President-elect Donald Trump holds Vice-President-elect Mike Pence’s hand as he gives his acceptance speech during his election night rally, Wednesday, Nov. 9, 2016, in New York. ((AP Photo/John Locher))
As Donald Trump’s upset victory over Hillary Clinton emerged Tuesday night, stock futures fell sharply. But, in some respect, Trump’s victory could be a gift to banks that loathed a continuation of the Obama administration’s regulatory and enforcement policies. In a speech in August, Trump said he would call for a moratorium on new financial regulations.
On the campaign trail, Trump often called for “dismantling” the Dodd-Frank financial reform law that created the Consumer Financial Protection Bureau, an agency that rankled Republicans ever since it arose from the ashes of the financial crisis. Republican leaders in the U.S. House are pushing legislation that would replace the CFPB.
Trump is set to take control of the White House as Republicans keep majorities in the U.S. Senate and House, giving his administration a powerful position to pursue domestic and international goals. And to make U.S. Supreme Court picks.
Trump opposed the Trans-Pacific Partnership trade pact and has said he would renegotiate other existing trade agreements. “America will no longer settle for anything less than the best,” Trump said in his victory speech in New York.
Law firm leaders in the U.K. said Wednesday they’ll closely track Trump’s business and regulatory positions, including international trade policy.
“As a firm that is very focused on international cross border transactions—we will keep a close eye on how the US continues to engage in its international trade relations,” Nick Buckworth, London managing partner of Shearman & Sterling, said. “Donald Trump has expressed certain views on international trade so we’ll see how things will adjust.”
Mike Goetz, London managing partner of Ropes & Gray, said it was “too early to formulate what it all means—It doesn’t make sense right now.”
To the extent the Trump administration is friendly to business, Goetz said, “people aren’t going to be too concerned. It’s like Brexit—it will take some time for people to absorb it and understand what the implications are.”
The outcome—where the vote defied predictions of a Clinton win—will produce some uncertainty, said Nicholas Cheffings, global chairman of Hogan Lovells.
“The combination of this result and Brexit means we expect to be busy advising clients around the world on the likely policy implications and changes in the regulatory environment,” Cheffings said. “Our transatlantic capabilities and our strong regulatory practice in D.C. mean we are uniquely well placed to do that. As with Brexit, we have been anticipating this possible outcome and last week we launched an online U.S. election hub for clients.”
Trump transition to set policy agenda
The spotlight in the coming months will turn to Trump’s transition team, headed by New Jersey Gov. Chris Christie, with support from Senator Jeff Sessions, R-Alabama. Republican veterans Rudy Giuliani, former Mayor of New York City, and former Speaker of the House Newt Gingrich, are under consideration for U.S. attorney general and secretary of state, respectively, according to NBC News. We recently highlighted the universe of lawyers in Trump’s orbit.
Trump’s platform has proven mutable. But his calls to roll back or repeal Dodd-Frank have remained consistent. Foreshadowing a platform that would call for the near-destruction of Dodd-Frank, Trump told Reuters in May that the law “is a very negative force, which has developed a very bad name.” Trump said then that Dodd-Frank “has made it impossible for bankers to function.”
Indeed, the GOP platform approved at the Cleveland convention called for the repeal of Dodd-Frank and the elimination of the CFPB. For Richard Cordray, the agency’s director, that plank of the party platform could spell trouble. An appeals court panel’s decision last month said the president has the power to remove the CFPB director at will, rather than only “for cause.” The agency is expected to challenge the decision.
The tea leaves for Trump’s enforcement approach are unclear. He has pushed back against the notion of breaking up banks. In his steadfast criticism of settlements, Trump called J.P. Morgan CEO James Dimon the “worst banker in the United States” for reaching a $13 billion settlement with the Justice Department in 2013. But he has also blamed the financial sector for creating “tremendous problems” and said he would “tax Wall Street.”
Trump will also face what veteran antitrust lawyer Bill Baer of the Justice Department recently called a “merger wave” of corporate tie-ups. The Obama administration’s Justice Department and Federal Trade Commission ramped up antitrust enforcement in recent years, taking an aggressive approach to thwart blockbuster deals. The Justice Department is challenging a pair of proposed deals in the health care insurance industry that critics contend would restrict competition.
Republicans are generally seen as gentler than Democrats in antitrust enforcement. But Trump has signaled he would take a tough stand against major mergers and acquisitions. He pledged recently to fight AT&T Inc.’s proposed acquisition of Time Warner Inc., which he said would put “too much concentration of power in the hands of too few.”
Trump could also push for policy changes in the health care arena, and on the labor and employment front.
He has advocated the repeal of the Affordable Care Act, a move that could—if it were successful—jar the employer community and health care and insurance industries. He has kept relatively quiet on other labor issues, but he has advocated possible increases in the minimum wage to be determined on a state-by-state instead of federal basis as well as limited steps forward in the area of paid maternity leave.
Trump and the Supreme Court
The future of the Supreme Court was in the balance Tuesday. President Barack Obama’s pick—Merrick Garland, chief judge on the U.S. Court of Appeals for the D.C. Circuit—faces a hopeless battle for confirmation.
Trump, who will have a chance now to fill the vacancy created by the death of Antonin Scalia, has floated two short lists for the U.S. Supreme Court. He has bypassed naming any lawyers from Big Law. He promised to appoint justices in the mold of Scalia who “will protect our liberty with the highest regard for the Constitution.”
Trump’s most recent list, announced in September, included largely state and federal judges, including Timothy Tymkovich, chief judge of the U.S. Court of Appeals for the Tenth Circuit, and Robert Young Jr., chief justice of the Michigan Supreme Court. The only non-judge on the list was Sen. Mike Lee, R-Utah, who was once a law clerk to Supreme Court Justice Samuel Alito Jr.
At the final presidential debate, Trump predicted that Roe v. Wade would “automatically” fall if he successfully appoints two or three new justices.
Trump’s election could pose an ethical dilemma for Justice Ruth Bader Ginsburg, who in July questioned the Republican nominee’s candidacy. “I can’t imagine what the country would be” with Trump in the White House, Ginsburg said. She later called her remarks “ill-advised.”
Election 2016: Our state coverage
Numerous state battles played out in the polls on Tuesday.
The outcome of initiatives in four states would affect local courts—including changes to the judicial retirement age in Pennsylvania and the abolition of the Judicial Qualifications Commission in Georgia. California Attorney General Kamala Harris was elected to the U.S. Senate, opening a vacancy in a key enforcement position.
The marijuana movement faced its biggest moment yet as California residents and voters in four other states took up measures on Tuesday to legalize pot. California voters approved Proposition 64, which legalizes recreational marijuana. Florida voters adopted an expansion to the state’s medical marijuana program.
The increasing push for marijuana presents significant regulatory hurdles—and a potential revenue boon for law firms. “It seems like it’s the tech boom or the gold rush,” one California lawyer told Law.com recently. “You hear people referring to it as the green rush, and it really has that feel.”
Update: This article was updated with comment from law firm leaders about Donald Trump’s victory. Ben Wheway of ALM affiliate publication Legal Week contributed reporting.