Week in Review

IN THE NEWS

• Judge Robert S. Lasnik of the U.S. District Court for the Western District of Washington halted the online release of blueprints for 3D-printed plastic guns, which, lacking serial numbers and metal parts, would be “untraceable.” Judge Lasnik’s temporary restraining order followed a complaint filed earlier this week by a number of state attorneys general which alleged that this release of information would be a “serious threat to the national security…in violation of the Administrative Procedure Act” (APA) as well as the Tenth Amendment to the U.S. Constitution. The states asserted that the federal government had failed to regulate the release of the blueprints appropriately.
• The U.S. Environmental Protection Agency (EPA) and the National Highway Traffic Safety Administration issued a notice of proposed rulemaking that would modify emissions standards for passenger cars and certain trucks. The rule, which would apply to model years 2021 through 2026, would in large part level off the permissible emission standards over those six years. In addition, the rule would rescind California’s ability to set its own emissions standards and, instead, would “maintain one national standard,” a move California Attorney General Xavier Becerra (D) declared “a brazen and unlawful attack.
• The American Civil Liberties Union and other civil rights groups filed a class action against Trump Administration officials over “punitive and inhumane” conditions in a California prison that detained immigrants and refugees must endure. The plaintiffs, detained at the prison by U.S. Immigration and Customs Enforcement, alleged that the officials have violated their rights under the Fifth and First Amendments to the U.S. Constitution as well as the Religious Freedom Restoration Act, by denying health care, restricting religious practices, and neglecting proper nutrition, for example.
• In a class action, more than 35 U.S. citizens, lawful permanent residents, and foreign nationals whose visas the government has denied or delayed sued Trump Administration officials over the “waiver” provision in the travel ban proclamation, which permits entry by certain prohibited individuals into the United States on a “case-by-case” basis. The plaintiffs asserted that the Trump Administration has not implemented the waiver provision, which has resulted in denials or delays of the plaintiffs’ visa applications. The plaintiffs alleged that the Trump Administration has violated the APA, the Immigration and Nationality Act, and the Fifth Amendment to the U.S. Constitution.
• Two San Francisco lawmakers, Ahsha Safai and Aaron Peskin, introduced an ordinance that would ban the construction of employee cafeterias in new office developments for technology companies in Silicon Valley. Safai reportedly said that this ordinance “is about making our city a healthier place to live” and “supporting restaurants, retailers and local small businesses that make up the backbone of our city.” An employee at a small tech startup opposed the measure, reportedly saying that it is “the wrong way to go to solve the problem,” citing the local jobs that private cafeterias create.
• California Insurance Commissioner Dave Jones urged the U.S. Department of Justice to block the proposed merger of CVS Health Corporation and Aetna, Inc., saying the deal “raises a number of competitive concerns for California health insurance and healthcare consumers.” Jones explained that the California Department of Insurance evaluated the effect of the merger on California’s health insurance market and found that it will “likely lead to increased prices and decreased quality.”
• The U.S. Department of the Treasury proposed a regulation implementing a certain section of the tax code—as amended by the Trump Administration’s Tax Cuts and Jobs Act—that applies to U.S. individuals who own shares of foreign corporations. The proposal is the first tax regulation to have been reviewed by the Office of Management and Budget (OMB) before publication, a practice that OMB recently implemented in light of a memorandum earlier this year.
• The U.S. Department of Education proposed “Institutional Accountability” regulations, which would “establish a federal standard for evaluating and a process for adjudicating borrower defenses to repayment” for higher education loans. The proposal would also allow the Secretary of Education to collect from schools financial losses resulting from discharges after successful borrower defenses.
• Under the Regulatory Flexibility Act of 1980, the Federal Communications Commission (FCC) requested comments on whether FCC rules that have ten-year anniversary dates in 2015 to 2016 should be continued, amended, or rescinded. The FCC said the purpose of the request is to “minimize any significant economic impact of such rules upon a substantial number of small entities.”

WHAT WE’RE READING THIS WEEK

• In a forthcoming article for the UC Davis Law Review, professor Howard F. Chang of the University of Pennsylvania Law School used an economic lens to examine efforts to restrict immigration to the United States. In particular, he compared current legislation aimed at decreasing immigration with a 2013 bill that “would have liberalized admissions to the United States.” Chang ultimately found “that economic analysis militates in favor of liberalizing” U.S. immigration law.
• In a recent article, John A. Townsend, an adjunct faculty member at the University of Houston Law Center, explored rulemaking by the Internal Revenue Service. Townsend rebutted the notion that regulations upheld under Chevron have the force of law and therefore are “legislative” regulations within the scope of the APA. Townsend took issue with these assertions, stating that “a court adopting…an agency interpretation of ambiguous statutory text does not transform interpretation into legislative rulemaking under the APA.”
• In a recent article, Saule Omarova, a professor at Cornell Law School, discussed “the rise of fintech” and the assertion that fintech “seems to promise a micro-level ‘win-win’ solution to the financial system’s many ills.” Omarova contested that assertion, arguing that fintech can be seen as a “systemic, macro-level phenomenon,” which has led to a “potentially decisive shift in the underlying public-private balance of powers, competencies, and roles in the financial system.”