Week in Review

IN THE NEWS

• A coalition of 23 states, counties and municipalities sued the U.S. Department of Health and Human Services (HHS) over a new rule that seeks to strengthen health care providers’ ability to refuse to perform abortions or other procedures under federal conscience laws. Roger Severino, Director of the Office for Civil Rights at HHS, said that the rule “ensures that healthcare entities and professionals won’t be bullied out of the healthcare field because they decline to participate in actions that violate their conscience.” New York Attorney General Letitia James, who is leading the lawsuit, called the rule “a gross misinterpretation of religious freedom that will have devastating consequences on communities throughout the country.”
• Citing Congress’s “broad investigative authority” to inquire into possible legal and ethical violations, the U.S. District Court for the District of Columbia upheld a subpoena issued by the House Oversight and Reform Committee ordering accounting firm Mazars to disclose certain financial records of President Donald J. Trump. Two days later, the U.S. District Court for the Southern District of New York reportedly upheld another congressional subpoena seeking similar documents from Deutsche Bank and Capital One. President Trump’s lawyers have appealed the first decision and are reportedly likely to appeal the second.
• The Chairman and two Commissioners of the Federal Communications Commission (FCC) indicated that they are likely to provide the three votes needed to approve the proposed merger between T-Mobile and Sprint. FCC Chairman Ajit Pai stated that the merger was “in the public interest” and highlighted the companies’ commitment to deploy a 5G network for 97 percent of the country’s population within three years and to expand access across rural areas. House Antitrust, Commercial and Administrative Law Committee Chair David Cicilline (D-R.I.) called the decision “deeply concerning” and said that “actual competition in the wireless market is critical to building out the next generation of internet and wireless services.” The Antitrust Division of the U.S. Department of Justice has not yet announced whether it will challenge the merger, although the staff reportedly recommended blocking the deal.
• The U.S. Court of Appeals for the D.C. Circuit ruled that Federal Election Campaign Act limitations on how the Libertarian National Committee (LNC) receives its political contribution are constitutional. Judge David Tatel, who wrote the court’s opinion, noted that the LNC conflated receiving donations with spending those donations. The court held that receiving donations “facilitates speech,” but spending was speech and protected by the First Amendment.
• A unanimous U.S. Supreme Court ruled that judges rather than juries should determine whether or not pharmaceutical product liability claims may proceed under the “clear evidence” standard established in Wyeth v. Levine. Under the standard, if there is clear evidence that the U.S. Food and Drug Administration (FDA) would have declined to add a warning to the allegedly harmful drug’s label, failure-to-warn lawsuits under state law are barred due to a conflict with federal labeling regulations. Justice Stephen Breyer’s opinion for the Court reversed the decision of the U.S. Court of Appeals for the Third Circuit, which held that a jury should determine if FDA would have added a warning to the labels of Merck osteoporosis drug Fosamax.
• In a memo released to the public this week, U.S. Environmental Protection Agency (EPA) Administrator Andrew Wheeler directed agency leaders to create new rules that address the use of benefit-cost analysis in the notice and comment rulemaking process. The rules are intended to support President Trump’s executive order requiring agencies to identify regulations where costs exceed benefits as part of a broader deregulatory plan. National Association of Manufacturers President and CEO Jay Timmons said the initiative would ensure that “EPA will get regulations done right the first time, delivering clarity and transparency for manufacturers.”
• The U.S. House of Representatives passed a bill denouncing female genital mutilation. The bill declared female genital mutilation to be a human rights violation and requested that the U.S. Department of State and the U.S. Agency for International Development adopt coordinated efforts to eliminate the practice worldwide. Representative Lois Frankel (D-Fla.), a co-sponsor of the bill, announced after the vote, “Today we’re sending a clear message that every girl, no matter where she’s born, has a right to live free of violence.”
• HUD Secretary Ben Carson appeared before the House Financial Services Committee to answer questions about three new public housing bills, including H.R. 2763. The bill would prevent HUD from implementing a proposed rule requiring the verification of immigration status of all housing benefit recipients under the age of 62. Currently, HUD provides benefits to families that include undocumented immigrants if at least one family member is a legal resident. Secretary Carson said the proposed rule was simply HUD “following the law” and emphasized that undocumented immigrants should not displace the hundreds of thousands of citizens on the waitlist for public housing. Committee Chair Maxine Waters (D-Calif.) criticized the proposed rule, saying that it would put “mixed-status families at risk of being evicted, separated, and left homeless.”
• The U.S. House of Representatives passed a bill amending the Intercountry Adoption Information Act of 2000. The amendment would require the U.S. Secretary of State to identify and report countries whose laws prohibit adoption involving immigration to the United States. The amendment prohibits the U.S. Department of State from releasing any personal information but requires that the State Department demonstrate that it took steps to assist the foreign country to reopen adoption proceedings.

WHAT WE’RE READING THIS WEEK

• In a recent paper, Stefano Gagliarducci of the University of Rome Tor Vergata, Daniele Paserman of Boston University, and Eleanora Patacchini of Cornell University found that members of Congress from districts hit by hurricanes are more likely to support environmental regulation the year after a disaster. Gagliarducci and his coauthors found two characteristics that were associated with a permanent change in congress members’ beliefs. They found that change was more likely when a congress member already had strong electoral support or was predisposed to promote policies with short-term costs and long-term benefits.
• In a new working paper, Cass Sunstein of Harvard Law School argued that “procedural sludge”—excessive or unjustified administrative burdens—imposes significant costs on consumers and society. To combat the problem, Sunstein suggested that agencies and private institutions periodically review existing burdens to ensure that the benefits of any new sludge outweigh the costs.
• In a recent article, Caroline Chen of ProPublica explored what she called the “largely unregulated” amniotic stem cell industry. Chen noted that FDA has been inconsistent in its enforcement of certain rules, which require manufacturers of stem cell therapies to apply to FDA for approval of the therapies as drugs. She claimed that the lack of FDA control of these treatments has already harmed desperate patients, who have suffered from serious infections due to contaminated samples and have spent large sums seeking relief from stem cell therapies, the efficacy of which has not been verified through adequate clinical trials.