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AILA Doc. No. 20112338 | Dated January 21, 2021
As expected, on Day One, the White House Issued a Memo on a Regulatory Freeze Pending Review.
Rules that are published as Final but are scheduled to take effect after Inauguration Day: The effective date of these rules will likely be delayed by 60 days based on a memo freezing regulatory action that the Biden administration is expected to issue on Day One.
The final days of an outgoing administration have historically proven to be some of the busiest. Administrations have worked hard in their waning days in office to publish their key priorities and take steps to preserve their policy legacy. We expect that the Trump administration will continue full steam ahead until January 20, 2021. In the past 4 years, this administration has prioritized paralyzing humanitarian protection programs, making the legal immigration system inaccessible to those who are not the wealthiest, and keeping out foreign workers under the guise of protecting American workers. These points may serve as an important guide when reviewing the list below to understand what the Administration may prioritize among others. However, as has been the case with this administration the only thing that is for sure is that we can always expect to expect what we are least expecting. As such, AILA has compiled this list of actions that may be on the horizon, but with the understanding that it is impossible to cover or predict all the immigration actions on the horizon. We are denoting what are likely high priority items with (***) and items that have changed since our last update on December 9, 2020, in yellow highlight. You can stay up to date on these Executive Actions on AILA’s Tracking Notable Executive Action webpage.
Presidential Proclamations and Executive Orders are some of the easiest and quickest actions an administration can take; however, they can also be easily revoked by an incoming administration.
An administration will seek to publish and make effective as many final regulations as possible before January 20th to make longer-lasting policy changes. This is because any rule that has been finalized cannot be rescinded unless it goes through rulemaking process, is set-aside by a court, or are rescinded by Congress by way of the Congressional Review Act.1 On Day One of new Administration, an incoming President will typically issue a memorandum to the Executive Branch ordering that 1) they do not send any proposed or final rules to the Office of Federal Register; 2) withdraw any rules pending at the Federal Register; and 3) automatically postpone any rules that have not yet taken effect by 60 days.2
The ability to finalize regulations will be very dependent on what phase the specific action is in the regulatory drafting and review process and how high of a priority it is for the Administration.
This means that a rule has already been issued as a proposed rule, comments have been received, and a final rule has been drafted, or the rule is being issued as a straight final rule. OIRA review can take a few months, but in the recent past it has been expedited to be concluded in 30 days or has been waived entirely. These rules are the closest to being finalized and published.
These are rules that were published as interim final rules with a comment period and either took effect or were to take effect but were subsequently set aside by a Court because the government failed to take the proper steps to issue the rule. In this scenario, the government could either start afresh and issue a notice of proposed rulemaking, solicit comments, and then issue a final rule or issue a new final rule based on the comments received on the interim final rule. Given the limited time remaining in this administration, the latter is the most probable scenario.
The ability to finalize these rules will be dependent on how many comments they have received. Typically, it takes months to review all comments, respond and draft a final rule, and have it cleared through agency, department and OIRA review. However, the administration may have things already in motion to finalize it, especially if they do not intend to make any policy changes based on comments.
These rules will be even harder to finalize as all comments have not yet been received. The agency will need to review and respond to the comments, draft, and clear the final rule at agency and department level, as well as OIRA. To help slow down the finalization of rules, it is important for the public to submit as many unique comments as possible.
These regulations will be nearly impossible to finalize by January 20, 2021 given the number of steps remaining.
The Administration can quickly finalize these types of policy or procedural updates, as we have seen in the past few weeks. The policy memos typically take effect immediately, even if the agency will accept comments after the fact. Unfortunately, we would not have advance visibility in these types of publications. Policy memos that have been recently published include revisions to naturalization test, child status protection act application, use of discretion in adjustment of status adjudications, changes to naturalization adjudications, AC21 job portability, EOIR scheduling orders, EOIR processing of Asylum Applications, and EOIR Memo on Continuances. If these types of documents are published in the final days, a new administration would have to issue a new policy memo to overturn that action or if it is substantively a rule, it could be overturned by the CRA.
Several regulations and policy memos have already taken effect but are being challenged in court. Whether a new administration may more easily overturn these policies will be dependent on whether they have been set aside or enjoined by a court by Inauguration Day. For example, litigation is pending on the following:
The status of many of the DHS promulgated rules depends on whether Chad Wolf is confirmed by the Senate before the end of the administration. Various courts have struck down rules and policy memos issued by Chad Wolf because they have found his appointment unlawful. However, if he is appointed timely, he may be able to ratify his prior actions which may allow them to take/remain effect. Given the limited time and the Senate’s current focus on judicial appointments, they may not take up Wolf’s nomination. On January 7, 2021, the Administration rescinded its nomination of Chad Wolf. Effective midnight January 12, 2021, Chad Wolf resigned from his position, noting that FEMA Administrator Pete Gaynor will serve as Acting Secretary. In his resignation announcement, he specifically notes that one reason for resignation was “the ongoing and meritless court rulings regarding the validity of my authority as Acting Secretary.” This signals that the administration will attempt to ratify the disqualified regulations before January 20th.
The effective date of these rules will likely be delayed by 60 days based on a memo freezing regulatory action that the Biden Administration is expected to issue on Day One.
1. The CRA allows Congress to review "major" rules issued by federal agencies before the rules take effect. Congress may also vacate new rules by a simple majority joint resolution (and are not subject to filibuster) if the rules were issued within the last 60 legislative calendar days of a session. 5 U.S.C. § 802. For 2020, the review period is likely for rules issued on or after August 21, 2020 and Congress may act within the first 60 legislative days of the new session. However, given the slim control that Democrats have in both Chambers and other restrictions on regulating in a substantially similar form, use of the CRA will prove to be challenging.
2. CRS Insight “Can a New Administration Undo a Previous Administration’s Regulations”? Maeve P. Carey, 11/21/16 available at https://fas.org/sgp/crs/misc/IN10611.pdf
3. AILA chose this date, as this is the likely date for the CRA review period, as noted above.
Cite as AILA Doc. No. 20112338.
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