The business lobby may not agree with President-elect Donald Trump's protectionist and anti-immigration policies. But those disagreements "pale in comparison to the large amount of agreement" between pro-business groups like the US Chamber of Commerce and the incoming president, said Michael Carvin of Jones Day, a prominent constitutional lawyer who has litigated against the Affordable Care Act and other Obama administration initiatives. Carvin and other legal experts told me Tuesday that President Trump and a Republican Congress have a chance to roll back federal agency prohibitions on mandatory arbitration clauses, enact legislation to restrict private lawsuits and undo laws already on the books, including Obamacare and Dodd-Frank financial reform. "We have an opportunity to change the course of actions that have been barreling down on us," said Lisa Rickard, president of the US Chamber's Institute for Legal Reform. "We will try to be really focused. This is not pie-in-the-sky time." On Rickard's list of possibilities are laws to restrict class actions and to require more transparency from trusts that administer claims by asbestos victims. Those measures have previously passed in the House of Representatives but have not been adopted by the Senate. Democrats still have enough votes in the Senate to filibuster legislation. Many business groups would be thrilled, for instance, if Congress abolished the Consumer Financial Protection Bureau, which was established in Dodd-Frank, but the filibuster remains an obstacle unless the Senate changes its rules. President Trump would not need Congress, however, to reverse Obama administration regulations disfavored by business groups, including agency prohibitions on mandatory arbitration clauses in consumer and employment contracts. "His regulatory emphasis is in line with the Chamber of Commerce view on energy, the environment and financial reform," Carvin said. The National Association of Manufacturers, which is leading challenges to Obama environmental and labor regulations, has already begun a dialogue with Trump staff about why it believes such regulation impedes manufacturing, according to Ross Eisenberg, NAM's vice president of energy and resources policy, and NAM general counsel Linda Kelly. Kelly said that once he takes office, President Trump could roll back the Obama rules at the heart of NAM legal challenges, but the new administration's regulatory priorities are still "a little unclear to us." President Trump could also use his executive authority to cripple Obamacare, according to another legal expert, without legislation to repeal the ACA. Obama regulators used administrative actions to fix implementation problems with the original law, this expert said. President Trump's administration could undo those regulatory fixes to undermine the law. In addition, Trump could attempt to defang the CFPB by removing its director, Richard Cordray. Under Dodd-Frank, the CFPB director is appointed to a five-year term, but the District of Columbia Circuit Court of Appeals recently ruled the constitutionality of the agency depends on the president's ability to fire the director at will. That ruling may not hold up, but it's at least a temporary rationale for the Trump administration to oust Cordray. Unlike the last Republican president, George W. Bush, Trump did not make legal reform a talking point in his campaign. As a real estate developer and businessman, he made frequent use of the court system. Even as a candidate, he threatened suits against media groups, opponents and accusers. Trump's litigiousness drew criticism from the American Tort Reform Association last February. ATRA spokesman Darren McKinney said groups like his don't yet know Trump's views on issues like mandatory arbitration provisions and restricting class actions. (As a candidate, Trump was certainly critical of at least one class action, the fraud case against him and Trump University by attendees, which is scheduled for trial later this month.) McKinney said, though, that he's confident President Trump will appoint federal judges more like Justice Antonin Scalia than Justice Sonia Sotomayor, an Obama appointee. "That alone, to borrow his phrase, is yuge," McKinney said.
