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DAPL: Protest Camp Burned to the Ground, What’s Next?

A few weeks back, heavily armed and outfitted police took the final steps in clearing out the camp which has housed Dakota Access Pipeline (DAPL) protesters for over a year; carrying out a raid removing the last of the peaceful protesters from a burnt down camp

The protest has, from start to finish, been totally peaceful on the part of demonstrators, however the final raid is just one of many intense and heavily armed encounters between the protesters and police or DAPL security personnel.  While in the immediate wake of the raid many thought the police themselves burnt down the camps, it has surfaced that the reality of the situation is that the demonstrators themselves held a ceremony in which they burned down their tents in order to not see them destroyed by others.

North Dakota Gov. Doug Burgum had set a final date by which all protesters needed to leave the camp or face arrest.  Those who left prior to this cutoff date were told that they would not face arrest and would be provided with vouchers for buses and lodgings away from the camp.  While the camp had once housed as many as 10,000 people, when the Gov. set his cutoff date only that number had substantially diminished.  The majority of the remaining protesters had left the camp after the ceremonial fires the day of the cutoff, marching out arm in arm.  When the raid began, counts left those remaining between forty and a hundred demonstrators.  The police moved in on these remaining few the day after the cutoff, February 23rd, and arrested dozens of people with at least one recorded arrest appearing to seriously injure a peaceful protester.


This raid has come less than a month after President Trump’s executive order reversing an Obama administration order to stop construction on the pipeline.  The Standing Rock Sioux had long argued that the pipeline violated their treaty rights by failing to properly consult them as to the construction of the DAPL through their ancestral lands–lands they had the right to protect under both previous court rulings and treaties between the tribe and the government.  They argued that the environmental impact of the pipeline would render much of the drinking water their tribe uses undrinkable.  There is some serious evidence to support their concerns, the original plan for the pipeline was changed to this new location through their lands after fears of pollution made the pipeline shift away from a populated city.  Just last December, there was big oil spill right by where the Standing Rock camp used to be with about 130,00 gallons of crude spilling into Ash Coulee Creek and yet more seeping into the surrounding hills to potentially contaminate ground water.  An investigation was unable to provide a reason why the spill occurred so no further action has been taken.

It was because of dangers like these that the Obama administration halted the construction for a much more thorough review of the potential environmental impact of the pipeline.  Trump’s order substantially truncated that review and ordered his agencies to approve the pipeline as quickly as possible.  So with Trump’s order and the camp burned to the ground, it is easy to look at the DAPL protests as a finished battle.  However, while the camp the protesters stayed at might lay empty the struggle of the DAPL still has a number of battles still ongoing in the courts.

The Ongoing Legal Battles of the DAPL Protesters

First and foremost, the order of the Trump administration pushing through the DAPL is itself facing legal challenges from organizations supporting the DAPL protestors.  This action seeks to enforce the treaty rights discussed above and argues that the truncated approval process continues to violate these treaty rights.  This lawsuit will be the forefront of the efforts to halt work on the DAPL.  However, it is far from the only ongoing legal battle stemming from the DAPL and the actions of the government.

Lawsuits have also cropped up, some months back over excessive force on the part of the police and DAPL security in how they’ve dealt with otherwise peaceful protesters.  Most have seen the videos of high-power hoses, dogs, and pepper spray used on non-resisting protesters.  As mentioned above, the most recent raid resulted in what appeared to be a serious hip injury to a protestor.  These ongoing lawsuits are based in a claim of excessive force, a cause of action which generally requires the plaintiff to show that the police used more force than was reasonably necessary.  A determination of how much force is necessary looks to many factors, such as the amount of force used, whether the force was used against an armed suspect, and whether the suspect was subdued prior to using the force.  Another element commonly looked to in these cases is whether the force was in line with police procedures for use of force.  Where it is, it can be very difficult to succeed in such a case.

