Week in Review

IN THE NEWS

• In a 6-3 decision, the U.S. Supreme Court determined that employers who discriminate against employees for being gay, lesbian, or transgender violate the 1964 Civil Rights Act. The Court held that this federal law’s prohibition of employment discrimination based on sex includes a ban on discrimination based on sexual orientation or gender identity. In the majority opinion, Justice Neil Gorsuch wrote that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” In the dissenting opinion, Justice Samuel Alito argued that the common understanding of sex discrimination in 1964 was bias against women or men rather than bias based on sexual orientation or gender identity. Prior to this decision, it was legal in more than half of states for an employer to fire an employee for being gay, lesbian, or transgender. Despite the Court’s ruling, Justice Gorsuch noted that the 1993 Religious Freedom Restoration Act may provide a legal option for employers who object to hiring gay, lesbian, or transgender employees on religious grounds. 
• The U.S. Supreme Court ruled that former Acting Secretary of Homeland Security Elaine C. Duke violated the Administrative Procedure Act by rescinding the Deferred Action for Childhood Arrivals (DACA) program on the sole basis that she considered it to be an unlawful extension of the U.S. Department of Homeland Security’s (DHS) authority. In a 5-4 decision, the Court held that DHS should have continued the deferred deportation component of DACA, even if it ended the portion of the program that allocated government resources to undocumented immigrants, which was further outside of DHS’s explicit authority under the Immigration and Nationality Act. Chief Justice John Roberts explained in the majority opinion that the Court was not deciding “whether DACA or its rescission are sound policies,” but “whether the agency complied with the procedural requirement that it provide a reasoned explanation for its action.” The four dissenting Justices agreed with the Trump Administration that authorization for a DACA-like program must come from the U.S. Congress. Justice Clarence Thomas argued in his dissent that the “decision must be recognized for what it is: an effort to avoid a politically controversial but legally correct decision.” 
• In a 7-2 decision, the U.S. Supreme Court upheld a permit for an $8 billion natural gas pipeline under the Appalachian Trail. The majority held that, because the U.S. Department of Interior did not transfer the land to the U.S. National Park Service as a part of the National Park System, the U.S. Forest Service could issue a special use permit. The decision overturned the U.S. Court of Appeals for the Fourth Circuit’s holding that the Appalachian Trail fell under the authority of the National Park Service, which it said was barred by law from granting land access for energy development. The Natural Resources Defense Council pledged to continue fighting to prevent construction of the pipeline and emphasized significant remaining barriers before the government officially greenlights the pipeline.  
• The U.S. Department of Health and Human Services finalized a rule that removed nondiscrimination protections for LGBTQ+ people in health care and health insurance markets. The rule reversed nondiscrimination protections from the Patient Protection and Affordable Care Act that broadened sex discrimination to include discrimination based on gender identity, defined as “male, female, neither, or a combination of male and female.” Rodrigo Heng-Lehtinen, deputy executive director of the National Center for Transgender Equality, reportedly said that it was “horrendous” to gut nondiscrimination protections, particularly in a pandemic, and warned that “this rule opens a door for a medical provider to turn someone away for a COVID-19 test just because they happen to be transgender.” The Human Rights Campaign and Lambda Legal plan to challenge the rule in court. The final rule is part of a series of proposed regulations by the Trump Administration to narrow the legal definition of “sex discrimination” to exclude sexual orientation and gender identity. 
• The U.S. Food and Drug Administration (FDA) revoked the emergency use authorization for chloroquine phosphate and hydroxychloroquine sulfate in the treatment of COVID-19. FDA determined that the drugs no longer met the legal criteria for emergency use because chloroquine and hydroxychloroquine proved unlikely to be effective in treating COVID-19. FDA Deputy Commissioner for Medical and Scientific Affairs Anand Shah stated that “FDA always underpins its decision-making with the most trustworthy, high-quality, up-to-date evidence available,” and reiterated FDA’s commitment to evaluate and make changes to emergency use authorizations. 
• President Donald J. Trump signed an executive order directing the U.S. Department of Justice to allocate discretionary grant funding to police departments that certify that they offer de-escalation training and prohibit chokeholds, except in situations when officers feel their lives may be in danger. Reverend Al Sharpton, founder of the National Action Network, implied that any prohibition on chokeholds drafted in line with the executive order would be ineffective because police officers routinely claim to use chokeholds when their lives are threatened. The order calls on the U.S. Attorney General to create a database that could be used by local authorities to track police officers who repeatedly engage in misconduct. It also encourages police departments to involve social workers and mental health representatives on police calls related to homelessness, mental illness, and addiction. U.S. House Speaker Nancy Pelosi (D-Calif.) reportedly said that the executive order fell “short of what is required to combat the epidemic of racial injustice and police brutality that is murdering hundreds of Black Americans.” Commentators noted that President Trump lacks the authority to order any changes to state and local law enforcement. 
