nominees. Lower court judicial nominations and agency appointments requiring confirmation cannot be filibustered and may be confirmed with a simple 51-vote majority in the Senate. All current judicial nominations not confirmed by the end of the 114th Congress will be void, just as with pending legislation, and must begin afresh in the 115th Congress in 2017.
A New Agenda Takes Shape
President-elect Trump has announced that his priorities in his first 100 days in office include repealing and replacing the Affordable Care Act, though perhaps retaining insurance coverage for preexisting conditions and coverage for offspring 26 years of age and younger who are insured on their parents' plans.
He has also prioritized reversing his predecessor's executive orders, many of which pertain to labor and employment, beginning from President Obama's first days in office.
Another Trump administration priority is immigration reform to secure the borders and deport certain undocumented immigrants, notably those with criminal records.
Among other first-day proposals will likely be infrastructure improvements for bridges, highways, airports, and so forth, perhaps replicating President Eisenhower's construction of the interstate highway system.
During this interregnum and transition of power, both sides are expressing a willingness to work together while promising broad opposition to proposals and actions that go "too far." It will be instructive to see how far is "too far" in some of the early actions by the White House and Congress, which will set the tone for the remainder of the administration.
Hal Coxson is a nationally recognized lawyer with over 35 years experience in all aspects of labor and employment law in Washington, DC. He is highly respected for his experience and expertise in government relations and as an advocate on behalf of business clients before Congress, the Executive Branch and independent federal regulatory agencies. He chairs the Firm’s Government Relations Practice Group and is a Principal in Ogletree Governmental Affairs, Inc., the Firm’s wholly-owned...