The force used by police and DAPL security is often well documented through video evidence.  However, these type of cases hinge on the unreasonableness of the amount of force.  This can be very tricky to prove in court.  What’s more, while many criticize the arrests as a violation of the First Amendment right to assemble the legal reality is that, while the arrests certainly appear to use much more force than necessary for peaceful protestors, the right to assemble is not without some exceptions.  The government can put neutral restrictions (restrictions not targeting a specific group or viewpoint) on the time, place, and manner of assembly.  This often takes the form of permitting for protests.  Refusing to grant such a permit may be a violation of the right of free assembly, however the right does not grant as much protection to these unpermitted protesters as many seem to believe–regardless of how good their cause may be.

Finally, there are also lawsuits challenging the police use of warrants to seize and search the Facebook accounts of DAPL protest organizers.  These lawsuits hinge on the warrants violating constitutional protections by being too broad as to be permissible and chilling political speech.

Unforeseen Consequences of the Protests

While the legal battles in the court rages on, the protests will also have a lasting effect due to lawmakers around the country.  In an unfortunate turn of events the DAPL protests, along with the increasing number of protests around the country, have led to laws being passed making it harder to protest.

Just recently, we discussed a proposed Arizona law which would have allowed police to arrest peaceful protestors before any crimes were actually committed, target organizers specifically, and seize assets of those who had not even yet attended a protest.  Fortunately, this bill has since been discarded, but it is far from alone.  Ten different states have proposed legislation expanding the definition of protesting, making more elements of protesting illegal, and enforcing harsher punishments against protesters.  In North Dakota, where the DAPL protesters are based, bills have been passed making it illegal for a protestor to wear a mask (even to protect the face from the elements or pepper spray) and changing rioting from a misdemeanor to a serious felony carrying a penalty of a $20,000 fine and 10 years in prison.

There is very little more American than political protest, we owe the very seeds of our nation to it.  However, we unfortunately also owe our nation to lands taken unfairly from Native Americans.  This has led to the many court cases supporting the treaty rights and land rights of tribes such as the Standing Rock Sioux.  It is sad to see the response to their protests be so violent and end in flames.  They have many legal battles ahead of them, some with a better chance for success than others.  Hopefully, the results of these legal battles will be the ultimate legacy of the DAPL protests and not a perverse response to criminalize the very thing our country was founded on–political resistance.

Media Ban: Can the White House Block Media Coverage?

Just a few months ago in December, Press Secretary Sean Spicer told the world that it is open media access which distinguishes a democracy from a dictatorship.  This statement has become fairly ironic after, a little over a week ago, several news outlets which had previously reported unfavorably on President Trump were barred from a private press briefing in Sean Spicer’s office.  This press briefing replaced the usual daily public briefing.  Most of the biggest media outlets were allowed a representative at the meeting: NBC, ABC, Fox News, and CBC.  However, several much smaller, heavily conservative, news outlets were also given a seat at the table: the Washington Times, the One America News Network, and Breitbart–the far-right news organization founded by White House Chief Strategist Steve Bannon.  The news organizations banned from the meeting included CNN, the New York Times, the Los Angeles times, and nearly every foreign news provider including the BBC.

Media outlets, both those invite to the meeting and those barred, have spoken out against the move; calling it “unamerican” and an unprecedented move towards a lack of transparency.  The move has also received substantial criticism from the public.  Much of this criticism is focused either on the importance of a government that is accessible to its people and the potential that the move violated the First Amendment.

Media BanClosed doors meetings, only inviting those media outlets most favorable to an administration, certainly smacks of impropriety.  However, to call it a violation of the First Amendment is going a bit further than the legal reality.  So let’s look at exactly what the White House did here, why they say they did it, and exactly how what they did interacts with the First Amendment.

