Week in Review

IN THE NEWS

• In a 5–4 decision, the U.S. Supreme Court ruled that political gerrymandering claims were political questions beyond the reach of the federal courts. Chief Justice John Roberts delivered the majority opinion, writing that “there are no legal standards discernible in the Constitution for making such judgments, let alone limited and precise standards that are clear, manageable, and politically neutral.” In a joint dissent, Justice Elena Kagan criticized the majority’s refusal to remedy a constitutional violation which targeted “the most fundamental” right to participate equally in the political process.
• The Supreme Court held 5–4 that the U.S. Department of Commerce’s explanation of its decision to add a citizenship question to the census was pretextual, and thus violated the requirement that agencies “disclose the basis” of their actions under the Administrative Procedure Act. On its finding, the Court affirmed the U.S. District Court for Southern District of New York’s prior decision to remand the issue to the Department for further explanation. Justice Clarence Thomas dissented in part, calling the decision “an unprecedented departure from our deferential review of discretionary agency decisions.”
• The Supreme Court declined by a 5–4 vote to overrule the longstanding doctrine of “Auer deference,” which counsels courts to defer to an agency’s reasonable interpretation of its own ambiguous regulations. Writing for the majority, Justice Kagan emphasized that the Court has “cabined Auer’s scope” and thus “maintained a strong judicial role in interpreting rules.” Justice Neil Gorsuch, however, argued in a concurring opinion that Auer deference should be abandoned because it creates “systematic judicial bias in favor of the federal government, the most powerful of parties, and against everyone else.”
• In a 6–3 decision, the Supreme Court ruled that the Lanham Act’s prohibition on trademarking scandalous or immoral material was unconstitutional. Justice Kagan, author of the majority opinion, held that such a prohibition favored conventional ideas, specifically noting how “this facial viewpoint bias in the law results in viewpoint discriminatory application.” Justice Sonia Sotomayor expressed concern about the consequences of the decision by creating a “rush to register.”
• The Supreme Court held 7–2 that a residency requirement to sell liquor in Tennessee unconstitutionally discriminated against out-of-state residents. Writing for the Court, Justice Samuel Alito held that the 21st Amendment, which granted states the power to regulate alcohol, does not shield states from complying with the Commerce Clause. To hold otherwise, he stated, would mean that “a state law prohibiting the importation of alcohol for sale to persons of a particular race, religion, or sex would be immunized from challenge under the Equal Protection Clause.”
• President Donald J. Trump signed an executive order intended to increase disclosure of health care costs to patients. The order directs the U.S. Department of Health and Human Services (HHS) to propose a new regulation that would require hospitals to post standard pricing information to enhance patients’ ability to make informed decisions about their care. The order also instructs HHS, the U.S. Department of the Treasury, and the U.S. Department of Labor to coordinate in proposing rulemaking to establish procedures through which insurers would inform hospitals of expected out-of-pocket costs.
• The Federal Trade Commission (FTC) and attorneys general of 15 states announced a new enforcement initiative targeting robocallers. “Operation Call it Quits” includes the filing of 94 new cases against telemarketers that the FTC alleges have made over a billion illegal calls to consumers. Alex Quilici, CEO of robocall-blocking software company YouMail, reportedly emphasized that enforcement action is only a temporary solution, as companies that are shut down are quickly “replaced by someone else who often does the same scam.”
• Assistant Administrator William Wehrum of the U.S. Environmental Protection Agency’s (EPA) Office of Air and Radiation resigned. Wehrum’s resignation comes four months after an announcement by the House Committee on Energy and Commerce that it was investigating Wehrum for alleged ethics violations. Committee Chair Frank Pallone, Jr. (D-N.J.), Senator Sheldon Whitehouse (D-R.I.), and Senate Environment and Public Works Committee Ranking Member Tom Carper (D-Del.) alleged that Wehrum encouraged EPA to support the position of his former client DTE Energy in litigation before the Supreme Court.
• U.S. Customs and Border Protection chief John Sanders reportedly resigned, to be replaced by Mark Morgan, the acting head of U.S. Immigration and Customs Enforcement. The change comes amid reports that over 100 migrant children have been returned to a Texas detention facility days after being removed due to unsanitary conditions and overcrowding.

WHAT WE’RE READING THIS WEEK

• Originalist critiques of the constitutionality of the administrative state may rest on shaky historical ground, according to a forthcoming article by University of Pennsylvania Law School professor Sophia Lee in the University of Pennsylvania Law Review. Lee highlighted a growing body of historical research demonstrating that federal agencies in the 19th century exercised broad discretion in adjudicating constitutional claims, often with minimal or no judicial review. The possibility that agencies, rather than courts, were historically the primary interpreters of the Constitution should trouble those who advocate a return to 19th century administrative law as a means of reining back the administrative state, according to Lee.
• A new policy paper by Simon Lester and Huan Zhu of the Cato Institute investigated the use of national security objectives as a rationale to restrict international trade and to protect domestic industries. Lester and Zhu examined the World Trade Organization’s current tariff dispute resolution process and concluded that the process is ill-suited for resolution of tariff conflicts driven by national security concerns. Instead, the authors suggested that national security trade disputes be resolved through new international trade rules that would balance national security barriers applied to some products and services with the liberalization of trade for others.
• Emily Badger of The New York Times noted how President Trump has targeted an ostensibly bipartisan issue by calling for the elimination of regulations that delay new housing construction. Although this seemingly aligns with affordable housing advocates on the left, the regulations set to be eliminated include restrictive zoning and rent control rules, which some progressives worry will create barriers to accessing affordable housing. “Some things progressives like are raising the cost of development and making housing really unaffordable in some metros,” said Joseph Gyourko, a professor at the Wharton School of the University of Pennsylvania, who was quoted in the Times piece.