Presidential Transition Update

November 28, 2016

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Even though it was a shorter week due to the Thanksgiving holiday, President-elect Trump made headlines Wednesday after he nominated the first two women to his previously all-male Cabinet and White House team. He also released a video message offering an update on the White House transition and announcing his policy plans for the first 100 days of his administration. Throughout the week, Trump’s transition team continued to vet candidates for other open Cabinet positions and announced the start of a list of names for the agency landing teams headed to U.S. domestic agencies.


Trump Video Message Outlines Day-One Priorities, Sans ACA Repeal

In a video message released Nov. 21, President-elect Trump announced the core principle of his presidency — “putting America first” — and set out the top executive actions he intends to issue, beginning his first day in office. His priorities include abandoning “job-killing” rules on clean coal and natural-gas production, withdrawing from bilateral trade agreements, “creating millions of high-paying jobs,” and “investigating all abuses of visa programs.” Trump also vowed to institute a policy that, for every new regulation adopted, two old ones must be eliminated.

Interestingly absent from his list, however, was fulfillment of a promise to repeal the Affordable Care Act (ACA) on his first day in office. It is a noteworthy omission, given that President-elect Trump repeatedly promised to immediately rescind the law upon taking office and that he enumerated his other stated campaign priorities like trade and immigration in the video. Some speculate that the move could imply that congressional Republicans may not immediately annul the entire law, opting instead to pursue alternative strategies. It is worth mentioning, however, that House GOP leaders and Vice President-elect Mike Pence have repeatedly stated that repealing the ACA is a day-one priority.

Some Domestic Agency Landing Teams Announced

On Nov. 22 and Nov. 23, the Trump transition team made two more announcements with additional members for “landing teams” that oversee his transition at federal agencies, including the Department of Housing and Urban Development, the Department of Homeland Security, the Department of Energy, the Department of Transportation, the Department of Veterans Affairs, the Department of Agriculture, the Small Business Administration, the Commodity Futures and Trading Commission, the Consumer Financial Protection Bureau, the Department of Interior, the Office of Management and Budget, the Department of Commerce, the Department of Labor, the Environmental Protection Agency, the Department of the Treasury, and the Export-Import Bank, among others.

Congressional Democrats Urge GAO to Review Trump Transition for Conflicts of Interest

Sen. Elizabeth Warren (D-MA) and Rep. Elijah Cummings (D-MD) sent a letter to the Government Accountability Office (GAO) on Nov. 23 requesting that the agency examine conflicts of interest related to the business holdings of President-elect Trump and his family, potential violations of protocol and national security concerns related to President-elect Trump’s communications with foreign leaders on unsecured lines, and transparency-related issues in the use of taxpayer funds used in the transition.

The Democrats said that to date there has been no information released to the public indicating that President-elect Trump has prepared a blind trust. Moreover, the letter mentioned several reports indicating that Trump and his family have not drawn a clear line between his presidency and his company. In their request for an inquiry, Sen. Warren and Rep. Cummings cite news reports about foreign diplomats staying at Trump’s new Pennsylvania Avenue hotel in an attempt to curry favor with the president-elect, his meeting with three Indian business partners shortly following the election, and stalled work on one of his properties in Argentina resuming after a phone conversation between Argentine President Mauricio Macri and President-elect Trump.


Trump Appoints SC Gov. Nikki Haley as US Ambassador to the United Nations

On Nov. 23, President-elect Donald J. Trump announced his intent to nominate Republican South Carolina Governor Nikki Haley as the United States Permanent Representative to the United Nations, a cabinet-level position in the Trump-Pence administration. Gov. Haley, a rising star in the Republican Party and a daughter of Indian immigrants, has occupied the governor’s mansion in South Carolina since 2011. Gov. Haley is Trump’s first female appointee to a Cabinet-level post, one that requires intense diplomatic and navigational skills in an often-challenging international bureaucracy.

In his statement announcing his decision, Trump said Haley was “a proven deal-maker, and we look to be making plenty of deals.” He also said the governor has a “track record of bringing people together regardless of background or party affiliation.”

In her acceptance of the nomination, Gov. Haley said, “Our country faces enormous challenges here at home and internationally. I am honored that the president-elect has asked me to join his team.” Her nomination must be confirmed by the Senate.

