Week in Review

IN THE NEWS

• President Donald J. Trump signed into law the Preventing Animal Cruelty and Torture Act. Under the law, acts of animal cruelty are a federal crime punishable with fines and up to seven years in prison.  “It is important that we combat these heinous and sadistic acts of cruelty, which are totally unacceptable in a civilized society,” said President Trump at a signing ceremony.
• Massachusetts Governor Charlie Baker (R) signed into law a restriction on the sale of flavored vaping products and menthol cigarettes. This law, the most aggressive targeting the sale of flavored vaping products passed to date, prohibits the sale of flavored products outside licensed smoking bars and restricts the sale of all vaping products with nicotine content over 35 milligrams per milliliter to licensed smoking bars and adults-only tobacco shops. State officials removed all vaping products from store shelves in September in response to the declaration of a state-wide public health emergency, giving the Massachusetts legislature time to pass this permanent law.
• The U.S. Supreme Court temporarily blocked a lower court’s order that an accounting firm release President Trump’s tax records. The Supreme Court gave both sides until December 5th to file briefs. A final decision, likely to be issued no later than June, could have important consequences for the separation of powers between the executive and the judiciary.
• The U.S. Supreme Court instructed the U.S. Court of Appeals for the Ninth Circuit to reassess whether Alaska’s $500 statutory limit on individual political campaign contributions violates the First Amendment. In its unanimous opinion, the Court noted that Alaska’s law shares some “danger signs” with a Vermont law previously found to be unconstitutional, such as being “substantially lower” than contribution limits in other states and failing to adjust for inflation. But Justice Ruth Bader Ginsberg wrote separately to emphasize that Alaska’s law also “does not exhibit certain features found troublesome in Vermont’s law.”
• U.S. Supreme Court Justice Brett Kavanaugh issued a statement indicating that he would be willing to revive the long-defunct “nondelegation” doctrine, which holds that Congress cannot delegate significant policy-making authority to administrative agencies. Last term, the Supreme Court voted 5-3 against reviving the nondelegation doctrine in Gundy v. United States—but Justice Samuel Alito joined the majority opinion with the proviso that “if a majority of this Court were willing to reconsider the approach we have taken for the past 84 years, I would support that effort.” With the support of Justice Kavanaugh—who did not participate in the Gundy case—and Justice Alito, a majority of the Court would appear to be in favor of limiting Congress’s ability to delegate major policy decisions.
• The U.S. District Court for the District of Columbia rejected the Trump Administration’s argument that senior officials working in the White House are immune from congressional subpoenas. Judge Kentanji Brown Jackson wrote that “stated simply, the primary takeaway from the past 250 years of recorded American history is that Presidents are not kings.” She added that “in this land of liberty, it is indisputable that current and former employees of the White House work for the People of the United States.” Observers expect the White House to appeal this decision.
• The U.S. District Court for the District of Columbia ruled that President Barack Obama’s decision to expand the Cascade-Siskiyou National Monument in Oregon was unlawful. Noting that the expansion included land set aside by Congress “for permanent forest production,” U.S. District Judge Richard Leon wrote that the intent of Congress “cannot be rescinded by Presidential Proclamation.” Judge Leon’s decision contradicts an earlier ruling by a federal judge in Oregon that upheld the expansion.
• The United Nations Environmental Program issued a new report on the gap between current greenhouse gas emissions rates and emissions targets. Relying on emissions standards outlined in the Paris Agreement, the 2019 report is the first to calculate the cuts required to meet emissions targets. Given current emissions rates, nations would have to commit to decreasing their emissions three to five times more than they currently have committed if the world is to meet its targets by 2030. Although the Trump Administration recently announced its withdrawal from the Paris Agreement, United States lawmakers took note of the report. U.S. Representative Mike Quigley (D-Ill.), for example, said that “the simple truth is that we as a global society need to take urgent and transformational action in the next decade to avoid environmental changes on a scale that will impact the lives and livelihoods of billions.”
• The Canadian government’s Competition Bureau proposed a new policy to increase competition between mobile wireless service providers. The Bureau determined that the Canadian wireless market continues to be dominated by Bell, Rogers, and Telus, with small regional providers producing a disruptive effect on consumer prices in a handful of local markets. Regional disruption, which results in customer savings of up to 40 percent, must be encouraged, the Bureau stated. The policy recommended that the Canadian Radio-Television and Telecommunications Commission require the big three providers to sell network access temporarily to regional wireless startups that commit to expanding their own infrastructure.

WHAT WE’RE READING THIS WEEK

• New data disclosed to Congress by leading U.S. technology companies suggest that very few people pursue arbitration claims, executive editor David Dayen of The American Prospect argued. For example, between 2014 and 2019 only three Google contractors and eleven Google employees initiated arbitration proceedings against the company. Critics of contractual arbitration clauses argue that arbitration is inherently corporate-friendly and discourages claims, thus creating “a legal means for businesses to sidestep the law,” Dayen wrote. The new statistics confirm these fears, according to Dayen.
• A policy analysis by Gregg Gelzinis of the Center for American Progress and Graham Steele of the Stanford Graduate School of Business outlined the threat climate change poses to the financial industry. In calling upon financial regulators to join the fight against climate change, Gelzinis and Steele suggested that the U.S. Securities and Exchange Commission require public companies to disclose information on the risks climate change poses to their business and that the Federal Reserve Board require financial firms to consider climate risk in their capital planning process.
• Xiaoyang Long of the University of Wisconsin and Javad Nasiry of Hong Kong University of Science & Technology identified conditions in the fashion industry that exacerbate its environmental impact. After assessing the impact of different policies on the so-called “fast fashion model,” they found that waste disposal regulations were effective in reducing a company’s leftover inventory but had unintended consequences of lowering clothes’ overall product quality.

FLASHBACK FRIDAY

• In a November 2017 essay for The Regulatory Review, Kathryn Kovacs of Rutgers Law School argued that transparency and accountability in the rulemaking process can only be achieved through a bipartisan approach. Increased congressional and presidential involvement are unnecessarily impeding rulemaking, Kovacs suggested. Kovacs concluded that agencies should get back to basics by returning to the clear and simple rulemaking requirements laid out in the Administrative Procedure Act.