Week in Review: More Executive Orders, More Agency Changes, and a Lawsuit Against the State of Illinois

By Franczek P.C.

February 12, 2025

Last week was another busy week for the White House, with several notable Executive Orders and more agency leadership changes. As we reported in our previous Week in Review, these sweeping changes are expected given the new administration. To help you stay up to speed, we highlight the important actions from February 3-10, 2025, and their potential impacts.

We are also tracking important cases before the Supreme Court this term. For our education clients, we recently published a preview of the Court’s term here. A similar alert related to labor and employment matters will be coming soon.

The Week in Brief:

(1) The NLRB Has a New Acting General Counsel: On February 3, 2025, President Trump appointed William B. Cowen as the Acting General Counsel of the National Labor Relations Board (“NLRB”). Cowen’s appointment comes two days after President Trump removed the NLRB’s second-ranked attorney, NLRB Deputy General Counsel Jessica Rutter.

(2) The EEOC Has a New General Counsel: On February 4, 2025, President Trump named Andrew Rogers as the Acting General Counsel to the U.S. Equal Employment Opportunity Commission. President Trump’s appointment of Mr. Rogers is expected to allow the Trump administration to carry out its goals with respect to the civil rights laws that the agency enforces.

(3) Executive Order on “Expanding Educational Freedom and Opportunities:” On January 29, 2025, President Trump signed an Executive Order titled “Expanding Educational Freedom and Opportunity for Families.” According to the related Fact Sheet released by the White House, the Order seeks to bolster parents’ access to school choice. The Executive Order directs the Secretary of Education to prioritize school choice programs with the Department’s discretionary grants and requires the Department of Health and Human Services to issue guidance on how states receiving block grants for children and families can use those funds to support educational alternatives, including private and faith-based options. The Order also directs the Secretary of Defense to submit a plan to the President for how military families can use Department of Defense funds to send their children to the school of their choice, and directs the Secretary of the Interior to submit a plan to the President for how families with students attending a Bureau of Indian Education school can use federal funds to send their children to a school of their choice.

(4) Executive Order on “Keeping Men Out of Women’s Sports:” On February 5, 2025, President Trump issued an Executive Order titled “Keeping Men Out of Women’s Sports,” which seeks to restrict the participation of transgender women and girls in women’s athletic competitions. The order also seeks to rescind federal funds from institutions that allow transgender women to participate in women’s sports.

(5) President Trump Sues the State of Illinois and Cook County: On February 6, 2025, the United States Department of Justice filed a federal lawsuit against the State of Illinois, Governor J.B. Pritzker, the City of Chicago, Mayor Brandon Johnson, Cook County, and other defendants alleging violations of federal immigration law. In support of these claims, the lawsuit asserts that the City, County, and State’s sanctuary policies prevent officials from enforcing these laws through intentional obstruction of the federal government’s efforts.

Franczek Insights:

1. The NLRB Has a New Acting General Counsel – By Rachel Domash, Franczek P.C.

On Monday, February 3, 2025, President Trump appointed William B. Cowen as the Acting General Counsel of the National Labor Relations Board (“NLRB”). Cowen’s appointment comes two days after President Trump removed the NLRB’s second-ranked attorney, NLRB Deputy General Counsel Jessica Rutter.  Rutter herself briefly served as the NLRB Acting General Counsel following the January 27, 2025, termination of the previous General Counsel, Jennifer Abruzzo, which we reported on in further detail here. Notably, the Senate must still confirm Cowen’s appointment in order for Cowen to officially fill the role. Cowen is expected to be confirmed.

Cowen initially served within the NLRB between 1979 and 1985, holding positions in multiple capacities throughout the agency at both its headquarters and in the field. Cowen then left the NLRB to work in private practice but returned to the NLRB as a Republican Board Member from January to November 2002, under an appointment by President George W. Bush. Following his 2002 appointment, Cowen served as Chief of Staff to NLRB Chairman Robert J. Battista, then as the NLRB’s Solicitor from 2006 to 2016, and most recently as Regional Director of the NLRB’s Los Angeles Regional Office from 2016 to present.

