Belway Buzz – Ogletree & Deakins
Impeachment. Take-Two. On January 13, 2021, the U.S. House of Representatives voted to impeach President Donald J. Trump on one count of “incitement of insurrection” by a vote of 232–197 (10 Republicans voted to impeach and 4 did not cast votes). He is the first president to have been impeached twice.
Because President Trump has only one full day left in office, what happens next is a bit unclear. First, there is some legal debate as to whether the United States Constitution’s impeachment process allows for conviction after a president leaves office. Second, and perhaps more importantly for the Buzz, because the impeachment trial likely won’t start in the U.S. Senate until sometime next week, it will surely impact President-elect Joseph R. Biden’s agenda, especially during Biden’s crucial first 100 days in office. (The previous presidential impeachment trials lasted 21 days, 37 days, and 83 days, respectively.)
There is particular concern that the impeachment trial could disrupt or delay the confirmation of executive branch nominees, especially in the area of national security. (The U.S. Senate Committee on Homeland Security and Governmental Affairs, for example, has scheduled a hearing on the nomination of Alejandro N. Mayorkas to be secretary of the U.S. Department of Homeland Security for January 19, 2021, which is the date that the impeachment trial may begin.)
Here is the bottom line: next week we will usher in a new presidential administration while the Senate potentially kicks off an impeachment trial of the outgoing president. Buckle up.
EEOC Finalizes Conciliation Rule. On January 14, 2021, the U.S. Equal Employment Opportunity Commission (EEOC) published final amendments to its regulations governing the conciliation process. According to the Commission, the new rule “will enhance the conciliation process for all parties to conciliation and may focus discussions in a way more likely to achieve a meeting of the minds or, alternatively, clearly distill areas of disagreement that may aid the Commission in subsequent litigation.” Pursuant to the new rule, in a conciliation process, the Commission will:
- “provide the respondent with a written summary of the known facts and non-privileged information that the Commission relied on in its reasonable cause finding, including identifying known aggrieved individuals or known groups of aggrieved individuals for whom relief is being sought, unless the individual(s) has requested anonymity”;
- “provide the respondent with a written summary of the Commission’s legal basis for finding reasonable cause”;
- “[p]rovide the respondent with the basis for monetary or other relief, including the calculations underlying the initial conciliation proposal”;
- “advise the respondent in writing that the Commission has designated the case as systemic, class, or pattern or practice as well as the basis for the designation”; and
- “[p]rovide the respondent at least 14 calendar days to respond to the Commission’s initial conciliation proposal.”
The rule goes into effect on February 16, 2021. Finally, while we might sound like a broken record, we are duty bound to remind you that this regulation is subject to rescission under the Congressional Review Act.
EEOC Data Collection. Speaking of the EEOC, this week the Commission announced that it would collect 2019 and 2020 equal employment opportunity (EEO) data in 2021, with EEO-1 data collection beginning in April 2021. A specific opening date of the collection has not been announced. Over the summer, the Office of Management and Budget approved a new EEO-1 form, which is really the old EEO-1 form, in that it just collects Component 1 demographic data. It does not collect wage and hours worked data. The new form is effective through June of 2023.
Wolf Leaves the Pack. On January 11, 2021, Chad F. Wolf stepped down as acting secretary of the U.S. Department of Homeland Security (DHS). Wolf cited “ongoing and meritless court rulings regarding the validity of [his] authority as Acting Secretary” as one of the reasons for his departure. Peter T. Gaynor, administrator of the Federal Emergency Management Agency, will replace Wolf as acting secretary. DHS has not had a Senate-confirmed secretary since Kirstjen M. Nielsen departed on April 10, 2019.
AFL-CIO Announces 2021 Priorities. This week, the AFL-CIO announced its Workers First Agenda, which contains the labor organization’s five priorities for 2021. Topping the list? Enactment of the Protecting the Right to Organize (PRO) Act. The union’s second priority is the promulgation of a COVID-19 emergency temporary standard.
President for a Day. President-elect Biden will be inaugurated as the 46th president of the United States on January 20, 2021. The January inaugural date was established pursuant to the United States Constitution’s 20th Amendment, which was ratified in 1933. Prior to that, all presidential inaugurations (with the exception of George Washington’s) were scheduled to be held on March 4, which was the date in 1789 that the federal government began operations under the newly ratified Constitution of the United States. This date created a few interesting situations when March 4 fell on a Sunday. For example, in 1849, President James K. Polk’s term ended at noon on Sunday, March 4, but the inauguration of President-elect Zachary Taylor (who in observance of the Christian Sabbath would not conduct his inauguration ceremony on a Sunday) did not occur until the following day. So who was president on March 4, 1849? Some newspapers at the time ran stories claiming that the Senate’s president pro tempore, David Rice Atchison of Missouri, had ascended to the presidency pursuant to the Presidential Succession Act of 1792. But while the historical consensus is that Taylor automatically became president upon the expiration of Polk’s term, a plaque below a bronze statue of Atchison in Plattsburg, Missouri, reads, “David Rice Atchison, 1807–1886, President of United States One Day.”