Federal Agencies, Practice Resources

Trump Policies That May Be Finalized Before Inauguration Day 2021

1/21/21 AILA Doc. No. 20112338.

January 20, 2021

As expected, on Day One, the White House Issued a Memo on a Regulatory Freeze Pending Review.

January 12, 2021

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 Actions

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.

  • *** Presidential Proclamation 10014 and 10052, “Suspending Entry of Immigrants and Nonimmigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak." (85 FR 23441, 4/27/20) (85 FR 38263, 6/25/20) (86 FR 417 1/6/21) were extended until March 31, 2021. The extension will require the new Administration to affirmatively rescind them.
  • Executive Order Limiting Birthright Citizenship. Various news agencies have reported that this order is expected, even though it is highly suspect to legal challenge.

Regulatory Actions

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.

Regulations that are pending review at the Office of Information and Regulatory Affairs (OIRA) for publication as final rules.

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.