Week in Review

IN THE NEWS

• In a closely watched 5-3 decision, the U.S. Supreme Court struck down a Texas law that required abortion providers to have admitting privileges at nearby hospitals and required abortion clinics to meet standards for ambulatory surgical centers, finding both provisions unconstitutional because they placed an “undue burden” on the ability of women to obtain an abortion. Though Texas Governor Greg Abbot said the decision interferes with the ability of Texas and other states to protect women’s health, the decision was applauded by the American College of Obstetricians and Gynecologists, which said that the Texas law had “served only as a barrier to women’s ability to access safe, legal abortion when needed.”

• The U.S. Supreme Court voted 6-2 to rule that domestic assault can be grounds for restricting gun ownership. The Court held that domestic assault can qualify as a misdemeanor crime, a conviction for which, under federal law, results in a ban on gun ownership—the decision has received praise from supporters of increased gun control, with Elizabeth Avore of Everytown for Gun Safety highlighting that “[a]ccess to a gun is what often turns domestic abuse into murder.”

• As part of the North American Leaders’ Summit this week, President Obama, Canadian Prime Minister Justin Trudeau, and President Enrique Pena Nieto of Mexico announced a pledge to generate 50% of North America’s electrical power from renewable sources by 2025, a goal that will be achieved through a range of initiatives, including collaborating on cross-border transmission projects for renewable energy and strengthening energy efficiency standards in all three countries.

• Secretary of Defense Ash Carter announced the lifting of the Department of Defense’s (DOD) ban on transgender troops in the military. Under the new policy, a troop’s transition will be viewed as beginning at the time a doctor diagnoses that medical care is necessary, and at that time they will be allowed to follow the standards and use the facilities of the gender they identify with—the policy has already proven to be quite contentious, with Rep. Mac Thornberry (R-Texas) calling it “the latest example of the Pentagon and the president prioritizing politics over policy.”

• The U.S. Supreme Court denied a request from the Center for Individual Rights (CIR) to rehear Friedrichs v. California Teachers Association, on which the Court deadlocked 4-4 earlier this year and thereby upheld a California law that requires public school teachers to contribute money to unions—the CIR argued that the Court should take up the case again because a tie, given the “fundamental issues” implicated by the case, was just “not good enough” and because, in its view, the decision means that many public sector workers “are having their First Amendment rights violated every day” —but the court rejected the request without elaboration.

• The Senate passed and President Obama signed into law debt relief legislation for Puerto Rico—the measure, which provides Puerto Rico a stay from litigation that could result in a judge ordering bondholders to be paid, comes just ahead of the territory defaulting on $2 billion in debt, and is a major bipartisan victory for President Obama and House Speaker Paul Ryan (R-Wis.), both of whom championed the legislation.

• In a unanimous decision that raised the bar for prosecutors in public corruption cases, the U.S. Supreme Court reversed the criminal conviction of former Virginia Governor Bob McDonnell in a case that turned on whether the former governor had committed or agreed to commit an “official act” in exchange for gifts—rejecting the prosecution’s “boundless interpretation of the federal bribery statute,” the Court held that the District Court’s instruction on what constitutes an “official act” was too broad and that simply “[s]etting up a meeting, talking to another official, or organizing an event—without more—does not” qualify as an official act.

• A judge for the U.S. District Court for the Northern District of Texas granted a preliminary injunction requested by business groups suing the Obama Administration over the Department of Labor’s (DOL) persuader rule—the order will bar the DOL from requiring employees to report actions taken to influence their decision-making regarding collective bargaining. The decision was praised by Texas Attorney General Ken Paxton as a move in support of the “sanctity of attorney-client confidentiality.”

• The U.S. Court of Appeals for the District of Columbia dealt a blow to environmental groups, rejecting two challenges from the Sierra Club to the Federal Energy Regulatory Commission’s (FERC) approval for construction of liquefied natural gas (LNG) export facilities in Louisiana and Texas—the Sierra Club had argued that the FERC’s analysis of the projects’ environmental impact had violated the National Environmental Policy Act of 1969 (NEPA) by failing to consider the effects of the export of LNG, but the Court held that analysis of the actual export operations, for which the Department of Energy (DOE) is responsible, were simply “outside the Commission’s NEPA wheelhouse.”

• In one of the largest consumer class action payouts in American history, Volkswagen agreed to pay up to $14.7 billion in two related settlements—one with the United States and California, and one with the Federal Trade Commission (FTC)—arising out of allegations made by the U.S. Environmental Protection Agency (EPA) that Volkswagen cheated on diesel emissions tests and allegations by the FTC that the company violated the Federal Trade Commission Act  (FTC Act) by deceptively advertising “clean diesel” vehicles. The proposed settlement, which has been sent to a judge in the U.S. District Court for the Northern District of California for approval, will also be subject to a 30-day public comment period.

WHAT WE’RE READING THIS WEEK

• In a new report, Wayne Crews, Vice President for Policy at the Competitive Enterprise Institute (CEI) decries the “modern regulatory Leviathan” and argues that the burdens of regulation have increased “while benefits grow more ambiguous”—Crews advocates for a regulatory budget that he argues would increase transparency and Congressional accountability, but he also identifies and assesses several risks posed by the creation of a regulatory budget, including that such a scheme could result in significant government expansion, discount protection of individual rights through cost balancing, and be difficult to formulate due to challenges in predicting costs.

• In a forthcoming article for the New York University Law Review, Professors Elizabeth Porter and Kathryn Watts, both of the University of Washington School of Law, discuss what they call the growing culture of “visual rulemaking”—the use of “political tinged visuals” by rulemaking stakeholders to push regulatory agendas. Arguing that “visual rulemaking is a good thing” because it furthers transparency and political accountability and may facilitate participation in the regulatory process by a more diverse audience. The authors also acknowledge that visual rulemaking has risks, and could violate administrative law doctrines if used improperly.

• Writing for the Brookings Institution, Blair Levin discussed what he believes to be the appropriate next steps for building upon the Federal Communications Commission’s (FCC) recently upheld Open Internet Order. Levin argued that a fundamentally defensive move, preventing discrimination, is at the core of the Order, and that expanding upon the Order will require what he viewed as more offensive measures, such as implementing next generation networks, along with the heavy involvement of municipal governments.