For the legal community, the current moment resembles the early days of the Covid pandemic in one respect: rules, policies and norms are in a constant state of flux.

“When we were getting executive orders from state governments (during Covid), it was a similar environment, where we were up late at night interpreting orders, figuring out what they mean and what’s the impact to clients, so we could advise them on next steps,” said Paige Spratt, an attorney at Schwabe’s Portland office specializing in real estate and construction.

“It still feels chaotic,” she said. “There are a lot of unknowns. It’s always uncomfortable to say we’re all figuring this out.”

The legal and business communities are attempting to stay on top of the head-spinning barrage of executive orders issuing from the Trump White House on everything from immigration to tariffs and trade to diversity, equity and inclusion initiatives to trade policy. Schwabe launched an executive orders team composed of attorneys at its offices across the country, posting blogs as issues emerge and offering a first 30-days webinar, to be followed by “first 60” and “first 90” to track new developments.

“What people are feeling and hearing is concern about the lack of predictability and not knowing what’s going to happen next,” said Brad Maier, a Schwabe attorney in Portland who focuses on workplace and immigration.

We checked in with Spratt, Maier and their colleague Dan Eller, whose specialties include real estate, technology, consumer products and manufacturing, about how they are helping business clients navigate the uncertainty and fluctuations in three key areas.

Government contracting

Spratt is getting a lot of questions related to the Disadvantaged Business Enterprise program, which Congress enacted in 1983 through the Department of Transportation to assist small business formation and growth. Congress has since reauthorized and amended the DBE program, most recently in 2021.

Only small, independent businesses owned and controlled by socially and economically disadvantaged individuals may participate, which traditionally has meant women- and minority-owned, in an effort to remedy ongoing discrimination.

Large transportation projects generally have goals as to what percentage of the work must go to DBE firms. The Small Business Administration has a similar program to DBE, known as 8A.

What is causing confusion is the Trump administration’s moves to dismantle former President Biden’s DEI orders.

“One of the biggest questions we’ve received is, ‘Are the DEI executive orders impacting the DBE program? Is it going away?’” Spratt said.

The answer is no.

“Executive orders cannot override an act of Congress,” Spratt said. “DBEs are acts of Congress, so while it might impact how those programs are enforced, they can’t be eliminated.”

Private contractors should remember that they have a contractual relationship with the government, she said.

“So until the government changes your contract or gives you a modification, you should continue to comply with the terms,” Pratt said.

Schwabe has put out the word to clients to say something if they see something, to better assess how agencies are enforcing various orders.

Immigration

President Donald Trump signed a flurry of EOs in the first hours after taking office, moving to seal U.S. borders against migrants and to deport undocumented immigrants already in the country.

The status quo “can change significantly, with an absence of a normal process or notice,” Maier said. He offered an example.

“One thing that just happened is immigration forms were just updated, relatively routine forms,” he said. “Immigration didn’t provide advance notice or say when the new effective date was going to be. They published the new form and backdated it to Jan. 20 and didn’t say anything about what forms were in the works. A lot of folks had applications for benefits they had already mailed off, and they didn’t know if they would be denied because it changed while (the applications) were en route.”

One policy change that has caused particular concern is the Jan. 21 recision of an Immigration and Customs Enforcement policy on not entering protected areas, such as places of worship and hospitals.

“That was a wakeup call for folks around the country,” Maier said. “There was a lot of confusion about the policy to begin with and the recision and that just adds to it.”

The old policy on sensitive areas was never official, but self-imposed, Maier noted.

“The fact it was rescinded and they’re saying the gloves are off and there’s not place immigrants can hide, you’ve got a lot of folks trying to figure out what to do if ICE shows up on their doorstep,” Maier said. “They’re really thinking about the impact on their own employees and customers or patients and contemplating the worst-case scenario and planning for it. That’s very new. Folks are being introduced to 4th Amendment rights for the first time, and what you do if a law enforcement officer shows up with a warrant.”

Maier advises clients, including restaurants, to craft policies that address their concerns without violating the law, especially in sanctuary states such as Oregon and Washington.

“They don’t provide affirmative protections, but when you hear sanctuary law, you think it’s a law that provides sanctuary,” Maier said. “All they do is limit what state and local officials can do to cooperate with ICE.”

He’s also advising clients, many Canadian, about Visa categories and guest worker programs.

“Many programs could go away overnight,” he said. “In talking to clients and advising about what we’re going to do, we first have to describe how it would normally work, but we have to qualify it with, ‘The program could cease to exist tomorrow.’ That’s tough advice to have to give, but folks have to imagine the worst and, in some ways, prepare for it, figuring out how a job gets done without this person.”

Finally, he is emphasizing the importance for all employers of making sure they have I9s for all employees.

“A lot of companies got lax about it during Covid,” he said. “I can’t emphasize enough getting back to basics. Those that are lax are more likely to have an ICE raid, because they’re more likely to have people working for them illegally. It’s a short, simple form. A lot of folks underestimate its importance.”

Tariffs

It’s almost impossible to keep up with the jolting twists, turns and about-faces in Trump’s tariff policies over the past 45 days. It’s enough to give anyone whiplash.

“As we see this daily change in stance or amount or the country to which it applies, it was a wait-and-see, and the impatience around that uncertainty started to weigh on people,” Eller said. “Folks started to look at their supply chains, and if they were buying goods that were subject to a tariff, looking at where they could source that differently and continue to do that, but it’s difficult to know what will happen tomorrow.”

What is Eller advising clients in this fast-changing environment?

“In the last couple of weeks, we’re coalescing around similar advice, that is, where you’re in a supply chain contract on goods, look at the contracts and see what they say about how prices are set,” Eller said. “It cuts both ways. There will be winners and losers in these tariff fights.”

He helps clients understand what their rights are with respect to the goods in their supply chain. Just that morning, Trump had announced a 25% tariff on steel imports.

“In steel, we’re not going to say anything until it sorts itself out,” Eller said.

Read the full article in the Portland Business Journal.

This article was republished with permission from the Portland Business Journal.

This article summarizes aspects of the law and does not constitute legal advice. For legal advice for your situation, you should contact an attorney.