Betsy DeVos Nominated as Trump Administration’s Education Secretary

President-elect Trump announced on Nov. 23 his selection of Betsy DeVos as the nominee for secretary of the Department of Education. DeVos is a school-choice activist, philanthropist and Republican donor, and she currently serves as the chairwoman of the American Federation for Children. Trump’s decision to tap Betsy DeVos to lead the Education Department is likely a sign that Trump plans to pursue his campaign pledge of spending $20 billion on block grants to expand charter and private school options for low-income children. The idea has long been favored by Republicans.

In response to the nomination, the Michigan native tweeted: “I am honored to work with the President-elect on his vision to make American education great again. The status quo in ed is not acceptable.”

Alternatively, President-elect Trump has made campaign statements that the Department of Education would play a reduced role in his administration. He may try to eliminate the department altogether.

Trump Nominates Deputy National Security Advisor and White House Counsel

In a Nov. 25 press release, President-elect Trump announced his selection of Kathleen Troia “KT” McFarland to serve as Deputy National Security Advisor. McFarland held national security posts in the Nixon, Ford and Reagan administrations. In her role as a Fox News commenter, she has been highly critical of President Obama’s approach to combating terrorism, a view that puts her in line with Trump’s new national security adviser, Lt. Gen. Michael Flynn.

Also on Friday, Trump named Donald F. McGahn as his White House counsel and Assistant to the President. A partner at Jones Day LLP and a former Federal Election Commission Chairman, McGahn also served as an adviser to Trump’s campaign. McGahn will be responsible for preparing new executive orders issued by the president. Trump has pledged to rescind many of President Barack Obama’s orders, saying they exceeded his powers, while vowing to issue his own on matters such as restricting immigration from countries compromised by Islamic terrorists.

An evolving list of rumored Trump appointees can be found here.

Transition Team’s Ad Hoc Approach to Vetting His Appointees

Politico reports that President-elect Donald Trump’s cabinet-filling approach seems to be characterized by choosing appointees based on recommendations from friends, lawyers, lobbyists, donors, statesmen and top transition team members, and only then pursuing serious candidate vetting.  Final decisions on nominees are then made with his small squad of trusted advisers, including his newly appointed Chief of Staff Reince Priebus, Senior Advisor Steve Bannon, son-in-law Jared Kushner and Vice President-elect Mike Pence.

This process is starkly different from that of past presidential transition teams, who have subjected nominees to weeks, or even months, of scrutiny of their finances, taxes, previous employment, and personal relationships. Some say this approach has the potential to cause public relations problems for the new administration, should Senate Democrats or liberal opposition groups find dirt on a cabinet candidate before members of the Trump vetting team can do so.

Ben Carson Messages Flip-Flop After Trump Tweets He Is Considering Him for HUD Secretary

President-elect Trump tweeted on Nov. 22 that he is “seriously considering” Dr. Ben Carson for the position of Secretary of the Department of Housing and Urban Development (HUD). This week, Dr. Carson clarified his position on the matter, posting on Facebook that “there is no reversal of [his] position in terms of working with the Trump administration.” He reiterated that he prefers to stay outside the White House, before adding, “If called upon, I would serve inside of the government.” It was the second time in two days that the Trump ally has sent flip-flopping messages on a potential appointment. Last Sunday, Dr. Carson told Fox News that he’d prefer not to get a job but would give “serious consideration” to a Cabinet offer.


Using the Congressional Review Act to Repeal Obama Administration Regulations

In the weeks before the 115th Congress commences, House Republicans will be setting the stage for a major push to repeal Obama-era regulations using the Congressional Review Act (CRA). The CRA, passed in 1996, allows the House of Representatives to annul regulations enacted within the previous 60 legislative days, and the Senate to pass a repeal via a simple majority instead of the typical 60-vote filibuster-proof threshold. While President Obama is still in office, the Republican majority would be unable to repeal his regulations; however, with the inauguration of Trump on Jan. 20, that all changes.

The 1996 law is also written such that the 60-legislative-day clock starts over at the beginning of each new Congress for all rules enacted in the 60 legislative days prior to the final day of congressional adjournment. That will give Congress months longer to terminate regulations issued late this year. As a result, congressional Republicans are now strategizing to leave home for recess on Dec. 9, essentially stopping the clock and enabling them the chance to undo as many 2016 rules and regulations as possible.

