Week in Review

IN THE NEWS

• President Donald J. Trump signed an executive order directing the heads of federal agencies to lessen or remove regulations, either temporarily or permanently, that may inhibit economic recovery from the coronavirus pandemic. The executive order followed recent deregulation efforts by agencies and the Trump Administration in response to the pandemic. U.S. Senator Ted Cruz (R-Texas), in support of the executive order, tweeted that the government should repeal costly regulations that have accumulated over the past decade. Critics of the executive order, however, warned that deregulation will remove important protections for workers, consumers, and the environment. 
• The U.S. House of Representatives passed a resolution authorizing members to vote by proxy and conduct remote committee meetings during a public health emergency, such as the coronavirus pandemic. This is the first time the U.S. Congress has changed Rule III, which requires in-person voting, and it is the most significant change to House voting procedures since 1973. The resolution allows a member to vote as a proxy for up to 10 other members of the House, enables committees to conduct official remote proceedings, and authorizes the Committee on House Administration to study technologies for remote voting. The House drafted the resolution because several House members tested positive for coronavirus or had to self-quarantine, hindering the ability of the House to pass legislation. 
• The U.S. Department of Health and Human Services (HHS) announced a private industry partnership led by Phlow, a new pharmaceutical company, aimed at securing a national supply of essential medicines for the COVID-19 response. The $354 million four-year contract, which can be extended to $812 million over 10 years, will aim to create U.S. based supply chains for drug manufacturing. HHS Secretary Alex Azar praised the Trump Administration for seeking to rebuild domestic capacity for medical supply chains while creating jobs. Critics of the contract, however, questioned why HHS granted such a large award to a new company without securing sufficient guarantees.  
• President Trump notified congressional leaders in a letter that he would be removing U.S. Department of State Inspector General Steve Linick effective 30 days from May 15 because the President no longer had the “fullest confidence” in Linick. President Trump later told reporters that he fired Linick after a request from Secretary of State Mike Pompeo. After learning that Linick’s office had opened an investigation into Pompeo, U.S. Representative and chair of the House Committee on Foreign Affairs Eliot L. Engel (D-N.Y.) reportedly called the removal an “outrageous act.” Critics of Linick’s removal pointed to the President’s pattern of removing inspectors general for suspicious or retaliatory reasons.
• U.S. Secretary of Agriculture Sonny Perdue announced the details of a Coronavirus Food Assistance Program, which will devote $16 billion in direct payments to assist farmers and ranchers affected by the pandemic. Producers of agricultural commodities who have suffered a price decline loss of 5 percent or greater will be eligible for direct support capped at $250,000, with exceptions. The U.S. Department of Agriculture spokesperson underscored the need for flexibility in building the new program. Some policy analysts, on the other hand, have questioned the authority of the Department to create a farm safety net program without additional input from Congress. 
• The U.S. Citizenship and Immigration Services requested a $1.2 billion cash infusion from Congress and an approval of a 10 percent surcharge to application fees because the agency may become insolvent this summer. The agency, which is funded primarily by application fees, reportedly experienced a decline in revenue after it closed offices and suspended some functions during the coronavirus pandemic. Critics of the agency, however, argued that stringent policies designed to dissuade applicants and increase employees on the payroll left the agency unprepared for the current economic shock. Before the coronavirus pandemic, the U.S. Citizenship and Immigration Services  proposed similar increases to immigration and naturalization filing fees to reduce deficits. 
• The Occupational Safety and Health Administration (OSHA) issued enforcement memoranda requiring more employers to disclose COVID-19 cases and resuming in-person workplace safety inspections in places where COVID-19 case numbers have decreased. The disclosure memo offered guidance to compliance safety and health officers that employers are responsible for reporting confirmed COVID-19 cases if the disease was contracted at work and caused missed work time. The inspection memo also instructs inspectors in areas where “community spread of COVID-19 has significantly decreased” to return to pre-crisis policies for on-site inspections, while still prioritizing inspections related to COVID-19. OSHA released its guidance one day after the American Federation of Labor and Congress of Industrial Organizations filed a lawsuit in federal court to compel the agency to issue an emergency temporary standard requiring employers to protect employees from exposure to the coronavirus. 
• The U.S. Department of Labor issued two rules affecting overtime pay for retail employees and employees who work flexible hours. The first rule exempts retail establishments from overtime compensation requirements under the Fair Labor Standards Act if their employees receive more than half their pay on commissions. Although the Labor Department previously maintained lists of presumed retail and non-retail industries, the new rule withdrew both lists, encouraging all industries to review whether their practices fall under the general standard of having a “retail concept.” The second rule seeks to clarify that employers are allowed to give bonuses and commission pay to employees paid on a fluctuating work week basis. U.S. Secretary of Labor Eugene Scalia explained that the new rule is intended to grant employers flexibility to stagger start and end times as they promote social distancing in the workplace.  
• The Vermont Public Utility Commission approved a new tariff regime allowing utility companies to lease battery systems to customers who wish to store electricity for purposes of backup power. Colchester-based utility company Green Mountain Power partnered with Tesla to develop and propose the lease tariff, in which the utility can dispatch the batteries in aggregate as a “virtual power plant.” The Commission accepted the proposed leasing rates after finding that a previously approved pilot project increased consumer interest in battery storage and reduced power demand on the grid during peak times. Olivia Campbell Anderson, executive director of Renewable Energy Vermont, reportedly stated that under the new policy, “electric battery storage is even more affordable for Vermonters.”

