Trial Magazine

On Jan. 3, the 115th Congress will be sworn into office, and on Jan. 20, President-elect Donald Trump will be inaugurated. The election results surprised many of us, but here at AAJ, we immediately began to focus on how to protect the civil justice system.

Congress starts over. During the last Congress, we followed an immense number of bills—more than 700. But now, sponsors must introduce or reintroduce legislation and work to gather support. It’s easier for legislators to garner support from colleagues who are already familiar with a measure, so this restart is why a new Congress often gets off to a slow start. This delay works to our advantage when the goal is to block a measure that is bad for your clients and your practice.

The path to preserving your cases. We fully anticipate that the House Judiciary Committee will hold hearings and pass anti-civil-justice measures out of committee. Our job will be to garner as many “no” votes as we can to slow down bills that preempt state tort law and take away Seventh Amendment rights.

Although President-elect Trump has been a party in numerous lawsuits, there is no guarantee that he would veto anti-civil-justice measures sent to his desk by members of his own party.

We have no choice but to stop these bills in the Senate. Majority Leader and tort reform supporter Sen. Mitch McConnell­ (R-Ky.) controls which bills are debated on the Senate floor, but there are enough civil justice supporters to make a filibuster possible and deny the majority a final vote on a bill.

One of the highest priorities of both President-elect Trump and the Republican-controlled Congress is to repeal and replace the Affordable Care Act (ACA). We do not yet know what the Trump administration’s ­replacement is, but Congress has consistently included anti-civil-justice measures for medical malpractice, medical products, and nursing home cases in its repeal repertoire. AAJ fought back these measures during the debate on the ACA, and we anticipate that we will need to do so again.

Agency rulemaking. An agency ­rulemaking does not operate the same way as legislation. However, significant rules will likely become hampered by a new administration that may not want to issue final rules from the previous one. Congress also may act to stop pending rules by passing policy riders—attachments to must-pass appropriations bills—prohibiting agencies from taking action. Even final rules issued by the Obama administration are at risk.

For example, the Centers for Medicare and Medicaid Services issued its final rule prohibiting federally funded nursing homes from using pre-dispute forced arbitration agreements against residents, but the nursing home industry is challenging it in court.

The Department of Labor’s fiduciary rule to address conflicts of interest in retirement advice is scheduled to go into effect in April, but the new administration could decide not to enforce it by executive order. This rule is also being challenged in court.

Judicial nominations. As of Dec. 7, there were 105 judicial vacancies, including one on the U.S. Supreme Court, 13 in circuit courts, and 83 in ­district courts. The Senate has refused to confirm any of Obama’s judicial nominations, including that of Judge Merrick Garland to the Supreme Court. Elections have consequences—unfortunately, this is one of them.

We are all in this together. Do you have a colleague or an associate who is not an AAJ member? Help us grow our numbers so we can take justice back. Contact Amber Gershman at amber.gershman@justice.org for firm membership­ options.