December 09, 2016
This week, the Fifth Circuit decided to expedite review of the federal court decision enjoining DOL’s overtime rule, as time was running out for Congress to be able to immediately repeal the rule upon its return in January. The court’s briefing schedule extends to January 31 but the federal government’s brief will be due January 17, allowing the Obama administration to weigh in three days before the Trump inauguration. This could result in a reversal of the district court injunction, thus reinstating the rule early in the Trump administration. Assuming Congress does not adjourn today, time will have run out for it to be able to pass a Congressional Review Act resolution which, assuming it would be signed by Trump, would immediately reverse the rule. Thus, if the overtime rule is reinstated by the circuit court, the new administration will have to decide how to proceed. It is worth noting that Trump’s announced nominee for Secretary of Labor, Andy Puzder, has been an outspoken opponent of the rule. The question will be how it can be dealt with without going through the lengthy Administrative Procedures Act requirements that typically accompany repeal or revision of a rule.