WHAT WE’RE READING THIS WEEK

• In a recent paper, Lawrence O. Gostin, a professor at Georgetown University Law Center, and Lindsay F. Wiley, director of the Health Law and Policy Program at American University Washington College of Law, examined the legality of state governments’ public health powers during the coronavirus pandemic. Gostin and Wiley found that states and localities have the authority to close businesses, limit public gatherings, and issue curfews to protect public health if the restrictions do not target a specific group. Although state orders requiring incoming travelers to quarantine do not discriminate against nonresidents, Gostin and Wiley warned that these measures may interfere with federal commerce powers. They also found that federal power to close business operations is limited to preventing the spread of disease between states, but presidential authority over travel restrictions between states is unclear. Gostin and Wiley claimed that the power to issue long-term, compulsory stay-at-home orders has not been previously assessed by the courts, but the legality will likely depend on whether the restrictions imposed are proportional to the public health threat.
• Two related publications explored the effectiveness of the notice and public comment process in federal rulemaking. In a new report, the Government Accountability Office found that the notice and comment process does lead to substantive changes to final rules. Relying on surveys of individuals in federal agency programming offices, the report found that the extent to which a comment is substantive is an extremely important factor for agency review. In a separate study, Steven Balla, professor of political science at George Washington University, and several coauthors analyzed the effectiveness of mass comment campaigns. Balla and his coauthors argued that, although comment campaigns are becoming more common, they are less frequently cited in agency responses and lead to fewer changes in final regulation than traditional comments. 
• In a recent working paper, Emmeke Barbara Kooistra, professor of law at the University of Amsterdam School of Law, and her coauthors assessed compliance with lockdown and social distancing measures related to COVID-19. They found that both the capacity to comply with the rules and the acceptance of “normative obligation” to obey the law both motivated compliance. Although the study was limited to participants in the United Kingdom, Kooistra and her coauthors suggested that messaging for lockdown and social distancing measures should not focus on scare tactics but should instead provide the tools for people to comply with the regulations. 

FLASHBACK FRIDAY

• In a 2018 essay for The Regulatory Review, Erin Quick analyzed the challenges that have prevented the international community from reaching a consensus on the regulation of genetic engineering. Quick’s analysis responded to a keynote address by Gary Marchant, a professor of law and ethics at Arizona State University, at a symposium held by the University of Pennsylvania Journal of Law and Public Affairs. Quick explained that although federal policies in the United States strictly limit manipulation of human embryo DNA, research in this area is legal in other countries. After describing several possible solutions, Quick highlighted a policy of transnational cooperation, in which differences in national policy are supported by each nation, as the most viable path to limiting risks of, and maintaining positive cooperation in, genetic engineering research.