Why They Say They Made the Change and How it is Legal

When the government is keeping out news reporters because they don’t like what they say, that’s bad news for the country.  Protecting political speech and the transparency of government to comment on their actions is crucial.  Were the stated goal of the government in keeping specific news outlets, those unfavorable to them, to silence their opposition then there would be a serious case that they are violating the First Amendment.  However, the White House has provided a more neutral reason behind their choice to conduct themselves as they did.

While Sean Spicer has promised to “aggressively push back” against news outlets negatively reporting on the Trump administration, he says this is not the reason for limiting access to the press briefing.  Instead Mr. Spicer stated that the space for seating was limited that day due to time and space being more limited due to President Trump’s CPAC speech earlier the same day.  It is true that it is fairly common for the press to be represented by a smaller press pool.  The members of this pool rotate from day to day and report what they are told to the remainder of the certified press.  What Sean Spicer did was choose to allow a few extra news outlets, news outlets most favorable to the Trump administration, to join that small group.

It may or may not surprise you that there is no actual requirement for the government to give reporters completely equal access to information based on the First Amendment Freedom of the Press.  However, when the government opens up a public forum such as the daily press briefings have been for decades they are required to allow access to the press in a neutral manner.  This means that they can’t act with the intention of limiting access to those whose message or coverage they prefer.  Sean Spicer’s stated reason of limiting access, the amount of space, is likely a neutral approach–even if the result of their actions looks like they are favoring news outlets which report more positively on the administration.  If this happened several more times, with the same people left out, the story might change as the neutral explanation of lack of space and time would become less believable.

The concept of the government and politicians allowing more access to reporters they know to be favorable to their cause is far from a new one.  There have been many cases, both very recent and decades since finished, which have addressed the issue.

Repressing the Press: Court Rulings on How the Government Can Limit Press Access

Since a 1977 U.S. Court of Appeals ruling, the White House press facilities have been public sources of information for the press afforded First Amendment protection.  This means that the access of the press cannot be denied arbitrarily for less than a compelling reason.  Any restrictions must be no more arduous than necessary and individual reporters–from specific publications–cannot be arbitrarily excluded from a source of information such as a White House press briefing.  That basically just means the White House needs to be able to provide an explanation for any limitations, especially when it comes to barring specific publications.  They also need to make their limitations as narrow as possible.  This means that if space and time was indeed limited, they’ve provided sufficient reason for their actions barring a proven bias in who was allowed in.

This doesn’t mean that the government must always offer all types of access neutrally.  There have been several cases in the past establishing that a government official can choose who they want to give an interview to, and even bar their employees from speaking to some news providers.  They just can’t call a press conference and limit who can show up by barring specific reporters or news sources.

In fact, just around a week ago another ruling has come out of New York clarifying just this issue.  The preliminary ruling decided that the New York Police Department had acted unconstitutionally by revoking the press credentials of a specific reporter.  The fact that they targeted a specific reporter based on the content of his reporting, although the NYPD stated they had neutral reasons behind revoking the man’s press pass, made their actions unconstitutional in the eyes of the judge on the case because they amounted to the government censoring a particular viewpoint in a public forum–a concept known in law as viewpoint discrimination.

Trump’s War With the Media

The choice to limit those who could attend a press briefing might not always have raised as many eyebrows as it has here.  President Trump has repeatedly attacked the media’s reputation and veracity, claiming that they either do not report on the right things or are misrepresenting him.  While he has made these claims repeatedly, he has not yet provided any evidence supporting these serious accusations.  However, regardless of the truth of President Trump’s words, the comments have drawn substantial attention to his relationship to the press.

President Trump is far from the first President to criticize the media, however he has taken his attacks further than any president has before–to the point of essentially questioning the legitimacy of the media altogether.  This is a huge accusation to make with very little evidence.  It is because of this that, when the White House chooses to limit press access, alarm bells are immediately raised.  Regardless of what you think about the media, allowing the government to limit which media outlets receive information has potentially terrifying implications when it comes to making our own government transparent to the people it serves.  This being said, the White House has not yet crossed any legal line.  There has been no similar limitation on access since President Trump’s CPAC speech.  While it is important to information about our government as available to the people as possible, for now the White House has done nothing unconstitutional.


