Week in Review

IN THE NEWS

• The state of Texas and six other states sued federal officials over the legality of the Deferred Action for Childhood Arrivals (DACA) program, asking the court to declare DACA “unlawful” or gradually dissolve it by refusing to issue new DACA permits. The states cited DACA’s legal history—its September, 2017 rescission, an injunction of that rescission, and another court order invalidating the rescission—and asserted that their complaint was “emphatically about the rule of law.” The states alleged that DACA is inconsistent with existing case law.
• Seventeen states and the District of Columbia sued the U.S. Environmental Protection Agency (EPA) over its decision to repeal fuel efficiency standards. The states argued that EPA violated the Administrative Procedure Act (APA) because its decision to repeal was arbitrary and capricious. California Attorney General Xavier Becerra (D) said, “The evidence is irrefutable: today’s clean car standards are achievable, science-based and a boon for hardworking American families.”
• The U.S. Court of Appeals for the Second Circuit ruled that New York City can have “different regulatory requirements” for medallion taxis than for “for-hire vehicles” like Uber and Lyft. After examining the methods of hailing cars, the type of customers the companies have, and the information the customer gives to the driver, the court reasoned that medallion taxis and for-hire vehicles operate differently and that the applicable regulations reflect those differences. The court also found that the regulations do not deprive the medallion taxis of their due process rights and that they do not violate the Fifth Amendment’s Takings Clause.
• The U.S. Food and Drug Administration (FDA) and the Federal Trade Commission issued 13 warning letters to companies selling liquids used in e-cigarettes in kid-friendly packaging. FDA Commissioner Scott Gottlieb said, “It is easy to see how a child could confuse these e-liquid products for something they believe they’ve consumed before—like a juice box.”
• The Iowa legislature passed a bill that would prohibit abortion when a doctor can detect a fetal heartbeat. The heartbeat can be detected at about six weeks, which is sooner than Iowa’s current 20-week window for permissible abortions. The bill will go next to Iowa Governor Kim Reynolds (R)—who is reportedly “proud to be pro-life”—for her signature. Elizabeth Nash of the Guttmacher Institute reportedly called the bill “the most restrictive abortion ban in the country.”
• The Office of Special Counsel found that Commissioner Mike O’Rielly of the Federal Communications Commission violated the Hatch Act when he spoke at the Conservative Political Action Conference in February and called on attendees to “make sure that President Trump gets reelected.” The Hatch Act prohibits federal employees acting in their official capacity from endorsing political candidates, parties, or organizations.
• The U.S. Department of Justice released an indictment of Martin Winterkorn, former chief executive officer of Volkswagen, for purposefully failing to comply with emissions standards under the Clean Air Act. Prosecutors alleged that Winterkorn and others lied when they deemed Volkswagen vehicles “clean diesel” and that they hid the company’s “intentional emissions cheating from U.S. regulators, U.S. customers, and the U.S. public.” The Justice Department noted that Winterkorn’s indictment is part of a continuing investigation into what the agency called “unprecedented emissions cheating by” Volkswagen.
• Planned Parenthood sued the U.S. Department of Health and Human Services (HHS) over the “dramatic changes to the longstanding…criteria” for Title X family planning funding that it made in February. Planned Parenthood claimed that the modifications violated the APA because they are “contrary” to Title X and its associated regulations, they are arbitrary and capricious, and they were not the product of proper notice-and-comment rulemaking. Planned Parenthood asked the court to stop HHS from assessing Title X funding applications under the new criteria.
• At a press conference, Dr. Leana Wen, the health commissioner of Baltimore along witj Robert Weissman, the president of Public Citizen, and others implored the Trump Administration to clear the legal pathway to creating a generic version of naloxone, “the opioid rescue therapy,” in light of the opioid epidemic. Currently, manufacturers cannot create generic versions of the drug because the two brand name versions are patented—which prohibits generic replication—until 2034 and 2035. Wen and Weissman sent a letter to the White House detailing their demand.

WHAT WE’RE READING THIS WEEK

• In a book review for the Harvard Law Review, K. Sabeel Rahman of Brooklyn Law School reviewed Jon Michaels’s book Constitutional Coup. Rahman noted that the United States is in a period of administrative skepticism, which has led to efforts to “privatize and dismantle the administrative state” and centralize governmental control in the President. Rahman discussed how Michaels’s book defends the administrative state “as a central pillar of our modern constitutional structure.”
• In an article in The New York Times, Jason M. Bailey explored the regulatory implications of video games that involve activity similar to gambling, such as paying money for a random, game-related reward like avatar outfits or weapons. Bailey examined various attempts by states to regulate these “loot boxes” as they would lottery tickets or slot machines. Bailey also gathered input a variety of from stakeholders, including an industry professional who does not consider loot boxes to be gambling, an expert in “problem gambling” who does, and video game players who seem to support both sides of the issue.
• New York University School of Law’s Kimberly M. Castle and Richard L. Revesz argued in favor of “the valuation of particulate matter reduction” in a forthcoming paper for the Minnesota Law Review. Castle and Revesz noted that “opponents of environmental regulation” tend to deny or ignore the benefits of “particulate matter reductions.” But Castle and Revesz asserted that the benefits in fact “deserve a meaningful role in regulatory cost-benefit analysis.”