Week in Review

IN THE NEWS

• The U.S. Environmental Protection Agency (EPA) and the U.S. Department of the Army repealed an Obama-era rule that had expanded the number of waterways classified as Waters of the United States under the Clean Water Act. EPA Administrator Andrew Wheeler also outlined plans to proceed with a new proposed definition of Waters of the United States that will “provide greater regulatory certainty for farmers, landowners, home builders, and developers nationwide.” American Farm Bureau Federation President Zippy Duvall praised the change, claiming that the previous rule “made conservation more difficult and created huge liabilities for farmers.” But Jon Devine, director of federal water policy at the Natural Resources Defense Council, accused the agencies of repealing “important protections without regard for the law or sound science,” adding that the change “will certainly be challenged in court.”
• The attorneys general from 48 states, the District of Columbia, and Puerto Rico announced a coalition investigation into possible state and federal antitrust violations at Google. The coalition intends to investigate Google’s control of online search engine and advertising markets and the impact of that control on consumers. Google was already under investigation by the Justice Department and the U.S. House Committee on the Judiciary for alleged antitrust concerns. Texas Attorney General and coalition leader Ken Paxton said the attorneys general have “evidence that Google’s business practices may have undermined consumer choice, stifled innovation, violated users’ privacy, and put Google in control of the flow and dissemination of online information.”
• The U.S. Supreme Court prevented a recent court decision by the U.S. District Court for the Northern District of California—applying a nationwide injunction on the “third country transit bar”—from taking effect. The district court’s decision had expanded the U.S. Court of Appeals for the Ninth Circuit injunction, which had applied the injunction to nine states. Created by the U.S. Department of Justice and the U.S. Department of Homeland Security, the rule at issue barred asylum to anyone who entered the United States at the southern border and did not first seek asylum in Mexico or another country. In dissent, Justice Sonia Sotomayor argued that the rule was “likely unlawful for at least three reasons,” stating that it conflicted with the asylum statute, failed to comply with rulemaking procedures, and was arbitrary and capricious.
• The Trump Administration announced plans to ramp up enforcement of a 2016 requirement that non-tobacco flavored e-cigarettes obtain pre-authorization to sell them from the U.S. Food and Drug Administration (FDA). “The Trump Administration is making it clear that we intend to clear the market of flavored e-cigarettes to reverse the deeply concerning epidemic of youth e-cigarette use that is impacting children, families, schools and communities,” U.S. Department of Health and Human Services Secretary Alex Azar said. American Lung Association President and CEO Harold Wimmer called the measure “a vital and positive step to address the youth e-cigarette epidemic.”
• The Center for Tobacco Products of FDA issued a warning letter against Juul for illegally marketing itself as a “modified risk” tobacco product in violation of the Food, Drug, and Cosmetic Act. The letter included a statement from a Juul representative telling students that Juul products were “99 percent safer than cigarettes,” which Anthony Villa, the Senior Regulatory Counsel for the Center for Tobacco Products Office of Compliance and Enforcement at FDA, considered to be evidence of their violations. Juul must submit a written response to the FDA by September 24 that detail a plan to comply with the Act.
• The U.S. Department of the Treasury and the Internal Revenue Service (IRS) proposed a new rule that would exempt certain non-profits, but not 501(c)(3) charitable organizations, from reporting donor names and addresses on their annual tax returns. In the proposed rule, the agencies argued that the IRS does not need donor names and addresses to carry out the internal revenue laws and that the requirement increases compliance costs for affected organizations. Emily Peterson-Cassin of Public Citizen accused the IRS of lessening its scrutiny of so-called dark money groups, stating that the change “gives bad actors the signal that they can interfere in our elections without much fear of consequence.”
• The states of New York, Connecticut, and Vermont, and the City of New York asked a federal judge to block the U.S. Department of Homeland Security’s (DHS) new rule preventing immigrants who have received public assistance benefits from securing permanent residency or visas to enter or remain in the United States. The rule, which is scheduled to go into effect October 15, also applies to immigrants who are “likely at any time to become a public charge,” as assessed by DHS staff. In announcing the request to block the new rule, New York Attorney General Letitia James said “If enforced, the public charge rule will not only sow fear and chaos into the lives of immigrants working to lift themselves and their families out of poverty, but will have an adverse impact on the health and wellbeing of New Yorkers, and individuals across this country.”
• In response to recent shootings, the Trump Administration is reportedly considering authorization of research on the use of smart device technology to identify mentally ill individuals in danger of turning violent. The President and Vice President were reportedly briefed on a proposal to launch a new research agency that would consider innovative solutions to health and safety problems, the first of which tentatively would be a mental health and mass violence program called Stopping Aberrant Fatal Events by Helping Overcome Mental Extremes, or SAFEHOME. Marisa Randazzo, CEO of threat assessment company SIGNA and former Chief Research Psychologist for the U.S. Secret Service, reportedly expressed concern that the use of technology to monitor the mentally ill raised serious questions about civil liberties while also relying on the flawed premise that there is a direct connection between mental illness and mass violence.
• The California State Senate passed a bill that would require employers to designate as employees any independent contractors that perform work within the usual course of the employers’ business. State Senator Maria Elena Durazo stated that the bill’s passage shows a decision “to rebuild the working and middle class, protect taxpayers, and help responsible businesses thrive.” Tony West, the Chief Legal Officer of Uber, responded to its passage by stating that Uber drivers will still be categorized as independent contractors because “drivers’ work is outside the usual course of Uber’s business.”

WHAT WE’RE READING THIS WEEK

• How realistic are current proposals, advanced by some Democratic presidential candidates, to absolve a large portion of American student debt? In a working paper, Luke Herrine of Yale Law School argued that the U.S. Department of Education’s statutory authority to “compromise, waive, or release” its claims against students allows the agency to cancel a substantial amount of debt without further legislation by Congress. Because the Education Department has absolute discretion to decide which of its claims to pursue, Herrine contended, a decision by the agency to cancel student debt also should not be subject to judicial review—although judges skeptical of the administrative state could and likely would find otherwise.
• Tessa Stuart of Rolling Stone investigated the role of land use and zoning regulations in the California housing crisis. According to Stuart, the state’s rapidly growing economy is partly to blame for the crisis. For example, in the past five years the city of San Jose has only built one dwelling for every five jobs created, and the demand for housing drives rents out of the reach of many Californians. Stuart concluded that zoning laws in many communities, which heavily restrict or even forbid construction of multi-family dwellings, is largely to blame, but also noted that local and state-wide attempts to reform zoning ordinances have met substantial resistance from single-family homeowners.
• In the Utah Law Review, Lars Noah of the Levin College of Law at the University of Florida argued that FDA could have mitigated the effects of the opioid crisis earlier than it did. Specifically, Noah noted that FDA could have ameliorated the effects of the opioid crisis by issuing more rigorous guidelines for primary care physicians in prescribing opioids. Over a decade ago, Congress explicitly granted FDA the power to impose restrictions on primary care prescriptions through the FDA Amendments Act of 2007, but FDA, according to Noah, has made only feeble attempts at exercising this ability.