Week in Review

IN THE NEWS

• U.S. Department of Homeland Security (DHS) Secretary Kirstjen Nielsen resigned as part of a number of key departures from the Department. The editorial board of The New York Times criticized Nielsen’s handling of border policy, writing that “she was the face of some of the administration’s most poorly conceived and gratuitously callous policies.” Kevin McAleenan, who previously served as Commissioner of U.S. Customs and Border Protection, will serve as acting Secretary of Homeland Security. McAleenan applauded Nielsen’s “tireless work on behalf of the people and organizations of DHS.”
• U.S. Senator Bernie Sanders (I-Vt.) introduced the Medicare for All Act, co-sponsored by 14 Democratic senators, which would eliminate the private health insurance industry and establish a national health insurance system with universal coverage for U.S. residents. “Health care should be a right for every single American, not a privilege reserved for the healthy and the wealthy,” said U.S. Senator Jeff Merkley (D-Ore.), who is a co-sponsor of the bill. White House press secretary Sarah Sanders responded that the bill “confiscates every American’s private health insurance” and that “America will never be a socialist country.”
• The U.S. Office of Management and Budget issued a memo that expands White House review of federal agencies’ rulemaking. Starting next month, the Office of Information and Regulatory Affairs (OIRA) will review all rules to categorize them as major or minor. Under the Congressional Review Act, the agency must submit all rules to Congress for review. If Congress issues a joint resolution of disapproval with the President’s signature, then the agency cannot issue another similar rule. The memo clarifies that OIRA will determine if a rule is major even if its economic impact is below the usual $100 million threshold so long as it triggers a major increase in costs or entails significant adverse effects on the U.S. economy.
• President Donald Trump signed two executive orders aimed at removing barriers to the construction of fossil fuel pipelines. The first order directs the U.S. Environmental Protection Agency to review current law that allows states to challenge the construction of fossil fuel pipelines because of potential water pollution. The second order aims to streamline approval of cross-border pipeline and other energy infrastructure construction and transportation projects. The Trump Administration recently issued a special permit authorizing construction on the Keystone XL pipeline from Canada, responding to a November 2018 U.S. District Court for the District of Montana order halting the construction and rejecting the previous special permit.
• The U.S. House of Representatives passed a bill by voice vote to modernize and reform the Internal Revenue Service (IRS). If enacted, the bill would improve free electronic filing services for low-income taxpayers and boost cybersecurity and privacy initiatives focusing on identity theft. Representative Alexandria Ocasio-Cortez (D-N.Y.) reportedly criticized the bill for not authorizing the IRS to prepare tax returns automatically for Americans who have relatively simple and straightforward returns. The House passed a similar bill in 2018, but the U.S. Senate did not consider it.
• The U.S. District Court for the Northern District of California issued an order temporarily halting the Trump Administration’s policy of returning some asylum seekers to Mexico while their asylum claims are pending. Judge Richard Seeborg stressed“the possibility of irreparable injury” to the plaintiffs, who include asylum applicants from El Salvador, Guatemala, and Honduras. White House press secretary Sarah Sanders reportedly criticized the decision, saying it “gravely undermines the President’s ability to address the crisis at the border.”
• A federal grand jury indicted pharmaceutical company Invidior for allegedly engaging in an illegal nationwide scheme to boost prescriptions of its opioid-addiction treatment drug. The indictment alleged that Invidior falsely marketed the drug as safer and less prone to abuse than alternatives and used a telephone program to connect patients with doctors the company knew were carelessly prescribing the drug. Invidior has characterized the allegations as “wholly unsupported by either the facts or the law.”
• The U.S. Fish and Wildlife Service issued a final rule that added 16 new species to the endangered species list and removed one. The species are all aquatic, including four species of shark and two species of dolphin. The final rule also included critical habitat designations for species in the Gulf of Maine, Chesapeake Bay, the South Atlantic, and the Main Hawaiian Islands.
• The United Kingdom’s (UK) Department for Digital, Culture, Media & Sport and Home Office published a joint policy paper describing the government’s plans for regulation of social media platforms. The proposed regulatory framework includes laws that would hold companies to a duty to protect users from harmful content and plans for a new independent agency to oversee the regulation. Prime Minister Theresa May applauded the measures, stating that “online companies must start taking responsibility for their platforms, and help restore public trust in this technology.” Rebecca Stimson, Facebook’s UK head of public policy, reportedly stated that “these are complex issues to get right and we look forward to working with the government and parliament to ensure new regulations are effective.”

WHAT WE’RE READING THIS WEEK

• In a recent article for the Yale Law Journal, Kate Andrias of University of Michigan Law School shed light on what she called a largely neglected chapter of U.S. labor history: the creation of so-called “industry committees” under the Federal Labor Standards Act (FLSA) of 1938. As originally enacted, FLSA established industry committees composed of employers, unions, and public representatives that were empowered to set sector-wide minimum wages, albeit within a statutorily defined range. Before it was dismantled in the late 1940s, the committee system represented a distinctive model of participatory workplace governance that was largely successful in raising wages and facilitating rapid unionization during the New Deal era, according to Andrias.
• In a forthcoming article in the Melbourne University Law Review, Jane McAdam of University of New South Wales, wrote that international efforts to assist displaced immigrants need to be strengthened to respond to climate change and natural disasters. She noted that since the 1970s, the risk of disaster-related displacement has quadrupled. One solution to assist displaced people entails governments considering preventative regulations that implement disaster-warning systems and enforce building codes.
• Has the practicality of Auer deference, which directs courts defer to agency interpretations of their own regulations, diminished over the last two decades?  In a recent essay in the Minnesota Law Review’s Headnotes, Professor Kristin Hickman of the University of Minnesota Law School and Mark Thomson of Crowell & Moring argued that the practical goals of Auer deference have been steadily weakened by court-imposed limitations and exceptions. These limitations and exceptions include several types of agency interpretations which are not entitled to deference.