Recap | Mar 24, 2017

Week in Review

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House delays vote on Obamacare replacement, Senate votes to repeal FCC privacy rules, and more…

IN THE NEWS

  • The U.S. Senate voted 50-48 to pass a Congressional Review Act resolution repealing an Obama administration rule issued by the Federal Communications Commission (FCC) which required broadband providers to to get permission from individuals before collecting and giving out their personal information—a vote which reportedly alarmed consumer advocates, who viewed the rule as important to protecting individual privacy, but which was supported by the telecommunications industry. The resolution will next go to the U.S. House of Representatives for a vote.
  • Secretary of State Rex Tillerson reportedly sent several cables to American embassies between March 10 and March 17, directing embassy employees to “develop a list of criteria identifying sets of post applicant populations warranting increased scrutiny” and to perform a higher-level security screening for visa applicants from those population groups—a move which is intended to increase scrutiny of visa applicants and address national security concerns, but which immigration lawyers say could lead to visa applicants being profiled on the basis of nationality or religion.
  • Judge Neil Gorsuch, President Trump’s nominee for the U.S. Supreme Court, completed four days of confirmation hearings before the Senate Judiciary Committee, fielding questions from Senators on Chevron deference as well as a number of hot-button issues—including abortion, education, and torture. Republicans, including Sens. Ted Cruz (R-Texas) and Orrin Hatch (R-Utah) reportedly hailed Judge Gorsuch’s performance, several Democrats reportedly criticized him for giving evasive, noncommittal response, and Judge Gorsuch, for his part, reportedly argued that it would be inappropriate to indicate how he would rule if confirmed, explaining that doing so would be “like a campaign promise for office.”
  • Senator Chuck Schumer, the Senate minority leader, announced on the Senate floor that he will oppose the nomination of Judge Neil Gorsuch to the U.S. Supreme Court, and will lead the Senate Democrats in an attempt to filibuster the nomination—a move that would require 60 votes in order to pass Gorsuch’s nomination, and which could result in the Senate Republicans voting to change the Senate rules and eliminate the use of the filibuster for Supreme court nominations.
  • The U.S. Supreme Court ruled 6-2 that former general counsel of the National Labor Relations Board (NLRB) Lafe Solomon’s appointment violated the Federal Vacancies Reform Act. The Court rejected the Obama Administration’s argument that Solomon qualified as a “first assistant” under the law, and was therefore allowed to serve on a temporary basis while going through the confirmation process, adding that the Obama Administration did not have to leave the position vacant until Solomon was confirmed, but instead “could have appointed another person to serve as the acting officer in Solomon’s place.”
  • The U.S. Department of Energy delayed the implementation of five of the Obama Administration’s energy efficiency rules, including rules that set testing procedures for air conditioners and walk-in coolers and freezers, and a set of energy conservation standards for the construction of federal residential buildings. The Energy Department reportedly said the delay was due to a need for more time to review the rules, pointing to the fact that Secretary of Energy Rick Perry did not begin work until the beginning of March.
  • The U.S. Senate held a confirmation hearing for Alexander Acosta, President Trump’s second nominee for Secretary of the U.S. Department of Labor. Acosta, who was nominated by President Trump after his first choice, Andrew Puzder, withdrew his name, reportedly suggested support for raising overtime pay, but questioned whether the Labor Department has the power to raise overtime pay by more than the rate of inflation.
  • In a case interpreting the Individuals with Disabilities Education Act (IDEA)—which requires that states, as a condition of receiving federal funds, provide students with disabilities a “free appropriate public education” that is tailored to the individual student’s needs through an Individualized Education Program (IEP)—the U.S. Supreme Court unanimously held that public schools must provide students with disabilities with an educational plan that is “appropriately ambitious in light of [the] circumstances.” The case centered on a student with autism, who made progress in private school after his parents became dissatisfied with the IEPs provided by his public school, and the decision received added attention because it was issued during the confirmation hearings of Judge Neil Gorsuch, who has reportedly ruled the opposite way in similar cases.
  • The U.S. Court of Appeals for the Seventh Circuit dismissed a lawsuit by two public sector, non-union employees who challenged an Illinois law “under which a union representing public employees collects dues from” both its members and “non-member employees on whose behalf the union also negotiates.” The Seventh Circuit acknowledged that it was bound by the U.S. Supreme Court’s 1977 Abood v. Detroit Board of Education decision, which upheld a similar Michigan law against a First Amendment challenge, and the decision clears the way for an appeal to the U.S. Supreme Court.

 

WHAT WE’RE READING THIS WEEK

  • In a recent op-ed for The New York Times, Columbia Law School Professor Philip Hamburger explains that a “major point of contention” surrounding Judge Neil Gorsuch’s confirmation is the degree of deference granted by courts to agencies—generally referred to as “Chevron” deference after the U.S. Supreme Court’s 1984 Chevron U.S.A. v. Natural Resources Defense Council decision. Hamburger explains that some “judges, including Justice Clarence Thomas and Judge Gorsuch,” have worried that Chevron compromises judicial independence. Because Chevron grants a level of deference to the agency at the outset of litigation, Hamburger explains that it “forces judges to engage in systematic bias favoring one party.” He asserts that Judge Gorsuch should be “congratulated,” rather than criticized, for opposing Chevron deference.
  • In a forthcoming article for the Journal of Corporation Law, University of Pennsylvania Wharton School professors Gwendolyn Gordon and David Zaring discuss “what it means to operationalize ethics and culture in a regulatory project” when it comes to financial regulation. The article argues that, for banking, the “idea of regulating through ethics codes has coherence, if not entirely clear promise.”
  • In a recent article in the Duke Chronicle, medical experts at Duke University weigh in on President Trump’s assertion that the U.S. Food and Drug Administration’s (FDA) approval process is “slow and burdensome,” and “keeps too many advances…from reaching those in need.” Among the commentators is Dr. Robert Califf, a professor at the Duke Clinical Research Institute and former FDA commissioner, who pushed back on the President’s suggestion that approval requirements should be loosened, reportedly saying “[s]hortening and expediting [the approval process] is a great idea, but it needs to be done without lowering the standards.”
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