Week in Review

IN THE NEWS

• The U.S. Department of Homeland Security modified the Flores Settlement, which provides protective standards for detaining children in detention centers. Senator Elizabeth Warren (D-Mass.) criticized the revision, stating that it would put “thousands of children in danger” by overhauling a requirement under the Flores Agreement that children cannot be held in a detention center for over 20 days. Senator Lindsey Graham (R-S.C.) had stated previously that as a measure to curb undocumented immigrants from entering the United States “if we don’t change the Flores decision, they’ll keep coming forever.”
• A U.S. Department of Health and Human Services (HHS) rule that prohibits recipients of Title X funding from referring clients to abortion providers went into effect. The U.S. Court of Appeals for the Ninth Circuit had declined a request by Planned Parenthood, the American Medical Association and more than 20 states to suspend the rule pending ongoing litigation. Planned Parenthood, which serves around 40 percent of all Title X patients, subsequently announced its withdrawal from the program. HHS officials reportedly stated that grantees that withdraw from Title X as a result of the rule are “abandoning their obligations to serve their patients under the program.”
• The U.S. Court of Appeals for the Ninth Circuit lifted a nationwide injunction blocking a Trump Administration policy denying asylum to migrants who enter the United States from Mexico without first applying for asylum in a third country they travelled through en route to the United States. But the court upheld the injunction within the Ninth Circuit, noting that the rule likely did not comply with the Administrative Procedure Act’s public comment requirements. Lee Gelernt, deputy director of the American Civil Liberties Union’s Immigrant Rights Project, reportedly stated that his organization would “continue fighting to end the ban entirely.”
• The U.S. Court of Appeals for the Seventh Circuit ruled that the Federal Trade Commission (FTC) lacked authority to seek monetary penalties from companies that defraud consumers. Recognizing that her decision broke from all other circuits, Judge Diane Sykes wrote, “most circuits adopted their position by uncritically accepting our holding in Amy Travel”—an influential Seventh Circuit decision where a company was ordered to pay restitution to the FTC. Judge Sykes, however, stated that “since Amy Travel, the Supreme Court has clarified that courts must consider whether an implied equitable remedy is compatible with a statute’s express remedial scheme.”
• The U.S. Court of Appeals for the D.C. Circuit ruled that a recent U.S. Environmental Protection Agency (EPA) guidance memorandum reclassifying “major source” polluters that lower their emissions levels cannot be reviewed by courts because the memo is not a final agency action. Judge Robert Wilkins stated that the memo has no legal force, and although EPA cannot therefore rely upon it in environmental permitting proceedings, the court cannot review the challenges to the memo advanced by the state of California and other plaintiffs. The memo aimed to rescind EPA’s prior policy—in place since 1995—that a “major source” polluter under the Clean Air Act could never be reclassified as a lesser “area source” polluter. EPA is currently collecting public comments on a proposed rule that would formalize the memo’s policy shift.
• Federal Election Commission Chair Ellen Weintraub asked President Donald J. Trump to stop claiming he lost New Hampshire electoral votes in 2016 due to election fraud. President Trump alleged voter fraud in the state within weeks of the 2016 election, but an advisory commission on electoral integrity failed to produce evidence of fraud. In the absence of such evidence, Weintraub said, the President’s recent reiteration that New Hampshire votes were taken from the Trump campaign in 2016 risks undermining the “American people’s faith in our elections.” Research from the Brennan Center for Justice has indicated that, despite President Trump’s claims, noncitizen voting in the 2016 election was rare.
• The Center for Food Safety and Center for Biological Diversity filed suit in the U.S. Court of Appeals for the Ninth Circuit against the U.S. Environmental Protection Agency (EPA) for approving the use of sulfoxaflor, a pesticide that is toxic to bees and butterflies. EPA had earlier decided to permit new uses of sulfoxaflor and to restore prior uses prohibited by EPA during the Obama Administration. The plaintiffs argued that EPA failed to compile substantial evidence required by the Federal Insecticide, Fungicide, and Rodenticide Act prior to authorization of new pesticide use.
• Three civil rights organizations sued U.S. Immigrations and Customs Enforcement (ICE) for “systemic failures to enforce constitutional and statutory requirements” at immigrant detention centers operated by the agency. They claimed that ICE’s failure to meet its requirements resulted in “the delay and outright denial of medical care, the punitive use of solitary confinement, the failure to provide mental health care, and discrimination against people requiring disability accommodations.” An ICE official reportedly disputed the claims and claimed that “comprehensive medical care” is provided to all detainees.
• President Trump issued a memorandum directing the Secretaries of Education and Veteran Affairs to forgive all federal student loan debt of permanently disabled veterans and eliminate the application process that asked veterans to prove their disabilities. President Trump recognized that the Higher Education Act of 1965 intended to absolve disabled veterans’ federal student loan debt, but he wrote that “the process has been overly complicated and difficult, and prevented too many of our veterans from receiving the relief for which they are eligible.” The decision came after 51 Attorneys General urged the U.S. Department of Education to alleviate the process for disabled veterans.

WHAT WE’RE READING THIS WEEK

• According to Michelle Kwon of the University of Tennessee College of Law, most roadblocks in regulation occur in the phase before public notice-and-comment. Kwon argued in a forthcoming paper in the Administrative Law Review that collaborative governance—a model under which agencies allow for increased public participation outside the notice-and-comment process—could ameliorate these regulatory bottlenecks. Although critics of collaborative governance argue that it does not actually improve the quality of rules or reduce delay in the process, Kwon claimed that increasing participation with established experts in an administrative field can mitigate these issues.
• U.S. investor-owned utilities must make significant changes to achieve deep decarbonization by 2050, Eli Kasargod-Staub and Kimberly Gladman of Majority Action argued in an article for the Harvard Law School Forum on Corporate Governance and Financial Regulation. Kasargod-Staub and Gladman noted that of the twenty largest publicly traded U.S. power generation companies, only one—Xcel Energy—has committed to net-zero carbon emissions by 2050. They concluded that investor-owned utilities should incorporate decarbonization goals into their governance structures and suggested that investors could leverage their proxy voting power to push utilities to adopt net-zero targets.
• The United States’ border control problems could be resolved through legal reforms to immigration programs offering a path to permanent residency, David Bier of the Cato Institute argued in a policy paper for the Institute. According to Bier, asylum’s status as the sole avenue for legal immigration for many migrants causes the current dysfunction in border control. As a solution, Bier recommended five reforms to the immigration system, including waiver of entry restrictions for Central Americans with family legally in the United States, expansion of refugee sponsorship and guest worker programs, legalization of undocumented immigrants without criminal records, and centralization of asylum application processing at the border.