Week in Review

IN THE NEWS

• The U.S. Supreme Court agreed to hear a case on whether employers can opt out of providing contraceptives to their employees because of employers’ moral or religious beliefs. The appeal came following a decision from the U.S. Court of Appeals for the Third Circuit that blocked two rules from the Trump Administration allowing for moral or religious exemptions under the Affordable Care Act. Brigitte Amiri, an attorney for the American Civil Liberties Union, stated, “Everyone should have birth control coverage, regardless of where they work or where they go to school.”
• President Donald J. Trump announced his intention to expand the geographic scope of his travel ban. Upheld by the Supreme Court in 2018, the ban currently restricts immigration and temporary travel from Iran, Libya, Syria, Somalia, and Yemen. President Trump is reportedly considering extending restrictions to travelers from Belarus, Eritrea, Kyrgyzstan, Myanmar, Nigeria, Sudan, and Tanzania. Any expansion of the ban is likely to trigger immediate legal challenge.
• The U.S. Environmental Protection Agency and the U.S. Army Corp of Engineers removed streams, groundwater, and wetlands from the definition of “waters of the United States,” which will now allow companies to pour pesticides and fertilizers into these previously protected waterways. “I terminated one of the most ridiculous regulations of all: the last administration’s disastrous Waters of the United States rule,” President Donald Trump remarked. Professor Patrick Parenteau of Vermont Law School reportedly stated, “This is rolling back federal jurisdiction of the Clean Water Act further than it’s ever been before.”
• The U.S. Court of Appeals for the Ninth Circuit dismissed a case brought by young Americans against the federal government for its contribution to climate change. The plaintiffs asked the court to order the government to phase out fossil fuels. Judge Andrew D. Hurwitz wrote that the suit went beyond the judiciary’s constitutional power and stated that “the plaintiffs’ impressive case for redress must be presented to the political branches of government.” In dissent, Judge Josephine L. Staton said, “It is as if an asteroid were barreling toward Earth and the government decided to shut down our only defenses.”
• The U.S. Department of Transportation announced a new proposed rule that would make it more difficult to bring emotional support animals on airplanes and limit eligible animals to only trained dogs. In a statement, the Department indicated that the rule was intended to reduce “the likelihood that passengers wishing to travel with their pets on aircraft will be able to falsely claim their pets are service animals.” Sara Nelson, international president of the Association of Flight Attendants, applauded the rule, stating that “passengers claiming pets as emotional support animals has threatened the safety and health of passengers and crews in recent years.”
• The Supreme Court denied two motions from the U.S. House of Representatives and several states to fast-track Court review of the individual insurance requirement in the Affordable Care Act. In December 2019, the U.S. Court of Appeals for the Fifth Circuit held that the insurance requirement—often called the individual mandate—is unconstitutional because there is no penalty for failing to be insured. The Court’s decision to deny the motions means that the constitutionality of the ACA will not be decided before the 2020 federal election.
• The U.S. Department of Agriculture proposed a new rule that would change nutritional standards for school meals. Agriculture Secretary Sonny Perdue said the rule would respond to school district arguments that “more common-sense flexibility is needed to provide students nutritious and appetizing meals” and to prevent food waste. Colin Schwartz, deputy director of the Center for Science in the Public Interest, countered that the proposal would “create a huge loophole in school nutrition guidelines, paving the way for children to choose pizza, burgers, French fries, and other foods high in calories, saturated fat or sodium in place of balanced school meals every day.”
• California sued the Bureau of Land Management after the agency concluded that allowing fracking in eight California counties would not inflict undue harm on the environment. The complaint stated that fracking operations would imperil California’s legal obligation to reduce its greenhouse gas emissions by 40 percent in the next decade. California Attorney General Xavier Becerra said, “This unlawful half-baked proposal would hurt millions of Californians – we will fight to make sure it doesn’t move forward.”
• The Army Corp of Engineers withdrew an Obama-era proposed rule that would have clarified government policy concerning the use of reservoirs for domestic, municipal, and industrial water supply. President Trump announced the move at an American Farm Bureau Federation conference on Sunday, stating that the change would “allow states to manage their water resources based on their own needs and based on what their farmers and ranchers want.”
• The U.S. House Committee on Oversight and Reform found that the Environmental Protection Agency (EPA) significantly delayed implementing mandatory ethics procedures, allowing senior officials to work for months on issues where they had “extensive” conflicts of interest. In a letter to the agency, the Committee stated that “documents indicate that EPA allowed senior agency officials to avoid or delay completing required ethics forms and that EPA was missing forms entirely for some officials.” An EPA spokesperson reportedly denied the allegations, calling them “flat out false.”

WHAT WE’RE READING THIS WEEK

• Theories of the “unitary executive”—the idea that the President wields absolute authority to appoint, remove, and direct the actions of all executive branch officials—are historically unfounded, argued Daniel Birk of the Chicago-Kent College of Law in a recently released working paper. Proponents of the unitary executive claim historical support from the supposed powers of the British king at the time of the U.S. Constitution’s framing—but contrary to their assertions, Birk wrote, the king did not possess the power to appoint and remove all officials at will. The fact that some officials were insulated from royal control supports the notion that Congress can insulate agency personnel from presidential control in appropriate circumstances, Birk concluded.
• Regulation of housing production plays an important and complicated role in rising housing prices, argued Jenny Schuetz in a new report for the Brookings Institution. Schuetz noted that politicians often blame rising housing costs on either restrictive land use regulations or real estate developers who gentrify urban areas with little thought to displacement. The regulatory causes of high housing prices, however, are much more complex. Regulations governing development permitting and funding, Schuetz concluded, are particularly impactful in determining what housing development does and does not occur, and in costs of the finished products.
• In an op-ed for The New York Times, Professor Joan Williams of U.C. Hastings College of the Law considered whether the political backlash of adding the Equal Rights Amendment (ERA) to the U.S. Constitution might outweigh any concrete gains that the amendment may bring. Considering the political leanings of the Supreme Court, Williams noted that the Justices may choose to interpret the ERA narrowly. She argued that substantive legislation such as enacting the Pregnant Workers’ Fairness Act or strengthening the Fair Labor Standards Act could benefit women more than the ERA.

FLASHBACK FRIDAY

• In a 2017 essay for The Regulatory Review, Evan Marolf highlighted a study that showed the majority of Americans had purchased food produced locally within the past month. Marolf cited reasons why the local food movement had taken off, including environmental and health benefits, but he noted that federal regulations of local food production may present an obstacle to its widespread adoption.