Throughout this lame-duck session, House Republicans will be making lists of regulations that fall within their 60-legislative-day time frame for repeal early next year. Leadership has also shown favor to a proposal authored by Rep. Darrell Issa to allow Congress to repeal several regulations at once, rather than one at a time as written in the CRA. The House passed the California Republican’s bill on Nov. 17, with GOP members agreeing to send the bill to President-elect Trump once he is inaugurated.

As an alternative, Rep. Mark Meadows (R-NC) and a few House Freedom Caucus members have begun compiling their priority list of 100 Obama-era rules that they’d like to see reversed during the Trump administration’s first 100 days. Some of their selected priorities fall outside of the 60-day window of the CRA, meaning they would need to coerce some Senate Democrats into joining their uphill battle.

For more information on the revocation of executive orders, the Congressional Review Act, or repealing older Obama administration regulations, please see the following recent Congressional Research Service (CRS) reports:

Trump’s Nuclear Option for ACA Lies With D.C. District Court Decision

The House of Representatives asked the U.S. Court of Appeals for the District of Columbia Circuit on Nov. 21 to allow it to halt its lawsuit challenging the Affordable Care Act’s subsidy program, a political play that might permit the incoming Trump administration to expeditiously dismantle the Obamacare exchanges. A court approval of the request would buy the new Trump administration time to determine whether it wants to continue to legally defend a critical part of the ACA as it devises a health care agenda to succeed the ACA.

“In light of public statements by the president-elect and his campaign, there is at least a significant possibility of a meaningful change in policy in the new administration that could either obviate the need for resolution of this appeal or affect the nature and scope of the issues presented for review,” the House lawyers wrote.

In the case of House v. Burwell, the Republicans hinge their legal argument on the fact that Obamacare did not properly fund ACA payments to health insurance companies to assist low-income Americans in paying for their out-of-pocket health care costs; they assert that while Congress authorized the program, it never actually provided appropriations for it, as required by its “power of the purse.” The Obama administration, however, rejects the lawsuit’s premise that the funds are being distributed illegally, and argues that congressional Republicans don’t have standing to sue a federal department. If a Trump Justice Department doesn’t want to carry on defending Obamacare, the subsidies may be abolished almost immediately, as a lower court has already sided with the House. Eliminating these subsidy payments would give the Trump administration and the GOP Congress the first major victory in their war to dismantle Obamacare; however, it also would severely disrupt the health insurance coverage of millions of individuals who are enrolled on the exchange. As expected, the Obama administration declined to join the House’s request to delay the lawsuit.

Politico has more on the story here.

Trump Downplays Republicans’ Opposition to His Pricey Infrastructure Plan

In a shift that would better align Trump with the GOP’s fiscally conservative spending platform, President-elect Donald Trump may be rearranging his early-term policy priorities, pushing his expensive infrastructure package further down his agenda behind his tax, regulatory and health care plans. In a Nov. 22 interview with The New York Times, President-elect Trump dismissed reporters’ questions regarding whether House Speaker Paul Ryan (R-WI) and Senate Majority Leader Mitch McConnell (R-KY) would contest his trillion-dollar infrastructure proposal. “Let’s see if I get it done,” he said, according to a transcript. “Right now they’re in love with me. OK? Four weeks ago they weren’t in love with me.” President-elect Trump believes that winning the presidency and helping Republicans hold their majorities in Congress put him in a favorable position with his party.

In the same interview, however, President-elect Trump also implied that new infrastructure investments would not be a central part of his first 100 days. “It’s not the core, but it’s an important factor,” he said. “We’re going for a lot of things, between taxes, between regulations, between health care replacement.”

When pushed further on whether he considered an infrastructure package a component of his jobs program, Trump suggested that it was not critical. “I don’t even think it’s a big part of it,” he said. “It’s going to be a big number but I think I am doing things that are more important than infrastructure, but infrastructure is still a part of it, and we’re talking about a very large-scale infrastructure bill. And that’s not a very Republican thing. I didn’t even know that, frankly.” Trump’s political realization raised a few eyebrows in Washington, as it highlights Trump’s fledgling understanding of the platforms of traditional party politics. His decision to now soften his push for an infrastructure package could also be a result of the pressuring effects of his Republican establishment transition team, with which he has surrounded himself, affecting his outlook.