Week in Review

IN THE NEWS

• A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit upheld the Federal Communications Commission’s (FCC) Open Internet Order, which reclassified broadband internet as a utility and created rules to prevent throttling of connection speeds and paid prioritization of traffic—the decision was hailed as “a victory for consumers and innovators” by FCC Chairman Tom Wheeler and, according to University of Pennsylvania law professor Christopher Yoo, who filed an amicus brief opposing the Order, is unlikely to go to the U.S. Supreme Court.

• In a move aimed at shifting power over regulatory agencies to Congress, House Speaker Paul Ryan (R-Wis.) unveiled a major plan to overhaul regulation that he said would force the federal government to “change the very way it writes the rules” by increasing transparency and accountability—part of Speaker Ryan’s larger “A Better Way” agenda that seeks to apply conservative principles to solving America’s challenges, the 57-page report would roll back regulation in a number of areas, including by reforming the Dodd-Frank Wall Street Reform and Consumer Protection Act and the Clean Power Plan as well as requiring Congressional approval of all major regulations through the proposed Regulations from the Executive in Need of Scrutiny (REINS) Act.

• In the wake of the deadly attack in Orlando, Florida this past weekend and following a 15-hour filibuster on the Senate floor by Senator Chris Murphy (D-Conn.), Senator Mitch McConnell (R-Ky.) announced that the Senate will consider amendments to an appropriations bill that are designed to limit terrorists’ access to guns—a proposal from Senator John Cornyn (R-Texas) would provide a 72-hour window to allow courts to block the sale of a gun, while a proposal from Senator Dianne Feinstein (D-Calif.) would allow blocking gun sales if there is “reasonable belief” that a person will participate or has participated in terrorism, and Senator Pat Toomey (R-Pa.) also announced a third proposal aimed at reaching a compromise, stating that neither of the latter bills got the “balance quite right” between protecting the right to bear arms and denying terrorists’ access to guns.

• The U.S. Supreme Court voted 5-2 against Puerto Rico, holding that because it is not a state, Puerto Rico cannot restructure the debts of public utilities to help avoid defaulting on its more than $72 billion in debt—in the wake of the ruling, many have reportedly called for Congress to hasten the passage of its debt-relief bill, which has already been passed by the House.

• The U.S. Supreme Court declined to hear a challenge from 20 states to the Environmental Protection Agency’s (EPA) rule to limit mercury emissions from coal-fired power plants, leaving in place a ruling from the U.S. Court of Appeals for the D.C Circuit that allowed the rule to remain in effect while the EPA revised the way it considered costs in crafting the regulation—a process required by the Supreme Court’s ruling last year in Michigan v. EPA, and which the EPA completed in April.

• The U.S. Department of Labor (DOL) finalized a rule that will prevent federal contractors from discriminating based on sex, including protections against pay discrimination, sexual harassment, and discrimination based on pregnancy or gender identity—the announcement comes at the beginning of the White House Council for Women and Girls’ United State of Women Summit, and the rule, according to DOL Federal Contract Compliance Programs Director Patricia Shiu, is intended to “[open] career opportunities for women that were, for decades, the province of men.”

• In response to the abrupt collapse and closure of the for-profit Corinthian Colleges in 2015, the U.S. Department of Education (DoED) proposed a new rule that would revise existing regulations to allow groups of students, as well as individuals, to have their student loans forgiven if they are defrauded by an institution and to ban the use of mandatory arbitration clauses  in enrollment agreements—changes that were criticized by the for-profit college industry as “complex and burdensome,” but that were welcomed by consumer groups, who say the new rules will provide more relief to students who have been defrauded by for-profit colleges.

• Making Philadelphia the second U.S city to approve a tax on soda, the Philadelphia City Council voted 13-4 to approve a 1.5 cent-per-ounce tax on sugar-sweetened and diet beverages that is expected to raise $91 million, most of which will fund early childhood education— despite widespread support among health groups, the measure is reportedly opposed by the soda industry and the American Beverage Association, which reportedly plans to challenge the law in court.

• The U.S. Supreme Court unanimously ruled against the U.S. Department of Veterans Affairs (VA) in Kingdomware Technologies Inc. v. United States, a case about whether the VA was required to comply with a provision of U.S. code known as the “Rule of Two” that requires contracting officers to award contracts to veteran-owned small businesses under certain conditions—in the Court’s opinion, Justice Clarence Thomas wrote that Congress’ use of the words “shall award contracts” conveyed a “mandatory duty” and that the Rule of Two must always be applied, rather than only when needed to help the VA meet veteran contracting goals established pursuant to the Veterans Benefits, Health Care and Information Technology Act of 2006.

WHAT WE’RE READING THIS WEEK

• The Tax Foundation released a new study that assessed the complexity of the U.S. tax code and the cost associated with compliance—noting that the federal tax code has “expanded dramatically” over the last century, along with accompanying regulations and over 60,000 pages of tax case law needed to interpret them, the Foundation used data from the Office of Information and Regulatory Affairs (OIRA) and the Bureau of Labor Statistics (BLS) and found that in 2016 compliance with the tax code will consume more than 8.9 billion hours of Americans’ time and cost the economy $409 billion.

• Writing for the Brookings Institution, Lisa V. Wood of the Institute for Electric Innovation argued that, contrary to what Mark Muro and Devashree Saha said in a recent paper, net energy metering (NEM), which provides a credit to consumers who use solar panels for the excess energy they produce, requires significant policy reforms—Wood contended that NEM consumers end up paying far less than their share of the cost of running the electrical grid, resulting in what is essentially a subsidy for NEM consumers financed by non-NEM consumers, and is not a net benefit as Muro and Saha proposed.

• In an op-ed published in the New York Times, Adam Winkler, a professor at the U.C.L.A. School of Law, discussed how Congress could craft a “no buy” list, which would bar suspected terrorists from purchasing firearms, without violating due process of law. Writing that “our right to bear arms is no more fundamental than our right to privacy, and treating them similarly can help keep us safer from terrorists” and drawing an analogy to Fourth Amendment search and seizure law, Winkler suggested that Congress require a court determination of “probable cause” before a suspected terrorist is added to the no-buy list.