Legislative & Executive Action

In Trump v. Slaughter, the U.S. Supreme Court made a profound change to the administrative state. The Court ruled that "for cause" removal protections for members of the Federal Trade Commission (FTC) are an unconstitutional infringement on the President's executive powers. Gone is Humphrey's Executor v. United States, the seminal case that upheld limits on the President's authority to remove FTC Commissioners, and nine decades of independent agency leadership with a degree of insulation from Presidential control. The implication of Slaughter for other independent agencies, including the...

On Tuesday, May 19th, President Trump issued two Executive Orders regarding financial services. The first, Integrating Financial Technology Innovation into Regulatory Frameworks, addresses the role of fintechs in the financial system, including supporting bank-fintech partnerships, charters, and access to Federal Reserve payment systems. The second, Restoring Integrity to America’s Financial System, covers banking products and services provided to immigrants and related BSA/AML and ability-to-repay requirements. Neither will result in immediate changes. Rather, the EOs direct the federal...

Does the Senate Finance Committee have something against thrifts? Thrifts were inexplicably left out of an exception to the proposed tax on remittance transfers in the Senate Finance draft of title VII of the Big Beautiful Bill. The language exempts transfers that are withdrawn from an account in a financial institution "which is described in subparagraph (A), (B), (C), (D), (E), (G), or (H) of section 5312(a)(2) of title 31, United States Code...." This language references the following subparagraphs in the Bank Secrecy Act's definition of "financial institution" (conspicuously skipping...

On April 9, 2025, President Trump signed a Presidential Memorandum “Directing the Repeal of Unlawful Regulations” and an accompanying “Fact Sheet” (the Presidential Memorandum and the Fact Sheet shall hereinafter be referred to as the “Memorandum”) directing the heads of federal agencies to expeditiously repeal “facially unlawful regulations.” The Memorandum requires the agencies to prioritize the repeal of regulations that conflict with ten Supreme Court decisions listed in the Memorandum, and requires the agencies to act without following the Administrative Procedure Act’s (APA) notice and...

Major developments re the Deregulation EO 14219, including a plan to bypass notice-and-comment on some regs. A new EO signed yesterday orders agency heads to bypass notice-and-comment if a rule they want to repeal is "in conflict with" one of 10 listed Supreme Court decisions (including Loper Bright and Jarkesy). Agency heads are to prioritize this immediately after the scheduled end of the regulatory review on April 20, invoking the "good cause" exception under the APA. The original EO 14219 ordered a comprehensive review of regulation and guidance under seven factors, four of which...

The en banc DC Circuit, citing Humphrey's Executor, has vacated the panel's stay of the district court's order restoring the fired MSPB and NLRB members. Especially interesting for financial services given the panel draw in the CFPB injunction appeal -- two of four dissenting judges are on the three-member CFPB panel. The court: "The Supreme Court has repeatedly told the courts of appeals to follow extant Supreme Court precedent unless and until that Court itself changes it or overturns it."

EO 14219 and MRAs, MRIAs & MRBAs -- an example from the FDIC Crypto Documents: EO 14219 orders agencies to de-prioritize (and terminate) enforcement inconsistent with Administration policy and legal views. The banking world saw a wave of terminations last week. But there will be others we can't see. That's because the EO's broad definition of "enforcement action" seems to encompass certain confidential supervisory processes that bank regulators do not typically deem "enforcement" -- including Matters Requiring Attention (MRAs), Matters Requiring Immediate Attention (MRIAs), and Matters...

It seems like the broad regulatory review ordered by EO 14219 was drowned out by last month’s other noise. And, at most agencies, staffing upheaval will make it hard to take rapid deregulatory action. But for the prudential banking regulators, the situation might be different. ➡️ Broad Regulatory Review The EO calls for a government-wide review of regulations AND guidance for modification or rescission under seven legal or policy grounds. Four of the seven implicate conservative legal theories on federalism, delegation, and statutory interpretation. The other three implicate the...

The Justice Department has informed Congress that it views statutory limitations on the President’s power to remove members of multimember agencies to be unconstitutional. In that communication, the Department specifically cited the “for cause” removal provisions applicable to members of the Federal Trade Commission, the National Labor Relations Board, and the Consumer Product Safety Commission. This position, if accepted by the Supreme Court, would have a significant impact on the independence of other multimember agencies, including the Federal Reserve Board (Fed), the Federal Deposit...