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Uber is Under Fire, Again, for Sexual Harassment

Uber, the online transportation company whose app allows its users to hire private drivers, is making headlines again. About a month ago, angry customers began tweeting the #DeleteUber hashtag after Uber decided to suspend surge pricing during a taxi strike at JFK airport in protest of President Trump’s immigration ban. Customers accused Uber of strikebreaking and taking advantage of the immigration ban in order to promote itself.

The #DeleteUber hashtag has again appeared on social media following a claim of sexual harassment by a former employee.  Susan J. Fowler, a former Uber engineer, released an essay reflecting on her two year employment. She described it as “a strange, fascinating, and slightly horrifying story,” recounting a time when a manager propositioned her for sex.

Uber’s Response to Sexual Harassment Allegations

UberFowler claims that she complained to Human Resources about her manager’s request for a sexual relationship. In response, H.R. told Fowler that this was his first offense and that they were not going to reprimand him for his behavior. Instead, they made Fowler feel like she was in the wrong and encouraged her to transfer to a new team or risk getting a bad review from her manager. Feeling like she had no other choice, she ultimately transferred teams. Fowler later discovered the manager had propositioned several female Uber employees for sex and H.R. turned a blind eye to his behavior because he was a “top performer”.

In response to Fowler’s essay, Uber CEO Travis Kalanick has hired two attorneys to independently investigate the accusation.

What is Sexual Harassment?

Sexual harassment is a type of employment discrimination consisting of unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature.

There are two types of sexual harassment: quid pro quo and hostile work environment. Quid pro quo harassment occurs when a supervisor or an authority figure requests sex, sexual favors or a sexual relationship in exchange for either not firing or punishing the employee or in exchange for favors, such as a promotion or raise.

Hostile work environment harassment occurs when there are frequent or pervasive unwanted sexual advances, comments or requests. It can also occur when there is other verbal or physical behavior, like sexual jokes, displaying inappropriate offensive material (such as watching porn on your computer screen in the workplace), or persistent unwanted interactions, such as asking for dates continually.

Other Allegations of Sexual Harassment

According to Fowler’s essay, there were several female employees who complained that the same manager propositioned them for sex and when these women reported the behavior to H.R., they were told it was the manager’s first offense, just like Fowler. Since Fowler’s essay surfaced, another female employee has come out and said her manager groped her breasts at a company retreat in Las Vegas. Other Uber female engineers have acknowledged that Uber has a systemic problem with sexism. There may be more stories of sexual harassment that have not been publicized due to fear of retaliation or non-disclosure clauses in their employment contracts.

Can Fowler Sue Uber for Sexual Harassment?

While Fowler certainly can sue Uber for sexual harassment, she is unlikely to prevail. Her essay recalls an instance where her superior requested she engage in a sexual relationship with him. The sexual conduct did not appear to be made a term or condition of her employment at Uber. Further, Fowler was neither promised a benefit if she acquiesced, nor threatened harm if she refused. For this reason, a claim of quid pro quo sexual harassment would not be found.

Neither would a court of law find Uber guilty of a hostile work environment. Fowler describes a single incident. One of the key elements of hostile work environment sexual harassment is that the conduct must be both severe and pervasive. In other words, the behavior must last over time, not just be a singular incident. It is important to note that the conduct must be pervasive with regard to a particular employee and continuous over time. Even though Fowler’s manager propositioned other women at Uber for sex, it is unclear whether he made sexual advances to any one employee more than once and over a long period of time. What we do know is Fowler was approached once. Without more evidence of continuous harassment, hostile work environment sexual harassment would not be found.