At this time, the president has not submitted any other nominations for the three seats on the NLRB that remain vacant due to the recent removal of Democratic NLRB members, reported further here. Therefore, the NLRB still does not have a quorum to issue any decisions or regulations. We previously reported that Democratic Board member Gwynne Wilcox’s removal would likely be subject to legal challenge. On February 5, 2024, Wilcox did just that when she filed suit against President Trump for exceeding his authority in firing her and asking the court to reinstate her as an NLRB member.

2. The EEOC Has a New General Counsel – By John Swinney, Franczek P.C.

On Tuesday, February 4, 2025, President Trump appointed Andrew Rogers to serve as the acting General Counsel of the EEOC. Trump removed the former EEOC General Counsel, who was appointed by President Biden, on January 27, 2025, as well as two Democratic Commissioners. The Senate must first confirm Rogers’ appointment to the role but, if approved, Rogers would serve in the position for a four-year term.

Rogers previously served as Chief Counsel to the recently appointed Acting EEOC Chair, Andrea Lucas. President Trump’s decision to appoint Rogers, who worked closely with Ms. Lucas, likely signals an attempt to ensure the litigation arm of the EEOC (which the General Counsel leads) is in full alignment with President Trump’s agenda in relation to civil rights – particularly on issues regarding transgender discrimination.

However, as with the NLRB, the two vacancies created by the removal of Democratic Commissioners Jocelyn Samuels and Charlotte Burrows have not yet been filled. This means that, for now, the agency lacks the required quorum to institute changes to its pre-existing regulations. For example, the EEOC cannot rescind prior guidance documents or strategic enforcement plans without a quorum vote. Further, under a previous Commission resolution, the EEOC must obtain a majority vote to initiate certain types of litigation, including pattern and practice cases. This likely means that, until the vacant seats are filled, current EEOC guidance and regulations will remain in effect, and we may see a decrease in litigation initiated by the agency.

We will continue to track and report on developments at the EEOC as they occur.

3. Executive Order on “Expanding Educational Freedom and Opportunities” – By John Anders, Franczek P.C.

On January 29, 2025, President Trump signed an Executive Order titled “Expanding Educational Freedom and Opportunity for Families.” According to the related Fact Sheet released by the White House, the order seeks to bolster parents’ access to school choice. Practically speaking, the order does not change the status quo as much as it signals potential changes to the allocation of federal funding to schools, services, and supports, and encourages federal agencies to explore existing mechanisms to find ways for parents to use federal funds to send their children to schools of their choice, including private and parochial schools.

The Executive Order directs the Secretary of Education to prioritize school choice programs with the Department’s discretionary grants and requires the Department of Health and Human Services to issue guidance on how states receiving block grants for children and families can use those funds to support educational alternatives like private and faith-based options. The order contains similar directions for the Secretaries of Defense and of the Interior to submit plans to the President for how military families and families of students attending Bureau of Indian Education schools can use federal funds to send children to schools of their choice.

The Order only requires federal agencies to issue guidance or submit plans that align with the requirements of the Order within the next 60-90 days. Therefore, no actual action has been taken at this time with respect to reallocating federal funds for school choice programs. The President, however, has framed this Order as a “critical step” in delivering on his promise to “bring school choice to every family in the Nation.”

President Trump’s advocacy for school choice dates back to his first term in office, during which he called on Congress to pass the School Choice Now Act and the Education Freedom Scholarships and Opportunity Act. Neither bill advanced out of committee. As we last reported on the possibility of impending school choice changes with this administration, though, the U.S. House of Representatives did pass a bill out of committee in September 2024 which would guarantee parents the right to choose which school their child attends through the implementation of a tax credit towards tuition and educational materials. A similar bill is in committee in the Senate.

4. Executive Order on “Keeping Men Out of Women’s Sports” – By K. Hope Harriman, Franczek P.C.

On February 5, 2025, President Trump issued an Executive Order titled  “Keeping Men Out of Women’s Sports,” which seeks to restrict the participation of transgender women and girls in women’s athletic competitions. The order also seeks to rescind federal funds from institutions that allow transgender women to participate in women’s sports.

