Week in Review

IN THE NEWS

• The U.S. Supreme Court lifted a court order blocking President Donald J. Trump’s so-called public charge rule, which allows government officials to deny permanent legal status to immigrants deemed likely to require future public assistance. Although the Court did not provide reasons for its decision, Justice Neil Gorsuch argued in a concurring opinion that the increasingly common practice of district court judges blocking federal rules is “patently unworkable, sowing chaos for litigants, the government, courts, and all those affected by these conflicting decisions.” California Governor Gavin Newsom (D) criticized the decision, calling it “devastating” for low-income immigrant families.
• The World Health Organization (WHO) declared the outbreak of coronavirus from Wuhan Province in China a Public Health Emergency of International Concern (PHEIC). When a PHEIC is declared, WHO requires a coordinated international response—including all 196 countries under the International Health Regulations—to detect and report events related to coronavirus immediately. This is only the fifth PHEIC to have been declared, with past PHEICs including H1N1, polio, Ebola, and zika virus.
• Washington State Attorney General Bob Ferguson is leading a 21-state coalition challenging new regulations governing export of programs to produce 3D-printed guns. The regulations will shift control of gun exports from the U.S. Department of State to the U.S. Department of Commerce, which has looser export licensing rules. This change will allow greater export of United States-made small handguns, but Ferguson and his counterparts are particularly concerned about the safety repercussions of a potential increase in the digital sale of 3D weapon design files.
• The U.S. House of Representatives passed a bill that would make significant changes to the Fair Credit Reporting Act. The bill packages together several proposed changes to credit reporting law, including new procedures for challenging negative credit report entries, restrictions on the use of medical and student debt in calculating credit scores, and a proposed ban on the use of credit scores in making employment decisions. The bill faces opposition from Republicans and industry leaders, fueling speculation that it may not survive the U.S. Senate.
• The U.S. Department of Justice filed a lawsuit challenging a California state law banning private prisons. The Justice Department asserts that the federal government has the ultimate authority as to whether to operate contracted prison facilities, thus preempting state law on the matter. The GEO Group, a private detention company operating seven private prison facilities in California, sued the state in December over the new law, which prevents renewal of private prison contracts.
• The U.S. Court of Appeals for the Fifth Circuit voted 8-6 to forgo reconsideration of its recent ruling striking down the Patient Protection and Affordable Care Act’s requirement that every individual purchase health insurance as unconstitutional. Earlier this month, the Supreme Court rejected a request by the House of Representatives and a coalition of states to expedite its review of the case, likely ensuring that the expected appeal to the Supreme Court will not be heard this term.
• The U.S. Court of Appeals for the Seventh Circuit ruled against the Menominee Indian Tribe of Wisconsin in its suit against the U.S. Environmental Protection Agency (EPA) to halt mining operations that impeded the Menominee Tribe’s riverboat tourism business. The Menominee Tribe argued that a waterway near the mining site constituted a navigable waterway under the Clean Water Act. Judge William Griesbach, however, wrote that under the Administrative Procedure Act, the judiciary could only review final agency actions, and that EPA’s decision not to exercise its permitting authority was neither a final agency action nor reviewable by a court.
• The California First District Court of Appeal ordered the California Department of Justice to release all records related to police misconduct. The Department argued that disclosure would consume agency resources as it would involve “potentially millions of records.” But Judge Richard Ulmer wrote that the California legislature passed SB 1421, which required police misconduct disclosure, “despite its awareness that the Department’s compliance would entail significant expense.”
• The European Parliament voted 621-49 to ratify the “Brexit” agreement governing Britain’s withdrawal from the European Union. After the vote, European Parliament President David Sassoli stated that “we will all have to work hard to build a new relationship,” adding that “it will not be simple.” The agreement goes into effect today.

WHAT WE’RE READING THIS WEEK

• When designing new administrative agencies, policymakers face a crucial choice: is it better to vest the agency’s authority in a single director or in a commission with multiple members? In a recent article for the Administrative Law Review, Ganesh Sitaraman of Vanderbilt Law School and Ariel Dobkin of WilmerHale argued that single-director agencies enjoy distinct advantages over multi-member commissions, including improved efficiency and clearer lines of accountability. Although multi-member commissions offer some benefits, such as the possibility of integrating opposing points of view, Sitaraman and Dobkin argued that these benefits are overstated and ultimately outweighed by the advantages of single-director agencies.
• In a new comment in the University of Pennsylvania Law Review, Penn Law student Andrew Shi argued that regulation of compound lethal drugs used in executions falls within U.S. Food and Drug Administration (FDA) jurisdiction and that failure to regulate these drugs should be subject to judicial review. Despite a history of botched executions traceable to the compound lethal drugs used, FDA fails to regulate these drugs, wrote Shi. Although courts generally consider agencies’ failure to act as an exercise of enforcement discretion and consequently refuse to review that inaction, Shi concluded that application of a new “discrete look” standard would allow courts to respond to suits filed by death row inmates challenging non-regulation of legal drugs.
• The U.S. Department of Housing and Urban Development (HUD) is systemically proposing rules that would roll back protections intended to ensure vulnerable populations’ access to housing, wrote Areeba Haider in a new article published by the Center for American Progress. Haider noted three specific HUD proposals issued over the last 9 months, one targeting housing rules for mixed-immigration status families, another changing the standard for proving disparate impact in housing discrimination, and another relaxing requirements that municipalities receiving HUD funding provide documentation of desegregation efforts. Contrary to HUD assertions, Haider concluded that these proposals would further entrench current housing segregation and increase discrimination.

FLASHBACK FRIDAY

• In a 2017 essay for The Regulatory Review, Kent Barnett of the University of Georgia School of Law argued that formal rulemaking remains an important tool of the administrative state. Formal rulemaking, which involves a hearing before an administrative judge and requires decisions to be made entirely on the basis of a formal record, has largely been cast as too unwieldy and time consuming to be of use to policy-makers, wrote Barnett. Barnett concluded that the potential costs of formal rulemaking are greatly exaggerated and that when regulation is significant, fact-intensive, has high impact on particular parties, and is prone to capture by specialized interests, formal rulemaking may be policy-makers’ best tool.