Week in Review

IN THE NEWS

• Neil Gorsuch was sworn in as an Associate Justice of the U.S. Supreme Court on Monday. Court watchers believe the addition of Justice Gorsuch to the bench has the potential to upend the method that courts have used to review agency decisions. Justice Gorsuch, has described that method, articulated in the Court’s 1984 decision in Chevron v. Natural Resources Defense Council which requires judges to defer to reasonable agency interpretations of ambiguous laws, has described Chevron as “a judge-made doctrine for the abdication of the judicial duty.”

• The U.S. Court of Appeals for the D.C. Circuit ruled that the U.S. Environmental Protection Agency (EPA) erred in exempting a majority of farms from air pollution reporting requirements. In 2008, EPA created hazardous substance reporting exemptions for all farms except concentrated animal feeding operations. EPA had concluded that the reports of such air pollution were unnecessary because “in most cases, a federal response is impractical and unlikely.” The environmental groups challenging EPA’s exemption argued that the agency did not have the authority to grant reporting exemptions for releases of hazardous substances into the air when those releases exceed regulatory reportable quantity. In an opinion written by Judge Stephen Williams , the court held that EPA’s “desire for efficiency” did not “give the agency carte blanche to ignore the statute whenever it decides the reporting requirements aren’t worth the trouble.”

• The Office of Management and Budget (OMB) issued a memorandum lifting President Donald Trump’s federal hiring freeze, replacing it with what OMB Director Mick Mulvaney reportedly called “a more strategic plan” designed to reshape the federal government. In keeping with the presidential memorandum that established the freeze, the OMB memorandum directs agencies to take immediate steps to reduce their staff and to submit plans to “maximize employee performance” by the end of June. Mulvaney did not specify how much hiring will take place under the new plan, but he reportedly said that some offices or agencies could be merged with similar ones or removed.

• President Trump announced his nomination of Neomi Rao, a professor at the Antonin Scalia Law School, George Mason University, to be the next Administrator of the Office of Information and Regulatory Affairs (OIRA). OIRA, a part of the White House Office of Management and Budget, reviews agency regulations and can send back to agencies draft regulations that do not align with the president’s goals. Assuming Rao is confirmed, she will presumably play a major in implementing President Trump’s claimed objective of eliminating 75 percent of federal regulations.

• The full U.S. Court of Appeals for the Fourth Circuit announced that it will conduct a hearing on May 8 to consider whether President Donald Trump’s travel ban disfavors a particular religion in violation of the First Amendment. President Trump issued a second executive order temporarily banning the issuance of visas to citizens of six majority-Muslim countries on March 6, after federal district courts and the U.S. Court of Appeals for the Ninth Circuit blocked his initial attempt at a travel ban. On Tuesday, attorneys representing the state of Hawaii asked the full Ninth Circuit Court to hear a parallel appeal.

• The U.S. Department of Labor’s Employment and Training Administration issued a notice, effective immediately, regulating the amount employers of H-2A foreign agricultural workers can charge their employees for meals provided by the employer, as well as travel subsistence reimbursements for employers of H-2A and H-2B workers. Employers giving H-2A workers three meals a day may now charge no more than $12.07 per day unless the Office of Foreign Labor Certification allows otherwise. The subsistence reimbursement sets a maximum of $51.00 per day for “Meals and Incidental Expenses” if the workers have receipts. The minimum for travel subsistence for meals cannot fall below the annual figure established by the U.S. Consumer Price Index for All Urban Consumers for food.

• The U.S. Securities and Exchange Commission (SEC) announced fraud charges against 27 individuals and entities, including three public companies, seven stock promotion firms, and two corporate CEOs, alleging that they engaged in stock promotion schemes that disguised promotional materials as unbiased analyses intended to mislead potential investors. Melissa Hodgman of SEC’s Division of Enforcement reportedly denounced the schemes as “deliberate efforts to reach prospective investors with positive articles about a stock while hiding that the companies paid for those articles.” Currently, more than half of those charged have agreed to settlements with penalties that range from $2,200 to $3 million.

• The U.S. Food and Drug Administration (FDA) recently issued a warning to consumers about products that claim to cure or treat autism. In the press release, FDA reminds consumers that autism has no cure, and it cautions that some of the products, including chelation therapies, hyperbaric oxygen therapy, and detoxifying clay baths, can cause harm. Jason Humbert, a regulatory officer in FDA’s Office of Regulatory Affairs, reportedly said consumers should be wary of “quick fix” treatments and “miracle cures.”

• Following an incident involving United Airlines security personnel forcibly removing a passenger on its flight from Chicago to Louisville this week, Senator Richard Blumenthal (D-Conn.) called for a federal investigation of the airline and its practices. The U.S. Department of Transportation is currently reviewing the incident to “determine whether the airline complied with the oversales rule.” Senator Blumenthal, in a letter to Transportation Secretary Elaine Chao, demanded measures to “ensure airlines are not prioritizing their employees over passengers” and to address the overbooking problem in the commercial aviation industry.

WHAT WE’RE READING THIS WEEK

• A recent report from Everytown for Gun Safety focused on mass shootings in the United States from 2009 to 2016, arguing that the data underscore the need for better preventative policies. The findings reveal that domestic abusers, individuals showing “warning signs,” and people with a criminal history were often the perpetrators of mass shootings. Given these findings, the report highlights the importance of policies that prohibit firearm ownership by domestic abusers, that take firearms out of the hands out of dangerous individuals through restraining orders, and that close the “unlicensed sale loophole” by imposing background checks on all firearms sales, not just those through licensed dealers.

• In a report for the Brookings Institution, Philip Wallach and Nicholas Zeppos argue that the scope of a “souped-up” Congressional Review Act (CRA) is significantly narrower than others have suggested. The CRA mandates that agencies report all new rules to Congress, which then has 60 days to pass a resolution of disapproval to nullify the rules. Several commentators have  interpreted the 60-day window for reversal to remain open if the agency never properly reported the rule to Congress and the Comptroller General. Wallach and Zeppos conjecture that Congress is unlikely to make frequent use even of a “souped-up” CRA.

• Writing for the American Action Forum, Sam Batkins discusses the first “out” under the Trump administration’s “one-in, two-out” system for regulations. The U.S. Department of Labor published a formal delay of the applicability dates to its fiduciary rule, which “extends for 60 days the applicability date of the final regulation” and related exemptions. This delay reportedly reduced regulatory costs this week alone by $107 million.