Week in Review

IN THE NEWS

• President Donald J. Trump appointed Vice President Mike Pence to head the federal government’s responses to the coronavirus outbreak. President Trump stated, “Because of all we’ve done, the risk to the American people remains very low,” including preventing non-citizens from coming into the United States from China, screening people from infected areas, and quarantining those who show symptoms. Representative Alexandria Ocasio-Cortez (D-N.Y.) criticized the appointment of Vice President Pence, stating that “he is not qualified nor positioned in any way to protect our public health.”
• The U.S. Court of Appeals for the Ninth Circuit lifted a court order blocking a U.S. Department of Health and Human Services (HHS) rule that prohibits recipients of Title X funds from referring women for abortions. The court rejected the plaintiffs’ argument that HHS violated the procedural requirements governing agency rulemakings, finding that the agency provided a reasoned explanation for its decision and adequately considered public comments on the rule. “Despite today’s ruling, the facts remain the same—the Trump regulations are unlawful and harmful and clearly put politics over public health,” Julie Rabinovitz, president of Essential Access Health, said in a statement.
• The U.S. Supreme Court lifted the final stay on the Trump Administration’s public charge rule, meaning the rule is now enforceable nationwide. This rule allows government officials to deny permanent legal status to immigrants deemed likely to require future public assistance. The final stay was in response to a lawsuit brought by Illinois’s Cook County; the county’s state’s attorney Kimberly Foxx responded to the Court’s decision by stating that her office “is unwavering in our commitment to oppose discrimination and stand up for immigrant families in Cook County.”
• The Supreme Court will decide whether foster care agencies must place children with same-sex couples, regardless of the agency’s religious beliefs. The U.S. Court of Appeals for the Third Circuit agreed with Philadelphia officials that preventing same-sex couples from fostering would violate the city’s nondiscrimination policy. “The City has acted only to enforce its non-discrimination policy in the face of what it considers a clear violation,” wrote Judge Thomas Ambro. Sharonell Fulton, a foster mother for Catholic Social Services, reportedly said, “I have never known vindictive religious discrimination like this, and I feel the fresh sting of bias watching my faith publicly derived by Philadelphia’s politicians.”
• The Supreme Court declined to consider a case seeking to overturn the Court’s prior ruling in National Cable and Telecommunications Association v. Brand X Internet Services, which held that courts must defer to an agency’s reasonable interpretation of an ambiguous law even if an existing court decision has already interpreted the law contrary to the agency’s interpretation. But Justice Clarence Thomas, who authored Brand X, dissented. “It is never too late to surrender former views to a better considered position,” he wrote, going on to argue that the decision “lays bare the flaws of our entire executive-deference jurisprudence.”
• The National Labor Relations Board finalized a rule that sets new limits on when federal labor law applies to the relationship between businesses and employees who work for franchisees or other third parties. The rule stipulates that businesses must exert “substantial direct and immediate control” over the terms and conditions of employment at a third party business in order to be considered a “joint employer” subject to labor law challenges or collective bargaining rules. Opposing the rule, Celine McNicholas and Heidi Shierholz of the Economic Policy Institute argued that the change “enables firms to avoid responsibility and liability” and will create “serious adverse consequences for working people.”
• The U.S. Court of Appeals for the Second Circuit reversed from a prior decision and will allow the U.S. Department of Justice to withhold federal funding from sanctuary cities. Judge Reena Raggi argued that the district court erred when ruling that withholding funds was unconstitutional commandeering because “states cannot pursue policies that undermine federal laws.” New Jersey Attorney General Gurbir Grewal reportedly denounced the ruling by saying, “It’s unfortunate that the federal government has decided to weaponize the federal grant funding process in order to carry out the president’s anti-immigrant agenda.”
• The U.S. Environmental Protection Agency (EPA) proposed a plan to begin regulating PFAS, cancer-linked “forever chemicals” found in many cities’ drinking water. EPA Administrator Andrew Wheeler said that “under President Trump’s leadership, EPA is following through on its commitment” to implement an agency-wide PFAS action plan. Melanie Benesh, legislative attorney for the Environmental Working Group, urged states to continue to implement PFAS regulations, saying that “it will be years—if ever—before a final drinking water standard is set.” Environmental Working Group also drew public attention to a second EPA proposal, published one day later, that would opt not to hold chemical manufacturers financially accountable for chemical contamination at Superfund sites.
• In response to a leaked U.S. Customs and Border Protection (CBP) memo indicating that bus companies do not have to allow CBP agents to conduct on-board immigration document checks, Greyhound Bus Lines released a statement to news outlets reportedly saying that they will no longer allow CBP agents to board their buses without a warrant. This represents a change of policy for Greyhound, which previously stated that, though the company objected to the practice, they were obliged to allow CBP agents to board. The company has faced extensive criticism from the American Civil Liberties Union and others for failing to challenge the practice of warrantless bus searches.

WHAT WE’RE READING THIS WEEK

• Professors Cary Coglianese of the University of Pennsylvania Law School and Shana Starobin of Bowdoin College used social science frameworks—including those from political science, economics, psychology, and sociology—to identify how human behavior created today’s environmental problems. Some of the major problems, according to Coglianese and Starobin’s recently released working paper, include power asymmetries, externalities, and tragedy of the commons. Recognizing the behavioral patterns that caused these problems, they noted, is critical to finding their solutions.
• In a new working paper, Jonathan S. Masur and Eric A. Posner of the University of Chicago Law School argued that cost-benefit analysis poses a barrier to the Trump Administration’s deregulatory agenda. Because many of the Obama-era regulations targeted by the Trump Administration are supported by plausible cost-benefit analysis, Masur and Posner argued, the President has often pursued deregulation by interpreting statutes to avoid cost-benefit analysis entirely. This approach, they suggested, has exposed new fissures in administrative law by pitting the well-established rule that courts should defer to agency interpretations of the law against current trends favoring regulation by cost-benefit analysis.
• What questions should policymakers ask before implementing AI algorithmic law enforcement solutions? In a new report for the Brookings Institution, Rashawn Ray wrote that although algorithm technology and detection of algorithmic bias are in a state of perpetual flux, policymakers wanting to balance transparency, privacy, and regulatory goals must ask the right questions to identify problems before implementation. Ray recommended that policymakers ask questions about community input, safeguards against misuse, bias, consent, and privacy before taking any steps toward algorithm implementation.

FLASHBACK FRIDAY

• In a 2018 essay for The Regulatory Review, Natalie Salmanowitz, then a student at Harvard Law School, and Harvard Law professor Holger Spamann argued that the so-called Chevron doctrine—which requires courts to defer to an agency’s reasonable interpretation of an ambiguous statute it is charged with enforcing—casts a long shadow over the Supreme Court’s jurisprudence. Contrary to a well-known study, which suggested that the doctrine is relatively rarely invoked, Salmanowitz and Spamann found that the Court applied Chevron in about 80 percent of applicable cases, suggesting that “it is not a precedent that the Supreme Court consistently ignores or overlooks.”