The election of Donald Trump places numerous regulations issued under the Obama administration in jeopardy, including the Department of Labor’s Persuader Rules, the National Labor Relations Board’s “Quickie” Election Rules, and the Department of Labor & FAR Council’s Fair Pay & Safe Workplaces Regulations.
Currently, these rules are essentially immune from Congressional challenge given President Obama’s veto power. Although the Congressional Review Act (“CRA”) gives Congress 60 legislative days after the effective date of a new rule to invalidate the rule, any Congressional action under the CRA can be vetoed by the sitting President. Similarly, although Congress can overturn agency rulemaking through explicit statutory mandates, any such measures will again be subject to President Obama’s veto. The President has already exercised his veto power to block Congressional attempts to invalidate the Board’s modified election rules. It is unlikely that Republicans could muster the 2/3rds vote required in both chambers to overcome a Presidential veto.
Once President-Elect Trump takes office in January, these rules can be more easily removed through either Congressional action or agency action. As discussed above, Congress can overturn agency rulemaking through the CRA or through explicit statutory mandates. With Republicans dominating both houses and Trump in office, successful Congressional reversal is more likely — although still subject to the political pressure of the filibuster in the Senate where Democrats will hold 48-49 votes in their caucus.
Trump can also rescind any executive orders issued by Obama, including the Fair Pay & Safe Workplaces Executive Order; however, such rescission has no effect on the rules which implement the executive orders. For rules that have not yet gone into effect, Trump can suspend them, essentially postponing their effective date. Unfortunately, the official effective dates for the Persuader Rules, the NLRB Election Rules, and the Fair Pay & Safe Workplaces Rules have passed. For these and other similar rules, the Trump Administration can reverse or revise them, but must do so through the extensive rulemaking process, which includes a notice and comment period, the need for a reasoned analysis for why the repeal or revision was necessary, and a 60-day waiting period. The rulemaking process will take time and will likely be subject to judicial challenge by pro-labor entities. In the meantime, the Obama Administration rules remain “on the books,” subject to judicial review.
Both the Persuader Rules and the Fair Pay & Safe Workplaces Rules are currently being challenged through court litigation and have been preliminary enjoined. Once Trump takes office, the Department of Justice could decide not to defend these rules and could consent to a settlement and court order reversing the implementation of these rules.
Ultimately, the lengthy list of regulations finalized during the Obama presidency are at risk of being undermined, and it remains to be seen what major labor law changes might result from a Trump presidency.