Trump is Giving Power Back to Wall Street with Another Executive Order

In the wake of the Great Recession of 2007-2009 and the many bank failures that substantially contributed to the recession itself, the nation was calling out for laws ensuring that banks “too big to fail” never again caused a similar recession.  Many found the idea that a bank could fail and then necessitate buyout on the taxpayers dime, and potentially deal a serious blow to the economy in the process, was particularly upsetting.  While the fury of the nation was real, and the government began the process of attempting reforms, actually putting regulations into effect which held banks to a higher standard was more of an uphill battle than one might expect–even in the wake of huge bank buyouts shaking the economy to the core.  However, in 2010 President Obama finally signed into law the Dodd-Frank Wall Street Reform and Consumer Protection Act–one of the most substantial banking reforms the nation has seen.  Now, less than a decade later, one of President Trump’s recent executive orders threatens to remove the precautions against a repeat of the many bank failures in the early millennium.

The move isn’t necessarily a surprise, Trump and those close to him have repeatedly targeted Dodd-Frank as overly restrictive and bad for business–making investing more difficult than necessary.  Trump was quoted during an open portion of a meeting with CEOs of businesses such as Wal-Mart and Pepsi stating that he would be “cutting a lot out of Dodd-Frank.”  In truth, his position is even less of a surprise given that the law has been labeled by conservatives as government meddling with the private sector since it was first made law.

wall streetSo now that Trump has come down on Dodd-Frank, it seems like a good time to explain exactly what Dodd-Frank does and what President Trump’s executive order does to Dodd-Frank.

What Does Dodd Do?

Dodd-Frank itself is an incredibly complex bit of legislation, the Act itself is over 800 pages long with over 240 individual rules.  It’s one of the most substantial financial reforms in the history of the United States.  It’s been compared to the changes that came after the Great Depression and, in fact, it includes some elements of the Glass-Steagall Act–a set of banking reforms which were put in place after the bank failures of the Depression.

Despite its complexity, Dodd-Frank’s most important changes can be fairly simply explained–although a complete understanding could fill volumes.  Dodd-Frank creates a few new agencies which ensure the stability and best practices of banking institutions, requires greater government oversight of banking activities, removes Securities and Exchange Commission reporting loopholes, increases the amount a bank must keep in reserve to guard against economic downturns, and requires banks to keep larger portions of their money invested in things which can be easily turned into cash again.  It also reintroduced Glass-Steagall, as mentioned above.  Glass-Steagall was originally a law forbidding banks from running trading operations such as those that contributed to the real estate bubble, however the law had been systematically gutted since it was introduced back in 1933.  Dodd-Frank reintroduced some of these limitations as the Volcker Rule–substantially limiting the ability of banks to run trading operations.

Where banks are particularly big, over $50B in assets, Dodd-Frank could requires annual stress tests–basically a report proving the bank could survive another recession like the one that just passed.  The biggest banks, the Chases and Bank of Americas of the world, are required to submit a report every year describing how they could be dismantled without harming the economy–basically a will for their business.

The agencies created by Dodd-Frank include the Financial Stability Oversight Council, the Office of Financial Research, and the Bureau of Consumer Financial Protection.  These all have duties regulating the banking industry and ensuring it’s stability.  For instance, the Bureau of Consumer Financial Protection is tasked with protecting the public from deceptive, unfair, or abusive financial services.  The Act also expands and changes the powers of existing regulatory agencies to some degree.

To sum it up, Dodd-Frank is put in place to make sure banks don’t go down a road that could lead to another Great Recession.  Many consider it the only truly effective law of its type to be successfully enacted after the many bank buy-outs.

Trump’s Executive Order

So what exactly does Trump’s order do to Dodd-Frank?  By itself, probably not as much as he’d like. Executive orders don’t “trump” congressional acts, they simply don’t have the authority.

