As Inauguration Day approaches, clients across a range of industries have understandable questions about how a change in presidential administrations will affect federal regulation. Indeed, transitions between presidential administrations typically usher in a period of considerable regulatory upheaval, as policy priorities are reversed and federal agencies reconsider their approach to an array of significant regulatory issues. Recurring questions that arise during presidential transitions include: What will the US government do in existing litigation in cases challenging agency rules from the prior administration? What options are available for federal agencies to revisit or rescind prior regulations? What, if anything, can stakeholders do to anticipate regulatory changes? What options are available to challenge so-called “midnight” regulations? And does the Congressional Review Act represent a way to roll back unnecessary regulations?

Amid this period of regulatory uncertainty, businesses in regulated industries need agile, experienced counsel who can advise them on what the transition means for them and represent their interests before the agencies, in the policy arena, and in the courtroom. WilmerHale has launched an Administrative Law Transition Task Force—a team of seasoned litigators and other lawyers, many of whom have served in senior roles in federal agencies—that stands ready to guide clients, answer their transition-related questions, and help them capitalize on the opportunities and address the challenges likely to arise in this unique moment of transition and regulatory change.

Transitions Raise a Host of Administrative Law Issues

The shift from one presidential administration to the next is frequently a catalyst for litigation under the Administrative Procedure Act (APA), and the present transition is no exception. To the contrary, we expect administrative law issues to be front and center in this transition, as well as the first year of the new administration, in multiple ways.

First, we expect to see significant APA litigation in the coming weeks and months, especially in light of three recent US Supreme Court decisions (Loper Bright, Corner Post, and Jarkesy) that have rendered federal agency actions more vulnerable to challenges in the courts. Legal challenges are likely with respect to many so-called “midnight rules”—regulations rushed out during the period between the election and Inauguration Day. These rules may also raise Congressional Review Act issues, a topic on which the firm has substantial experience. Second, with respect to ongoing APA litigation challenging the prior administration’s regulations, there will be a host of issues as the new administration reconsiders its approach. In general, a legislative rule that has been promulgated through notice-and-comment rulemaking must be undone through notice-and-comment rulemaking. But whether and how the new administration will continue to defend existing rules are questions that have substantial legal and policy dimensions. Third, and more broadly, efforts by a new administration to achieve new regulatory or deregulatory objectives will predictably generate multiple APA-related questions—including how agencies can roll back or rescind prior sub-regulatory documents (such as agency guidance)—and potential litigation.

WilmerHale Is Uniquely Well Positioned to Help Clients Navigate These Challenges

Our Administrative Law Transition Task Force is uniquely well situated to address the range of issues that follow a change in administration. With decades of experience counseling clients and litigating cases under the APA, our team has worked through multiple presidential transitions and knows how to navigate the shifting regulatory, litigation, and policy environment to help our clients achieve their goals.

We have substantial experience both litigating challenges to agency actions under the APA and representing clients in agency proceedings. Whether in district courts, courts of appeals, or the Supreme Court, APA litigation is a core strength of our firm, drawing on our deep regulatory expertise, our familiarity with the policy landscape, our renowned appellate and Supreme Court capabilities, and our strength as trial lawyers. We work with trade associations and large and small businesses in numerous industries to challenge federal agency actions that transgress statutory or constitutional limits. We also represent parties that support agency actions—including decisions to deregulate—that are challenged by others.

Our firm includes lawyers who have served in senior positions in a variety of federal agencies—including the Justice Department, which is tasked with defending agency actions in court—and have substantial knowledge of and experience across a wide range of regulated industries. We have handled legal challenges to agency regulations involving the gamut of federal agencies, from the Consumer Financial Protection Bureau to the Food and Drug Administration to the Securities and Exchange Commission and beyond.

In addition to our roster of lawyers who have served in more than a dozen executive-branch agencies, our firm boasts a highly regarded, Washington DC-based public policy and legislative affairs team that maintains important relationships with congressional leaders from both sides of the aisle and includes alumni from the White House and key congressional committees. When clients face complex administrative law issues—which are heightened during transitions between administrations—we develop and implement multi-branch strategies and map out alternative paths to achieve their goals across the government and with relevant policymakers. Having a legal team that can draw on public policy expertise is critical to effectively resolving many of the issues that arise during a presidential transition.

Select Firm Experience

Our firm’s experience navigating complicated legal issues arising during presidential transitions is substantial, and includes the following:

• Obtaining a preliminary injunction under the APA against a new midnight “interim final” regulation promulgated by the outgoing Department of Health and Human Services without notice and comment that would have posed an existential threat to certain healthcare providers.
• Representing multiple trade associations in high-profile APA litigation challenging an Obama-era Department of Labor regulation that carried over into the first Trump administration.
• Representing a financial technology company in an APA challenge to a CFPB regulation of certain digital wallets spanning the Trump and Biden administrations.
• Representing tech companies in an APA challenge to the Patent and Trademark Office’s rules governing inter partes reviews.

• Representing California citrus growers in an APA challenge to a Department of Agriculture import regulation that spanned the Obama and Trump administrations, and representing California grape growers in a similar challenge to a regulation adopted late in the Biden administration.
• Representing an association of property casualty insurers in an APA challenge to a Department of Housing and Urban Development regulation that has spanned multiple presidential administrations.
• Representing medical and other associations in APA litigation challenging a decision by the FDA early in a new administration not to enforce provisions of the Tobacco Control Act.

• Advising clients on Congressional Review Act questions.

• Advising clients in diverse regulatory areas—including securities regulation, communications regulation, trade law, and higher education—regarding legal and policy questions raised by changes in presidential administrations.

As the second Trump administration gets underway, there are actions businesses can take to protect and advance their interests and navigate the rapidly changing regulatory landscape. Contact WilmerHale’s Administrative Law Transition Task Force for information on how we can help.