On February 19, 2025, President Trump signed an Executive Order directing a broad-based effort to scale back administrative regulations and enforcement across the Federal Government (the “Deregulation Order”). The Deregulation Order calls for a government-wide review of regulations for modification or rescission under seven enumerated legal or policy grounds. It also orders agencies to de-prioritize enforcement inconsistent with Administration policy and legal views, including termination of ongoing proceedings. While the Deregulation Order applies to almost all domestic non-security...

On February 18, 2025, President Trump issued a new Executive Order entitled “Ensuring Accountability for All Agencies” (the “Agency Accountability E.O.”). The Agency Accountability E.O. amends E.O. 12866 issued by President Clinton in 1993 (“E.O. 12866”) and adds requirements for independent regulatory agencies that go well beyond the scope of E.O. 12866. As described below, the Agency Accountability E.O. provides for an unprecedented degree of executive control over independent agencies, not only in connection with rulemaking, but also in connection with policy and budgetary matters. As a...

This past week, President Trump issued an executive order aimed at reducing Federal regulations (“Executive Order”). The Executive Order directs Federal agencies to identify at least 10 existing regulations to be repealed for every new regulation that is proposed by the agency (the “10-for-1 Directive”). This 10-for-1 Directive is similar to an executive order issued in the first Trump administration that required the repeal of 2 existing regulations for each newly issued regulation (the “2-for-1 Directive”). In the first Trump administration, OMB determined that the 2-for-1 Directive did not...

Under current law, the operations of the CFPB are funded by a transfer of “earnings” from the Federal Reserve System to the CFPB. Since the Federal Reserve System is operating at a loss due to rising interest rates and arguably has no earnings, the Administration has been urged to shut down the agency by executive order. (See Chopra is Out. Now Shutter the CFPB, by Hal Scott in the Wall Street Journal, February 3, 2025.) As discussed below, such an order would have some unintended effects on the application of federal consumer financial laws to banks and certain nonbanks. Executive orders...

In anticipation of a series of executive orders by President Trump, this memorandum summarizes the legal basis for, and limitations upon, executive orders. Neither the Constitution nor any federal statute defines an “Executive Order.” Federal law merely requires that executive orders be published in the Federal Register (44 U.S.C. §1505). In 1962, President Kennedy established, by Executive Order 11030, procedural requirements for the issuance of executive orders. Those requirements call for a draft order to be reviewed by the Director of the Office of Management and Budget (OMB) and the...

On May 16, 2024, the U.S. Supreme Court affirmed the mechanism established by Congress to fund the Consumer Financial Protection Bureau (CFPB). The case was brought by trade associations whose members were adversely impacted by a CFPB rule. The plaintiffs argued that the method by which funds are made available to the CFPB violates the Constitutional Appropriations Clause that provides that “[n]o Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” By a 7 to 2 majority, the Supreme Court disagreed, and upheld the constitutionality of the funding system....

We provide comprehensive legal and regulatory support for government relations teams, trade associations, and policy consultants engaged in federal financial services policy advocacy. Our public policy practice covers the full range of advocacy support services, including congressional testimony, legislative drafting, comment letters, regulatory monitoring, FOIA requests, white papers, and strategic engagement with policymakers. We help clients understand regulatory developments, develop informed policy positions, and advocate effectively before Congress and federal agencies. Services...

We support in-house government relations and public affairs teams with substantive legal analysis on financial regulatory and legislative matters. Our work includes analyzing proposed rules and legislation, drafting comment letters and position papers, and providing strategic guidance for engagement with federal regulators and Congress. Services we provide to government relations teams include: Agency Challenges: We provide technical legal advice and strategic counsel to clients who are contemplating or pursuing challenges to agency actions. Bill and Rule Analysis: We provide analysis of...

We partner with policy consulting firms to deliver legal analysis on financial services regulatory and legislative matters. Our work includes written legal analysis on legislation and regulation, preparing regulatory comment letters, drafting legislative amendments, and participating in client calls and meetings on policy issues. Services we provide to public policy consulting firms include: Bill and Rule Analysis: We provide analysis of legislative proposals and regulatory rulemakings, as well as summaries and analysis of comments submitted by other stakeholders. Congressional Testimony: We...