Trump’s order, titled Presidential Executive Order on Core Principles for Regulating the United States Financial System, mostly puts forth seven principles of regulation which read as follows:

  • empower Americans to make independent financial decisions and informed choices in the marketplace, save for retirement, and build individual wealth;
  • prevent taxpayer-funded bailouts;
  • foster economic growth and vibrant financial markets through more rigorous regulatory impact analysis that addresses systemic risk and market failures, such as moral hazard and information asymmetry;
  • enable American companies to be competitive with foreign firms in domestic and foreign markets;
  • advance American interests in international financial regulatory negotiations and meetings;
  • make regulation efficient, effective, and appropriately tailored; and
  • restore public accountability within Federal financial regulatory agencies and rationalize the Federal financial regulatory framework.

On its face, this seems to almost support Dodd-Frank.  The Act definitely is designed to help prevent taxpayer-funded bailouts; one of the stated goals of the order.  However, a combination of context and another part of the act point in a different direction.

The order seeks to “make regulation more efficient.”  This has been a hallmark of Trump’s statements and actions, an attempt to make regulations more efficient by removing them all.  He recently signed an order requiring  agencies to identify two restriction of any type which could be removed before any new restriction will be considered–an entire order that less regulation must always be better than more regulation regardless of what it might accomplish.  That same order also puts a cap of $0 on the expenses involved in any new regulations in 2017.  With this and Trump’s many statements on his preferred approach to Dodd-Frank in mind, the Core Principles order gives agencies 120 days to identify elements of Dodd-Frank that aren’t working.

This sends a message that Dodd-Frank is in line for a pruning.  While Trump couldn’t do so explicitly by executive order, he can act through his many agency appointees to dismantle the rule in parts.  This was how Glass-Steagall was gutted decades ago.  He could reinterpret and alter the requirements of enforcement of Dodd-Frank and delay the implementation of some of its elements.  He may not even need to however, Congress itself has begun attacking elements of the law–just recently introducing bills aimed at closing the doors on the Bureau of Consumer Financial Protection.

Who Does this Help?

A complete repeal and replacement of Dodd-Frank is unlikely to leave the banks particularly happy.  They’ve already spent billions between them to ensure they are in compliance with Dodd-Frank, a new or changed set of regulations just makes them shell out to comply with it.  However, relaxing or delaying parts of the law–especially those allowing them to invest more widely and with less reporting and oversight–would certainly be in their best interests.

The argument for reducing restrictions on banks has primarily been that less regulations will mean more money and easier investment and loan activity for banks.  However, this is the exact situation we set out to avoid after bad bank investments led to bank failures which, just a few years back, brought our economy to such extreme lows.  Without Dodd-Frank, or with a gutted version of it, we’ll just have to hope banks have learned their lesson.

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Retirement May Have to Wait After Trump’s Latest Executive Order

The presidential orders continue to come thick and fast from the Trump administration.  One of President Trump’s most recent orders, titled Presidential Memorandum on Fiduciary Duty Rule, takes aim at deregulating those who invest your retirement funds.  It does this by undercutting something we have discussed on this blog before–the Obama Administration’s changes to the duty somebody investing your retirement funds has to you.

Planning for retirement is always challenging.  With that in mind, you always want the best possible advice.  However, the standards the people giving you that advice are held to might surprise you–and not in a good way.  The fiduciary duty rule was designed to make sure your always got the best advice possible.  So let’s take a look at exactly what the rules being targeted do and how Trump’s new memorandum will affect them.

What Are the Changes Being Targeted?

