Week in Review

IN THE NEWS

• The U.S. House of Representatives voted 263–158 to reauthorize the Violence Against Women Act, which protects victims of domestic and sexual violence. The National Rifle Association reportedly criticized a new part of the law that bans abusive domestic partners from owning firearms, calling it “too broad and ripe for abuse.” Supporters reportedly agreed that the ban is needed, pointing to data that suggest that over half of female homicide victims were killed by intimate partners.
• In a 6–3 vote, the U.S. Supreme Court ruled that expert testimony in an administrative hearing for Social Security Disability Insurance benefits can count as “substantial evidence” even if experts refuse to produce the data underlying their opinions. Without taking a position on the sufficiency of the evidence in the case, Justice Elena Kagan held that expert witnesses’ refusal to produce supporting evidence does not categorically require a court to infer that their testimony is not credible. In separate dissents, Justices Sonia Sotomayor and Neil Gorsuch both wrote that the evidence in this case was insufficient to support a denial of the applicant’s benefits.
• The U.S. House of Representatives passed a resolution condemning the Trump Administration’s support for a recent decision of the U.S. District Court for the Northern District of Texas that invalidated the Affordable Care Act (ACA). The resolution calls the Administration’s challenge to the ACA “an unacceptable assault on the health care of the American people.” Although House Speaker Nancy Pelosi (D-Calif.) promised that Democrats “will fight relentlessly in court and in the Congress” to protect the ACA, House Minority Leader Kevin McCarthy (R-Calif.) reportedly said that the resolution would do nothing for Americans’ health care.
• The U.S. Department of Labor proposed a new four-part test for determining if two businesses jointly employ workers under the Fair Labor Standards Act. If adopted, this would be the first substantive amendment to the Labor Department’s joint employment standard since 1958. The new test aims to fill a void left by the 2017 withdrawal of the Obama Administration’s guidance on joint employer status.
• Six states and Washington, D.C. sued the U.S. Department of Agriculture (USDA) for rolling back an Obama-era rule that raised nutrition standards for school lunches. The complaint alleged that USDA failed to provide an opportunity for the public to comment on certain parts of new rule, as required by the Administrative Procedure Act. The states also argue that the change was not based on “tested nutritional research,” as required by Congress. “The Trump Administration has undermined key health benefits for our children—standards for salt and whole grains in school meals—with deliberate disregard for science, expert opinion, and the law,” New York Attorney General Letitia James said.
• The House Appropriations Committee’s Subcommittee on the Interior, Environment, and Related Agencies held a hearing on the fiscal year 2020 budget request for the U.S. Environmental Protection Agency (EPA). EPA Administrator Andrew Wheeler testified before the Subcommittee, responding to concerns about the policy impacts of a 31 percent budget cut for the agency. Wheeler reportedly stated, “We’re trying to be very creative with what we are doing with the budget, in today’s world where we are trying to tighten our belts across the board.” Subcommittee Chair Betty McCollum (D-Minn.) called the budget request “unrealistic,” suggesting that Congress will reject the proposed cuts.
• The U.S. Senate voted to reduce the amount of debate time required before confirming executive nominees and federal District Court judges from up to thirty hours to up to only two hours. Speaking from the Senate floor, Minority Leader Chuck Schumer (D-N.Y.) agreed with Senator Amy Klobuchar (D-Minn.) that “two hours for a lifetime appointment with a huge influence on people’s lives is unacceptable.” Majority Leader Mitch McConnell (R-Ky.) responded that the President is “entitled to set up the administration and make it function.”
• The U.S. Department of Energy published a final rule amending cost sharing for research or development activities under the Energy Policy Act of 2005. Specifically, the rule exempts higher education and nonprofit institutions from the requirement that research entities obtain at least 20 percent of the funding for research or development activities from non-federal sources.
• The U.S. Fish and Wildlife Service requested public comment on applications to conduct certain activities with endangered species. Among the applicants, the Los Angeles Zoo and Botanical Garden applied for a captive-bred wildlife registration for over 30 endangered species, including the snow leopard, maned wolf, and chimpanzee. The comment deadline is May 1, 2019.

WHAT WE’RE READING THIS WEEK

• What role does cost-benefit analysis (CBA) play in an era of deregulation? In a recent paper, Daniel Farber of Berkeley Law argued that the Trump Administration’s deregulatory approach has focused entirely on the costs of regulation without consideration of their benefits. Farber suggested that recent procedural changes—such as a proposed EPA rule that would allow the agency to ignore certain relevant evidence in cost-benefit calculations—may signal the declining importance of CBA as the “standard for rational, data-driven decision making.”
• A recent Columbia Law Review article by George Washington University Law School Professors David Fontana and Naomi Schoenbaum analyzed how the sex-based pregnancy regulations that implement the Family and Medical Leave Act (FMLA) hinder equality. Fontana and Schoenbaum emphasized that FMLA allows childcare exceptions for expectant mothers but excludes protections for expectant fathers who want to participate in caregiving roles. The authors argued that these gendered regulations continue to reinforce the stereotype that women are the primary childcare providers.
• Congress should consider the implications of expanding the U.S. Copyright Office’s rulemaking authority when considering amendments to the Copyright Act, Joseph P. Liu of Boston College Law School argued in an article for the Berkeley Technology Law Journal. Liu found that, historically, the Copyright Office’s rulemaking power focused on administering statutory licenses and rarely involved issuing substantive rules. Liu highlighted both risks and opportunities in expanding the Office’s regulatory agenda to include more substantive rulemaking. Such an expansion may involve shaping policy in important areas such as fair use, which permits use of copyrighted work for purposes such as research, teaching, and news reporting.