Week in Review

IN THE NEWS

• Following a filibuster by Senate Democrats of Judge Neil Gorsuch’s confirmation to the U.S. Supreme Court, the U.S. Senate voted 52-48 to change the Senate’s rules to require only a simple majority for confirmation of Supreme Court nominees, rather than the 60 votes needed to overcome a filibuster. Republican senators unanimously supported the measure to change the Senate’s rules, and Democratic senators unanimously opposed it. A subsequent vote to end debate on Judge Gorsuch’s confirmation then passed the Senate 55-45, with the support of all Republican and three Democratic senators. A final confirmation vote to approve Judge Gorsuch to the Supreme Court is expected on Friday.

• The U.S. Court of Appeals for the Seventh Circuit held 8-3 that “discrimination on the basis of sexual orientation is a form of sex discrimination” under Title VII of the Civil Rights Act of 1964. The ruling comes on the heels of another recent decision by a three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit, which dismissed a similar suit for discrimination, and a decision by the U.S. Court of Appeals for the Second Circuit that allowed a discrimination claim based on “gender stereotyping” but declined to consider whether discrimination on the basis of sexual orientation is prohibited under Title VII. The contrasting appellate decisions set the state for potential resolution by the U.S. Supreme Court.

• Attorney General Jeff Sessions, in a memo to the U.S. Department of Justice (DOJ), instructed the agency to review all DOJ activities, including the existing 14 consent decrees the Obama administration reached with police departments, to ensure that those activities align with a list of goals, including that “the misdeeds of individual bad actors should not impugn or undermine the legitimate and honorable work that law enforcement officers and agencies perform”—a shift in emphasis that was echoed by DOJ’s request for a 90-day delay in a consent decree reached with the Baltimore Police Department.

• The U.S. Supreme Court denied a petition to suspend its consideration of an appeal from the U.S. Court of Appeals for the Sixth Circuit concerning whether that court had jurisdiction to hear challenges to the U.S. Environmental Protection Agency’s (EPA) Waters of the United States rule—an appeal which the Trump administration had requested the Supreme Court hold in abeyance after President Trump issued an executive order directing EPA to review and withdraw the rule, but which several environmental groups and states had requested the Supreme Court continue to hear as planned.

• President Donald Trump signed three Congressional Review Act (CRA) resolutions this week, bringing the total number of Obama administration rules repealed using the CRA to 11. The rules repealed this week were a Federal Communications Commission rule intended to limit broadband service providers’ ability to collect and use personal information online without consumers’ consent, an Occupational Health and Safety Administration rule clarifying employers’ continuing obligation to keep records of illnesses and injuries, and a U.S. Fish and Wildlife Service rule clarifying that certain methods of hunting bears and other predators are not allowed in the Alaska National Wildlife Refuge.

• The U.S. Department of the Interior (DOI) issued a proposed rule to include the yellow lance freshwater mussel on the List of Endangered and Threatened Wildlife, thereby extending protections to the species under the Endangered Species Act of 1973—reportedly the first species protection regulation issued by the Trump Administration. However, the DOI also announced that it will remove two species of parrots from that same list, based on a finding that the threats to those species “have been eliminated or reduced and populations of both species are stable.

• The U.S. Senate held a confirmation hearing for Scott Gottlieb, a physician, fellow at the American Enterprise Institute, and President Trump’s nominee to lead the U.S. Food and Drug Administration (FDA). During the hearing, Democratic Senators questioned Gottlieb heavily on his financial ties—Gottlieb has invested in or consulted for more than two dozen companies in the drug and medical device industries—to the industries he would regulate as FDA Administrator. Senator Chris Murphy (D-Conn.) reportedly told Gottlieb “[t]he worry here is that there will be industry-supported reforms that will find a voice inside of the agency because of your connection to the industry.”

• Governors of four states that have legalized recreational marijuana—Bill Walker of Alaska, John Hickenlooper of Colorado, Kate Brown of Oregon, and Jay Inslee of Washington—sent a letter to Attorney General Jeff Sessions and Treasury Secretary Steven Mnuchin, asking that the federal government maintain the current balance between “allowing the states to enact reasonable regulations and the federal government’s interest in controlling some of the collateral consequences of legalization.” The governors cite a 2013 memo released by the U.S. Department of Justice that established the balance between states and the federal government, and ask “the Trump Administration to engage with [them] before embarking on any changes to regulatory and enforcement systems.”

• The Consumer Products Safety Commission proposed new safety standards that are would aim to increase the safety of “infant inclined sleep products,” including hammocks and rockers. The proposed standards come in response to data on infant inclined sleep products that show there have been 657 incidents involving these sleep products since 2005, including 14 deaths.

WHAT WE’RE READING THIS WEEK

• An analysis by Maggie Koerth-Baker of FiveThirtyEight delves into the history of what past efforts at environmental deregulation in the United States and Russia meant for environmental quality. Koerth-Baker, noting the challenges to answering this question, concludes that while these efforts “don’t seem to have led to long-term, universal reductions in environmental quality,” they do tend to exacerbate regional differences in environmental quality and public health.

• In a recent essay for Vox, Professors Tom Baker of the University of Pennsylvania Law School and Daniel Hemel of the University of Chicago Law School describe four things they believe states can do to prevent the Affordable Care Act (ACA) from “exploding” due to President Trump potentially “undermining the health care law by deliberately failing to carry out important elements of it.” Baker and Hemel argue that states should pass measures that function as fail-safes for the ACA’s individual mandate and employer mandate, use the funds raised by their fail-safe measures to fund enrollment drives, and reimburse insurers for cost-sharing reductions if the Trump Administration stops paying reimbursements.

• In a recent op-ed, the Editorial Board of The New York Times observes that despite the U.S. Supreme Court’s involvement in addressing hot-button political issues, “nominees to the court have been largely insulated from the escalating political warfare over the judiciary, and have been approved”—for example, the conservative late Justice Antonin Scalia was approved with 98 votes, and the liberal Justice Ruth Ginsburg was approved with 96. The Editorial Board asserts that the Court “is devolving into a nakedly partisan tool,” and assigns the blame largely to Senator Mitch McConnell (R-Ky.), alleging that “he deeply degraded the nominating process” by refusing to hold a hearing for Judge Merrick Garland, who President Obama appointed to the Court.