RetirementEarly last year, the Obama administration announced through the Department of Labor that they were changing the rules when it came to the duties a retirement investor owes their clients.  As it was, retirement advisors generally owed their clients “suitable advice.”  The new rule applied a higher level of obligation, known as a fiduciary duty, between client and retirement investor.

fiduciary duty is a legal duty to put the interests of a person or party above all else; violating this duty leads to legal repercussions. Somebody who has a fiduciary duty is called a fiduciary. In 1974, the Employee Retirement Income Security Act (ERISA) was passed to help create standards and practices for retirement and health plans. The original act applied a broad rule, assigning fiduciary duty to those rendering investment advice regarding a retirement plan for compensation. However, one year after ERISA was passed, the act was amended so that the application of fiduciary duty to retirement advisors was substantially limited.  Thus, the usual standard applied to retirement investors has been, as mentioned above, “suitable advice.”  Suitable advice requires an advisor to provide investing suggestions which the adviser believes are, as the name of the advice suggests, suitable to the client’s interest.  This is as opposed to providing advice that puts the interests of their client above all else–as per a fiduciary duty.

So just how much damage can entrusting your retirement to an advisor who is held to less than a fiduciary standard do? While there are certainly advisors who will provide non-conflicting advice regardless of the standard they are held to, the damage caused by conflicted advisors is substantial.  Leading up to the rule change, the Obama administration issued a study estimating that conflicts of interest cost retirement plans about $17 billion a year. The Department of Labor estimated that conflicted investment advice “could cost IRA investors between $95 billion and $189 billion over the next 10 years and between $202 billion and $404 billion over the next 20 years.”

The way the lack of fiduciary duty might be costing you money is where an retirement advisor suggests investment opportunities that provide them better commissions instead of providing you better returns. It is very common for companies to offer percentage commissions or rewards to advisors on certain investments or types of investments.  For example, the company Table Bay offered “a Maserati to advisers who sell at least $7.5 million in annuities in 2014 and a BMW, Range Rover, or Porsche to those with at least $6 million in sales.” These sort of deals can lead a retirement advisor to recommend investments with the best commissions as opposed to investments that are best for your retirement portfolio—leading to the costs described above.

Looking at these facts, this rule change certainly seems like it’s pretty beneficial to the public.  However, it has had its critics since it was first announced.  Those opposed to the rule have said that the changes may push some advisors out of the market by decreasing their profits.  They have also argued that it will lead retirement investors to offer services to lower income individuals.  While there hasn’t much evidence to indicate investors would abandon such a substantial market, it seems President Trump has been listening intently to the fiduciary duty rule’s detractors as he took the time to focus an entire memorandum on gutting the rule.

What Exactly Does the Presidential Memorandum Do?

A Presidential Memorandum has less formalities than an executive order, but carries similar force.  This means that, because the fiduciary duty rule was an agency policy change by the Obama administration as opposed to a Congressional Act, the rule is the sort of thing Trump can target directly through executive orders.

As it is, his memorandum is slightly more measured in its approach.  The memorandum states that the fiduciary duty rule is not consistent with the policies of Trump’s administration.  With this in mind, the memorandum requires the Secretary of Labor to review the rule in order to ensure that three tenants apparently crucial to any regulation under Trump’s watch.  First, the Secretary needs to determine is the rule, or any element of it, is likely to harm investors due to a reduction of access to advice–essentially ask advisors whether they will offer less services if they have to provide advice exclusively in the best interests of their client.  Second, whether the rule, or any of its parts, has caused disruption in the retirement investment industry sufficiently to have a negative effect on investors or retirees.  Third, the Secretary must determine whether the rule will cause an increase in litigation–an almost certain byproduct of holding investors to a higher standard of duty–as well as an accompanying increase in price for those seeking retirement services.  If, after a review of the legal and economic impact of the rule, it is determined that any of the three points in the memorandum are at issue then the Secretary of Labor must get rid of–or at least revise–the fiduciary duty rule.

Is This the End of the Fiduciary Duty Rule?

Given how broad the three elements in the memorandum are, it’s a pretty good bet that the fiduciary duty rule will be done for in the next few months.  At a minimum, we can expect a substantial delay before the rule takes effect.  Unfortunately, this change is part of a trend of demanding deregulation even where it doesn’t necessarily make sense.  What could have been a substantial step in consumer protection seems like it will, unfortunately, never materialize.