Like the Executive Order President Trump issued regarding Title IX, this order presents a particular conundrum for Illinois employers. While federal policy is shifting, Illinois state law explicitly prohibits discrimination and harassment based on a variety of protected characteristics, including an individual’s gender identity. Federal law and Illinois law as it relates to transgender athletes may be in conflict.

The order directs the Department of Education to “affirmatively protect” all-female athletic opportunities and locker rooms, citing Title IX as its legal authority. It similarly directs the Department to bring enforcement actions against institutions that allow transgender women in women’s sports.

The order also instructs the Assistant to the President for Domestic Policy to convene representatives of major athletic organizations to create rules about transgender women in sports consistent with the President’s view. The order also seeks to promote these views internationally, including at the United Nations.

Like President Trump’s Executive Order on Title IX, this order could have far-reaching consequences for institutions that receive federal funding, particularly in states like Illinois. For states that already prohibit transgender athletes from participating in sports consistent with their gender identity, this order is unlikely to bring immediate changes in funding or regulation.

However, Federal law and Illinois law may be on a collision course with respect to transgender athletes given the Illinois Human Rights Act, which protects transgender, nonbinary, and gender nonconforming individuals from discrimination. Legal challenges to the order are all but certain. However, the courts could take months – if not longer – to determine whether the order is lawful and, if so, how it applies to states like Illinois.

As a result, institutions navigating these conflicting regulations face both legal and financial risks. Franczek attorneys are staying fully up-to-date on this order and its potentially preemptive effect on Illinois law.

5. President Trump Sues the State of Illinois and Cook County – By Brittany H. Begley, Franczek P.C.

On February 6, 2024, the Trump administration, through the United States Department of Justice, filed a federal lawsuit against the State of Illinois, Governor J.B. Pritzker, the City of Chicago, Mayor Brandon Johnson, Cook County, and other defendants alleging violations of federal immigration law. In support of these claims, the lawsuit asserts that the City and State’s sanctuary policies – which prohibit local assistance to federal agencies carrying out immigration enforcement activities – prevent federal officials from enforcing these laws through intentional obstruction of the federal government’s efforts. As background, State and local leaders including Governor Pritzker and Mayor Johnson have voiced their commitment to upholding both Illinois and Chicago’s sanctuary status. Because of these policies, the Department of Justice asserts, Immigration and Customs Enforcement (“ICE”) have been unable to locate, arrest, or deport immigrants who are in custody and subject to federal immigration custody.

Specifically, the lawsuit cites State and local laws, including the Way Forward Act, the TRUST Act, the Welcoming City Act, and a Cook County Ordinance, and maintains that these policies violate the Supremacy Clause of the United States Constitution by impeding the Federal government’s ability to enforce federal law. These state and local laws, the lawsuit claims, prohibit local authorities from cooperating with deportation efforts aimed to address the “national emergency” that “exists at the southern border of the United States,” a reference to President Trump’s declaration on his first day in office. The lawsuit seeks to invalidate the local and State laws through the court’s issuance of an injunction. This essentially means that the Department of Justice requests the court to find the laws to be invalid for their violation of the U.S. Constitution and declare that enforcement of these laws should be blocked.

Chicago’s Welcoming City Ordinance prohibits police from arresting an individual solely based on their immigration status. It largely restricts City officials from asking someone about their immigration status, requiring disclosure of a person’s immigration status to federal authorities, or mandating cooperation with an investigation of someone’s immigration status unless ordered to do so by a court or federal law. Similarly, Illinois’s TRUST Act prohibits cooperation of local authorities with ICE except in cases where a federal criminal arrest warrant has been issued. Both Governor Pritzker and Mayor Johnson have defended the laws, reiterating that Chicago and Illinois will continue to prevent local and state law enforcement from assisting ICE agents in deporting undocumented residents unless the individuals have been convicted of committing a crime. Mayor Johnson is scheduled to testify on behalf of Chicago’s status as a sanctuary city at a congressional hearing in Washington D.C. next month.

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