Week in Review

IN THE NEWS

• In response to the coronavirus, President Donald J. Trump restricted travel to the United States from foreign nationals who have recently been in Europe. President Trump also announced an economic assistance package to support businesses and workers, stating that he will provide more than $50 billion in loans for those harmed by the outbreak. The U.S. Food and Drug Administration will postpone foreign inspections of regulated products until April. In addition, the Centers for Disease Control and Prevention and U.S. Department of State issued updated guidance formally advising all travelers to avoid cruise ships.
• The U.S. Senate voted 53-42 and the U.S. House of Representatives voted 231-180 to block the U.S. Department of Education’s rule limiting debt relief for students misled by schools in the loans process. Overturning Obama-era rules, the new rule would have eliminated group claims, set a three-year deadline to file a claim, and required proof that a school knowingly misled each individual. President Trump signaled that he may still veto the congressional block, stating that “the previous rules forced precipitous school closures that hurt students and taxpayers.” As a result of the Obama-era rules, Trump University closed after settling for $25 million.
• The House of Representatives voted 227-186 to approve a resolution, already approved by the Senate, that would require President Trump to obtain congressional approval before taking further military action against Iran. “With this strong, bipartisan joint resolution, we once again call on the President to listen to the will of Congress and the American people and advance a de-escalatory strategy now,” House Speaker Nancy Pelosi (D-Calif.) said. President Trump has previously expressed his opposition and is expected to veto the measure.
• The U.S. Supreme Court allowed the Trump Administration to continue enforcing its so-called Remain in Mexico policy, overturning a federal court order issued last week that had temporarily blocked the policy. Under the policy, non-Mexican asylum applicants who enter the United States at the nation’s southern border must wait in Mexico while their applications are processed. The Supreme Court’s brief order noted that Justice Sonya Sotomayor would have allowed the order blocking the policy to remain in place.
• The U.S. District Court for the Western District of Washington temporarily blocked the U.S. Department of Commerce’s rule to regulate 3D-printing blueprint for guns. The states suing the federal government claimed that the Department of Commerce had not followed the Administrative Procedure Act in updating the final rule. Judge Richard A. Jones stated, “The Court must acknowledge the grave reality that is likely to occur without injunctive relief.” Judge Jones cited national security and public safety concerns, such as the ability for terrorists or criminals to obtain guns through 3D-printing without the government’s knowledge.
• The U.S. Department of Agriculture’s internal watchdog agreed to investigate whether grants issued by the agency were improperly used to support a timber industry group’s anti-conservation lobbying efforts. A report by Alaska Public Media previously alleged that government money had funded the Alaska Forest Association’s efforts to obtain an exemption from a proposed federal rule that would restrict the construction of new logging access roads in the Tongass National Forest. U.S. Senator Debbie Stabenow (D-Mich.), ranking member of the Senate Committee on Agriculture, Nutrition, and Forestry, and U.S. Representative Raul M. Grijalva (D-Ariz.), chair of the House Natural Resources Committee, requested the investigation in a letter to the agency, writing that “it is critical that we ensure this taxpayer funded grant was properly awarded and used.”
• The American Civil Liberties Union (ACLU) filed a lawsuit against the U.S. Department of Homeland Security (DHS), U.S. Customs and Border Protection (CBP), and the Transportation Security Administration over the agencies’ use of facial recognition technology at airport customs checkpoints. The complaint reports that DHS failed to respond to Freedom of Information Act requests about agency facial technology use and asks that the U.S. District Court for the Southern District of New York compel DHS to respond to those requests. In a statement expressing concern for the security of data collected through facial recognition technology, ACLU Staff Attorney Ashley Gorski wrote that “the public urgently needs more information about how the government and airlines are using this information, what privacy protections exist, and the extent to which CBP’s and TSA’s use of the technology discriminates on the basis of race or other characteristics.”
• The National Aeronautics and Space Administration (NASA) issued a new sexual harassment reporting policy for organizations and institutions receiving NASA funding. Under the rule’s new terms, universities and other institutions receiving NASA funds will be obliged to report to the agency any accusations of sexual harassment or assault against project research leaders, leaving NASA free to reduce or rescind funding offers. Funding counterparts like the National Science Foundation also require reporting of harassment allegations.
• The Virginia General Assembly voted to decriminalize marijuana possession. The bipartisan-supported bill provides for a maximum civil penalty of $25 and prevents citations for possession from being noted on an individual’s criminal record. Virginia State Senator and bill sponsor Adam Ebbin (D-Alexandria) reportedly responded to the bill’s passage by saying that “the prohibition on marijuana has clearly failed, and impacts nearly 30,000 Virginians per year. It’s well past time that we stop doing damage to people’s employment prospects, educational opportunities, and parental rights.”

WHAT WE’RE READING THIS WEEK

• In an article published in the Columbia Law Review, Professor Herbert Hovenkamp of the University of Pennsylvania Law School highlighted the novelty of the U.S. Supreme Court’s Apple v. Pepper decision. Hovenkamp stated that Apple created a categorical rule that whoever pays money directly to a defendant should be counted as a direct purchaser and, therefore, eligible to collect damages. He noted that the Supreme Court’s Illinois Brick v. Illinois decision from forty years ago substantially narrowed who could be considered a direct purchaser by limiting it only to the first purchaser in line. Under Illinois Brick, anyone else was ineligible to collect damages. Hovenkamp supported the Apple decision for eliminating the “irrationalities” of the Illinois Brick decision.
• In a new report for the Center for American Progress, Andres Vinelli, Christian E. Weller, and Divya Vijay evaluated the domestic economic impact of COVID-19. Vinelli, Weller, and Vijay emphasized the limited utility of using economic consequences of the 2003 SARS outbreak as a model for 2020, noting the anticipated impact of coronavirus on supply chains and financial markets. Although they applauded the Federal Reserve Board for lowering interest rates, Vinelli, Weller, and Vijay concluded that Congress and the Trump Administration must implement economic stimulus policies to ease impacts on business and vulnerable groups.
• Well-established legal doctrines that require judges to defer to the decisions of administrative agencies have come under increasing pressure from critics who claim that, by deferring to agencies, judges abdicate their constitutional duty to interpret the law. In a forthcoming article for the Michigan Law Review, Professor Daniel E. Walters of Penn State Law argued that critics of judicial deference are internally inconsistent. Although they presume that eliminating deference will empower judges to combat regulatory overreach by administrative agencies, they often fail to grasp that the lack of deference would equally apply to instances of agency underregulation. The result, he suggested, is a deeply asymmetrical vision of administrative law—one that is systematically biased against government regulation.

FLASHBACK FRIDAY

• In a 2014 essay for The Regulatory Review, Jacqueline Best of the University of Ottawa described a shift in development organization and agency governance that reflects a willingness to admit organizational failure. In contrast with the “development success” model of the 1980s, Best argued, in the last 30 years organizations have shown at least cautious willingness to recognize geopolitical uncertainty and an associated risk of failure of organizational initiatives. Despite this shift, Best concluded, organizations and agencies must become less cautious and more transparent in recognizing and learning from failed ventures.