Week in Review

IN THE NEWS

• The U.S. Department of Agriculture approved a new rule that will cut three-quarters of a million people from receiving food stamps by tightening work requirements. Secretary of Agriculture Sonny Perdue stated that “We need to encourage people by giving them a helping hand but not allowing it to become an indefinitely giving hand.” U.S. Representative Marcia L. Fudge (D-Ohio) said that the agency has demonized those who use food stamps “as lazy and undeserving.”
• The U.S. Department of Homeland Security (DHS) dropped plans to amend existing regulations to use facial recognition software on all travelers arriving or departing from the United States. Calling the policy “an outrageous invasion of privacy,” Senator Edward Markey (D-Mass.) had stated that he would introduce “legislation to stop this intrusive surveillance program.” A spokesperson for DHS reportedly stated that “the best course of action is to continue to allow U.S. citizens to voluntarily participate.”
• The U.S. Environmental Protection Agency proposed a new rule intended to ensure that disputes over permits issued by the agency are resolved more quickly. Under the proposed rule, unless the parties to a permit dispute can agree within 30 days on a process to resolve the dispute, the permit would automatically become final and subject to judicial review. The proposed rule would also no longer allow third parties to intervene in disputes by filing briefs or allow the government to review permits on its own initiative.
• By a vote of 70-15, the U.S. Senate confirmed Dan Brouillette as U.S. Secretary of Energy. Brouillette served as deputy secretary under Rick Perry, who resigned in October following allegations of his involvement in improper conversations between the Trump Administration and Ukrainian officials.
• The U.S. Department of Health and Human Services (HHS) announced that it will provide free access to the HIV prevention drug PrEP for people without prescription drug insurance coverage. HHS Secretary Alex Azar called the initiative “a historic expansion of access to HIV prevention medication and a major step forward in President Trump’s plan to end the HIV epidemic in America.” To qualify, individuals must test negative for HIV, have a valid prescription, and lack prescription drug coverage.
• The U.S. Court of Appeals for the D.C. Circuit upheld a district court decision to temporarily block scheduled federal executions. In July, Attorney General William Barr announced that the U.S. Department of Justice would resume enforcement of capital sentences after a nearly twenty year moratorium, but District Judge Tanya Chutkan found that the protocol “very likely exceeds” the government’s authority. The U.S. Supreme Court will now review the Attorney General’s request to overrule the temporary stay.
• Four national groups representing hospitals and health systems sued HHS for its rule requiring hospitals to publicly disclose the prices they negotiate with insurers for health care services. “Instead of giving patients relevant information about costs, this rule will lead to widespread confusion and even more consolidation in the commercial health insurance industry,” American Hospital Association president and CEO Rick Pollack said. A spokesperson for HHS reportedly stated that “hospitals should be ashamed that they aren’t willing to provide American patients the cost of a service before they purchase it.”
• The House Subcommittee on Economic and Consumer Policy held a hearing on the federal government’s response to flavored vaping products. The subcommittee questioned Mitch Zeller, director of the U.S. Food and Drug Administration’s (FDA) Center for Tobacco Products, on the Trump Administration’s commitment to a ban. Subcommittee chair Raja Krishnamoorthi (D-Ill.) noted that, following President Trump’s promise to ban flavored products, FDA issued a policy guidance document on the subject but—unusually—submitted it straight to the White House and failed to make it public. Although Zeller acknowledged sending guidance to the White House, he said that discussions related to a potential ban were ongoing and therefore that he could not “get into the substance of what was in that document.”
• The European Court of Justice—the European Union’s highest court—upheld a ban on semiautomatic guns passed in response to terrorist attacks and rejected a challenge from the Czech Republic. The Czech government had argued that “no terrorist attack has been committed in EU territory in the last 10 years using such lawfully held weapons.” The court, however, held that the safety of individuals outweighed gun owners’ property rights.

WHAT WE’RE READING THIS WEEK

• In an article published in the Duke Law Journal, Carolyn Kousky and Sarah E. Light of the Wharton School at the University of Pennsylvania posited that policymakers could insure nature to preserve ecosystems from climatological destruction. They explained that insurance can shape behavior by providing a financial incentive to protect property. This principle could help protect natural ecosystems such as coral reefs, forests, and wetlands by constructing large insurance programs centered on conservation and restoration, they argued.
• In a forthcoming article for the California Law Review, Yaron Nili of the University of Wisconsin Law School and Cathy Hwang of the University of Utah S.J. Quinney College of Law argue that “shadow” corporate governance documents—non-charter, non-bylaw policies and procedures—play an important and often overlooked role in influencing corporate behavior. Although corporate governance debates typically involve reforms to corporate charters and bylaws, interviews conducted by Nili and Hwang suggest that other documents such as environmental or ethical policies significantly affect the choices of key decision-makers. Shadow governance thus presents “a new field of battle for those who wish to influence corporate behavior,” Nili and Hwang argued.
• In a new Brookings Institution report, Rachel Augustine Potter of the University of Virginia argued that congressional oversight of federal agencies is more extensive than often thought. Members of Congress often participate in the rulemaking process by writing letters to agency heads or submitting comments during the formal rulemaking process, Potter wrote. Following a review of members’ comments to the U.S. Environmental Protection Agency on 35 rules proposed between 2007 and 2017, Potter concluded that this form of oversight is heavily driven by member ideology.

FLASHBACK FRIDAY

• In a 2018 essay for The Regulatory Review, Robert J. Spitzer of the State University of New York College at Cortland Department of Political Science argued that effective gun regulation is compatible with gun rights. Even though history shows that licensing and regulation are “effective strategies in keeping guns out of the hands of those who should not have them,” pro-gun rights groups have tirelessly campaigned against new gun laws, Spitzer wrote. Such strategies are counterproductive, Spitzer argued, since “ineffective or impotent regulation only undermines the integrity of law-abiding gun dealers and owners.”