Week in Review

IN THE NEWS

• The midterm elections shifted control of the U.S. House of Representatives to the Democratic Party and kept the U.S. Senate under control of the Republican Party. Several states also passed noteworthy ballot measures: Michigan legalized recreational marijuana, Florida restored voting rights to former felons, and Massachusetts upheld a state law protecting transgender rights in public places. In addition, Alabama and West Virginia both approved state constitutional amendments declaring that abortion is not a right protected by the state.
• Jeff Sessions resigned from his post as Attorney General at President Donald J. Trump’s request. Although Sessions claimed to have had a successful tenure on the immigration, opioid, and firearms fronts, he faced criticism from Democrats; American Civil Liberties Union Executive Director Anthony D. Romero called him “the worst attorney general in modern history.” In Sessions’s place, President Trump named Matthew Whitaker, Sessions’s chief of staff, as Acting Attorney General. Commentators have speculated that Sessions’s resignation and the appointment of Whitaker could lead to restrictions on Special Counsel Robert Mueller’s Russia probe.
• The Justice Department and the U.S. Department of Homeland Security adopted an interim rule restricting the ability of migrants to seek asylum at the U.S.–Mexico border. Migrants subject to a forthcoming presidential proclamation will be ineligible for asylum, and will be brought to ports of entry to be processed. Pro-immigrant advocates have criticized the rule, with Eleanor Acer of Human Rights First calling it a “violation of the Constitution.”
• The U.S. Supreme Court declined to review a 2016 decision to uphold the Obama-era net neutrality rules by the U.S. Court of Appeals for the D.C. Circuit. Free Press Policy Director Matt Wood praised the decision, which preserves a D.C. Circuit precedent approving net neutrality regulation under federal telecommunications law. Federal Communications Commission (FCC) Chairman Ajit Pai reportedly disagreed with the decision but expressed confidence that the FCC’s 2017 order undoing net neutrality would also be upheld by the D.C. Circuit.
• FCC Chairman Pai sent letters to major U.S. telecommunications providers demanding that they crack down on illegal robocalls. Pai noted the threat of spoofing—masking the origin of calls by using a number from the same region—and described the effort to implement a stronger call authentication system as a “top consumer priority at the FCC.”
• In its first opinion of the term, the U.S. Supreme Court ruled 8-0 that the federal statute barring age discrimination applies to government employers regardless of how many people they employ. Justice Ruth Bader Ginsburg wrote that the text of the Age Discrimination in Employment Act of 1967 left “scant room for doubt” that its application to employees who have “twenty or more employees” only referred to non-governmental entities. Justice Brett Kavanaugh did not participate in the consideration or decision of the case, which was argued before his confirmation.
• The U.S. Environmental Protection Agency (EPA) announced changes to the permitting process for power plants and other facilities producing air pollution. The new rule allows for “project aggregation,” allowing the consideration of multiple changes to a facility as a single project as long as the changes are related to one another. A project of this sort now requires only a single permit, whereas individual permits used to be required for each change. EPA Acting Administrator Andrew Wheeler claimed that this policy “will remove undue regulatory barriers.”
• The U.S. Food and Drug Administration (FDA) approved the first drug for beef cattle that reduces the amount of ammonia gas produced by the animals and their waste. FDA explained that limiting these emissions from cattle will help reduce air and water pollution produced by livestock. FDA stated that the new drug is “safe to feed to beef cattle” and that meat from cattle that ingest the drug is “safe for people to eat.”
• FDA published final guidance on new rules for nutrition facts labels, including a requirement to declare the amount of added sugars in one serving of a food product. The guidance also extended the compliance date to January 2020 for manufacturers with more than $10 million in sales. In addition, FDA released draft guidance describing how manufacturers can determine appropriate serving size and label food packages containing more than one serving.
• Tesla replaced its founder, Elon Musk, with Robyn Denholm, an executive with Australia’s largest telecommunications company, as chair of its board of directors. Musk had stepped down as chairman in a settlement with the U.S. Securities and Exchange Commission following charges that he had knowingly misled investors about a plan to take the company private at a “substantial premium to its trading price at the time.” Musk retained his position as CEO of the company.

WHAT WE’RE READING THIS WEEK

• Sanctuary efforts for undocumented immigrants are “evolving” in parallel with the anti-sanctuary movement, wrote Professor Rose Cuison Villazor of Rutgers University School of Law and Professor Pratheepan Gulasekaram of Santa Clara University School of Law in a forthcoming article for the UC Davis Law Review. Villazor and Gulasekaram emphasized that new sanctuary and anti-sanctuary efforts by states, cities, companies, and private citizens demand an updated legal framework reflecting a range of considerations including property rights, state and local government authority, and public policy.
• Jeff Sessions’s departure as Attorney General marks a “profoundly dangerous moment” in the investigation of President Trump’s possible ties to Russia, wrote Mikhaila Fogel, Susan Hennessey, Quinta Jurecic, Matthew Kahn, Anushka Limaye, and Benjamin Wittes in an article for Lawfare. Fogel and her co-authors expressed concern that Sessions’ successor, Matthew Whitaker, had criticized Robert Mueller’s investigation of the President and might try to limit it. Fogel and her co-authors noted, however, that Whitaker may be compelled to recuse himself from the investigation, owing to his statements about it and his connections to individuals involved.
• In a working paper for the International Monetary Fund (IMF), Gabriele Ciminelli of the Tinbergen Institute in the Netherlands, and Romain Duval and Davide Furceri of the IMF assessed the impact of job protection deregulation in advanced economies. Ciminelli and his co-authors found a “statistically and economically significant negative effect of weaker job protection on labor shares”—the portion of a national income that goes to workers’ wages. They said “the results call for more research” to examine how job protection deregulation relates to technology and globalization in contributing to the decline of labor shares and to ensure that concerns of “efficiency and equity” are balanced when designing labor policies.