Amidst all he has failed to achieve during his first four months as president (basically, anything and everything he’s tried to get done from a policy standpoint), it seemed President Trump would be able to do at least one thing: Kill his hated predecessor’s hated fiduciary rule, requiring those offering retirement-savings advice to act in the best interests of their clients, rather than themselves. After all, one of the president’s closest advisers said it was the dumbest thing the U.S. government had done in a half-century—a half-century that included Obamacare and NAFTA—and worse than the Supreme Court saying black people couldn’t be citizens. The president’s top economic guru said it was the equivalent of banning junk food and therefore that people should be allowed to throw away their money in any way their financial adviser sees fit. The SEC was all set to provide cover by promulgating its own fiduciary “rule.” And even before there was a Labor Secretary, the Labor Department put the brakes on its own rule to allow it to be ceremonially slaughtered by the new Labor Secretary following his Senate confirmation. Things were running so smoothly, it was almost as if an organization other than the Trump administration had planned and executed the whole thing.
Alas, Team Trump couldn’t even do this right. And so that new Labor Secretary, Alex Acosta, mournfully announces that the rule will go into effect, after all, because as with so many of the president’s other promises, this one was not achievable.
Before an agency can regulate or deregulate, it must generally provide notice and seek public comment. The process ensures that all Americans—workers, small businesses, corporations, communities—have an opportunity to express their concerns before a rule is written or changed. Agency heads have a legal duty to consider all the views expressed before adopting a final rule….
We have carefully considered the record in this case, and the requirements of the Administrative Procedure Act, and have found no principled legal basis to change the June 9 date while we seek public input. Respect for the rule of law leads us to the conclusion that this date cannot be postponed.
SAD! And sadder still, because once the rule comes into effect, killing it might no longer actually kill it. After all, inertia is a powerful force, firms have been getting ready for the thing for more than a year and now will actually have to put those preparations into place. And once such policies are in place, it takes a long time and a lot of money to change them, which means that even if the Trump administration ever actually gets around to sifting through those comments and coming up with a new rule to replace the old one—no sure thing given the millisecond attention span of the current White House—Obama’s gift to plaintiff’s lawyers may be around long after President Trump had solved the Israeli-Palestinian problem.