Week in Review

IN THE NEWS

• Both houses of the Virginia General Assembly voted to ratify the Equal Rights Amendment (ERA)—a constitutional amendment that would extend equality of the law to both sexes—making Virginia the thirty-eighth state to do so. An amendment is incorporated into the U.S. Constitution once three-fourths of state legislatures—38 out of 50 states—ratify it. The ERA’s original deadline, however, expired in 1982, but the U.S. Senate and the U.S. House of Representatives introduced legislation to extend the deadline.
• The U.S. Department of Labor issued a new rule on the definition of joint employer status under the Fair Labor Standards Act. The rule provides a test for determining when an employee’s work simultaneously benefits two or more related businesses, making those businesses jointly responsible for paying correct wages and providing required benefits. Labor Secretary Eugene Scalia said the rule will further “President Trump’s successful, government-wide effort to address regulations that hinder the American economy and to promote economic growth.” But Rebecca Dixon, executive director of the National Employment Law Project, said the rule will make it “easier for corporations to cheat their workers and look the other way when workplace violations occur.”
• The U.S. Department of the Treasury issued two final rules restricting foreign investment in United States businesses and real estate. The rules will increase the authority of the Committee on Foreign Investment in the United States to stop transactions that threaten the national security. Treasury Secretary Steven Mnuchin said the rules will “strengthen our national security and modernize the investment review process” while simultaneously maintaining the national priority of investment in U.S. business.
• The U.S. Department of Justice petitioned the U.S. Supreme Court to lift a stay preventing the Trump Administration from implementing its public charge rule, which expands parameters through which the government may deny entry or permanent residency to immigrants who have received public assistance or may receive it in the future. In the application requesting to lift the stay, U.S. Solicitor General Noel Francisco argued that the public charge rule “easily qualifies as an appropriate exercise of the discretion that Congress has vested in the agency to determine which aliens are likely, in its opinion, to become public charges.”
• The Natural Resources Defense Council obtained emails revealing that officials at the Justice Department assisted oil and gas companies in fighting climate change lawsuits. Justin Levitt, a professor at Loyola Law School in Los Angeles, reportedly stated, “If these meetings discussed the logistics of a DOJ amicus filing but not the substance of what the DOJ would file, it may be reason to raise an eyebrow but not a red flag.”
• The U.S. District Court for the Southern District of California rejected a challenge to the U.S. government’s continued practice of separating certain migrant parents and children. Noting that “the number of family separations compared to the number of family units crossing the border appears to be less than one percent,” U.S. District Judge Dana Sabraw found that the government acted appropriately by only separating parents who posed a danger to their children. But he also ruled that any disputes about parental status must be resolved through DNA tests, which the government had previously objected to due to “operational concerns.”
• The California Fourth District Court of Appeal upheld applying a state sanctuary law to charter cities that barred local law enforcement from working with federal immigration agents. Judge Richard Fybel wrote that the law “is constitutional as applied to charter cities because it addresses matters of statewide concern—including public safety and health, effective policing, and protection of constitutional rights.” Huntington Beach City Attorney Michael Gates reportedly stated, “The state will eventually literally be able to dictate every aspect of local governance, which would render local governance pointless.”
• The Wisconsin Court of Appeals blocked a court order instructing the Wisconsin Elections Commission to purge more than 200,000 voters from the state’s voter rolls for failing to respond to letters inquiring about possible address changes. The Appeals Court also stayed a trial court ruling, issued the previous day, that found the Commission’s three Democratic members in contempt of court for refusing to remove the voters. Wisconsin Governor Tony Evers (D), who won the state by less than 30,000 votes, has called the purge “another attempt at overriding the will of the people and stifling the democratic process.”
• Environmental groups sued the U.S. Bureau of Land Management over its plans to open more than one million acres of public land in California to oil drilling and fracking. “Trump’s illegal, deeply unjust fracking plan would be a disaster for Central Valley communities, as well as our climate, wildlife and water,” said Clare Lakewood, senior attorney at the Center for Biological Diversity. The Bureau reportedly stated that it “will be reviewing” the lawsuit.

WHAT WE’RE READING THIS WEEK

• In an article for the New York University Law Review, Professor Amanda Frost of American University Washington College of Law defended the ability of district courts to issue nationwide injunctions—court orders that bar the government from enforcing federal laws against anyone, not just the plaintiff. Although nationwide injunctions come with significant costs, Frost argued, they also sometimes provide the only means of preventing harm to the plaintiff and thousands of other similarly-situated individuals. Moreover, she argued, nothing in the U.S. Constitution prevents the practice—and it may even be necessary to allow “federal courts to play their essential role as a check on the political branches.”
• Ethical algorithm design and systemic algorithm auditing should drive regulation of machine learning technologies, argued Michael Kearns and Aaron Roth of the University of Pennsylvania in a new report for the Brookings Institution. As use of algorithms plays an increasing role in both public and private decision-making processes, Kearns and Roth wrote, algorithm regulators must identify potential algorithm biases and pitfalls and deploy products that avoid these flaws. Kearns and Roth concluded that, although regulators’ responses to biases have thus far been reactive, technology is available to permit ethical design before problems emerge rather than after.
• In a newly released working paper, Professor Cass Sunstein of Harvard Law School described how the administrative state has become a cost-benefit state. He proposed that regulators should focus on human welfare, rather than relying on imperfect proxies, to better grasp the cost-benefits of a proposal. Currently, there is a knowledge gap that regulators must face when accurately determining human welfare, but Sunstein stated that this knowledge gap does not mean that regulators should disregard welfare altogether.

FLASHBACK FRIDAY

• Writing for The Regulatory Review in 2016, Professor Joshua A. Douglas of the University of Kentucky College of Law argued that then-current efforts by state officials to expand voter registration offer important lessons for future reforms. Successful voter registration efforts have often been spearheaded by local-level officials, Douglas noted, suggesting the importance of choosing elections officials who understand the importance of the constitutional right to vote. And technology presents a major opportunity to expand the franchise, by making voting “easier, more streamlined, and more accessible to more people,” Douglas argued.