Week in Review

IN THE NEWS

• The U.S. Department of Homeland Security (DHS) issued a final rule directing immigration officials to deny entry to prospective immigrants who, if admitted to the United States, are likely to rely on public benefits. The rule provides guidance by defining the factors DHS officials must consider in making a determination as to whether or not an individual is likely to become a “public charge.” Two California counties have filed a lawsuit challenging the new rule, arguing that it will “coerce thousands of immigrants and their family members to forgo or disenroll from critical federally-funded, county-administered programs,” harming people’s well-being and shifting higher costs to states.
• The U.S. Department of the Interior announced plans to streamline aspects of the Endangered Species Act. Congressman Markwayne Mullin (R-Okla.) supported the revisions, stating that the Endangered Species Act has “created burdensome red tape and unnecessary obstacles for landowners, small businesses, and communities to comply with.” Criticizing the proposal, Senator Tom Udall (D-N.M.) stated, “allowing cost calculations of big polluters to determine whether a species deserves protection—while denying climate science and rolling back protections for habitat—is the absolute wrong approach at a time when we are in the middle of a human-caused sixth mass extinction.”
• The Trump Administration reportedly circulated drafts of a proposed executive order that would direct the Federal Communications Commission (FCC) and Federal Trade Commission (FTC) to police alleged social media bias. Reports suggest that the FCC would be responsible for issuing new rules clarifying and limiting protections available under the Communications Decency Act to social media companies that remove content from their platforms. The FTC would enforce new FCC rules. FCC Commissioner Jessica Rosenworcel’s response to reports of the proposal suggests that any final order may be met with skepticism by the independent agencies.
• House Judiciary Committee Chair Jerrold Nadler (D-N.Y.) and Ranking Member Doug Collins (R-Ga.) sent a letter questioning Federal Bureau of Prisons (BOP) Acting Director Hugh Hurwitz about the suicide of accused sex-trafficker Jeffrey Epstein while in BOP custody. In their letter, Nadler and Collins asked Hurwitz to provide answers to 23 questions about BOP suicide deterrence policies generally and about the circumstances of Epstein’s confinement. Emphasizing that Epstein’s suicide allowed him to “ultimately evade facing justice,” Nadler and Collins also referenced Attorney General William Barr’s demands that questions raised by Epstein’s suicide be answered by BOP.
• The U.S. Department of Labor announced a proposed rule that would allow companies that contract with the U.S. government to claim a religious exemption from federal anti-discrimination laws. Acting Secretary of Labor Patrick Pizzella stated that the rule “helps to ensure the civil rights of religious employers are protected.” The American Civil Liberties Union called the proposed rule “taxpayer-funded discrimination in the name of religion,” noting that the rule would “let government contractors fire workers who are LGBTQ, or who are pregnant and unmarried, based on the employers’ religious views.”
• President Donald J. Trump announced that he would temporarily delay implementation of 10 percent tariffs on certain consumer goods imported from China. He voiced his concern that the tariffs, which would be levied on consumer goods such as cell phones, laptops, video game consoles, and clothing, would negatively affect U.S. consumers shopping for holiday gifts. David French, senior vice president for government relations at the National Retail Federation, urged the Trump Administration “to develop an effective strategy to address China’s unfair trade practices by working with our allies instead of using unilateral tariffs that cost American jobs and hurt consumers.”
• A coalition of 22 states and several cities sued the U.S. Environmental Protection Agency (EPA) for repealing the Clean Power Plan and replacing it with the Affordable Clean Energy (ACE) rule, which loosens federal carbon emissions standards. New York Attorney General Letitia James, who leads the coalition, stated that the ACE rule violates the Clean Air Act (CAA) requirement that federal emissions limits be based on the “best system of emissions reduction.” EPA has not commented on the lawsuit but previously described the rule as “consistent with EPA’s role as defined in the CAA.”
• The House Committee on Oversight and Reform announced an investigation into three drug companies’ alleged obstruction of a congressional probe into generic drug prices. Committee Chair Elijah Cummings (D-Md.) announced that he and Senate Budget Committee Ranking Member Bernie Sanders (I-Vt.) sent letters this week to Heritage Pharmaceuticals, Mylan N.V., and Teva Pharmaceutical Industries Ltd., renewing a 2014 request for documents related to generic drug prices and opening an investigation into an alleged coordinated effort by the three companies to evade the prior request. The investigation will directly respond to allegations of price fixing and inflation raised three months ago in a complaint filed by 44 states in the U.S. District Court for the District of Connecticut against Heritage, Mylan, Teva, and other pharmaceutical manufacturers.
• Canadian Ethics Commissioner Mario Dion found that Canadian Prime Minister and Liberal Party leader Justin Trudeau violated the country’s ethics laws. Trudeau attempted to pressure former Attorney General Jody Wilson-Raybould to negotiate a so-called remediation agreement with SNC-Lavalin, which would have allowed then-pending criminal charges against the company to be suspended or deferred. In his report, Dion wrote that Trudeau’s attempts to influence the Justice Minister’s decision-making improperly furthered the private interests of SNC-Lavalin, in a manner “contrary to the constitutional principles of prosecutorial independence and the rule of law.”

WHAT WE’RE READING THIS WEEK

• Notice-and-comment procedures are an important tool of political action, according to Matthew Cortland, a Massachusetts attorney, and Karen Tani of University of California, Berkeley School of Law. In addition to the important role that public comments play as evidentiary support for eventual legal challenges to agency actions, Cortland and Tani argued that notice-and-comment procedures enhance democracy by creating a public record of the impacts of government decision-making. They further noted that the procedures offer marginalized people an opportunity to “call out the power dynamics they see operating in the world.”
• In a recent essay, Paul Robinson and Muhammad Sarahne of the University of Pennsylvania Law School outlined measures that the criminal justice system could implement to reward criminal offenders’ positive post-offense conduct. Robinson and Sarahne examined the potential impact of providing benefits to offenders who participate in activities such as treatment or educational programs. Benefits could include consideration of offenders’ preferences as to location or punishment method. Such a system, Robinson and Sarahne argued, would better achieve the goals of the criminal justice system by providing fair and equitable treatment.
• Paperless voting machines are far from becoming secure in time for the 2020 election, according to a report by Andrea Córdova, Liz Howard, and Lawrence Norden of the Brennan Center for Justice. They observed that in 2020, eight states will continue to employ electronic voting machines—which leave no verifiable paper trail—and of the 42 states using machines that provide a paper record of votes cast, only 25 require post-election audits of the electronic tally. The report recommended greater emphasis on securing electronic machines against cyber-threats and on requiring post-election audits whereby electronic results are compared to paper voting records.