• U.S. Senator Tim Scott (R-S.C.) proposed a police reform bill in response to what U.S. Senator Mitch McConnell (R-Ky.) has reportedly called “obvious racial discrimination that we have seen on full display on our television screens.” Senator Scott’s bill would ban chokeholds for the purposes of incapacitating someone and instruct the U.S. Attorney General to develop new restrictions on their use. The bill also would instruct the Attorney General to develop training curricula for alternatives to the use of force and de-escalation techniques. U.S. Senator Kamala Harris (D-Calif.) reportedly responded to the bill by saying that “it gives lip service to the problem. There is just no teeth in it. Literally what he is proposing would not save a single life.” Unlike a bill that has passed from the Judiciary Committee in the U.S. House of Representatives, the Senate bill would not limit qualified immunity, a doctrine which places limits on a plaintiff’s ability to sue police officers for actions taken in the course of their duties. Both the House and the U.S. Senate plan to continue consideration of their respective bills next week. 
• The U.S. Department of Justice urged the U.S. Congress to reform Section 230 of the Communications Decency Act, which grants platforms such as Facebook and Twitter immunity from civil liability for content posted by third parties. Responding to a recent executive order that alleged that online platforms unfairly censor conservative views and directed the Justice Department to propose reforms, the Justice Department requested increased liability for online platforms that knowingly host content that violates federal law. A bipartisan group of U.S. senators had already introduced legislation in March that would require online platforms to crack down on child exploitation or risk losing Section 230 immunity. The Justice Department’s recommendations came a day before Facebook removed a series of advertisements from President Trump’s reelection campaign that displayed a symbol used by Nazis during World War II to designate political prisoners.
• Democratic members of the U.S. House of Representatives Select Subcommittee on the Coronavirus Crisis sent letters to the U.S. Department of Treasury, the U.S. Small Business Administration, and eight national banks requesting documents and detailed information on the disbursement of funds through the Paycheck Protection Program. The letters reflect the concerns of Democratic subcommittee members about a lack of transparency in processing the program’s loan applications and failure to prioritize “small businesses in underserved communities.” U.S. Senator Marco Rubio (R-Fla.) reportedly said that he had spoken to Treasury Secretary Steve Mnuchin, who is apparently working to make the system more transparent. The letters build on prior inquiries from U.S. Representatives Maxine Waters (D-Calif.) and Nydia Velázquez (D-N.Y.) into the management of the program.
• The U.S. Supreme Court declined to hear a challenge of a California law that prohibits local police departments from cooperating with federal law enforcement officials working to identify and deport undocumented immigrants. In a brief to the Court, California State Attorney General Xavier Becerra argued that the sanctuary law follows constitutional precedent permitting states to prevent their own agencies from carrying out federal policy. Justices Clarence Thomas and Samuel Alito voted to hear the case. After the denial was announced, Becerra said in a statement that the sanctuary law is important because it promotes trust in local law enforcement and that “today, America is experiencing the pain and protest that occurs when trust is broken.”   

WHAT WE’RE READING THIS WEEK

• In an article for The Chronicle of Social Change, Dorothy Roberts, the George A. Weiss University Professor of Law, Sociology and Africana Studies at the University of Pennsylvania, voiced concern that defunding the police would reallocate police department budgets to child protective services. In defunding the police, activists hope to minimize state violence against Black communities and individuals. But Roberts worried that, in redirecting police funding to child protective services, the state would continue to surveil and control Black and marginalized communities through the “family regulation system.” Roberts framed defunding the police as “part of a broader struggle to abolish the prison industrial complex, including jails, prisons, detention centers, and other carceral practices, while building a radically different society.” She encouraged the abolition movement to include child protective services as another apparatus for monitoring and controlling marginalized people.  
• In a recent National Bureau of Economic Research working paper, Joseph S. Shapiro, an economist on the faculty at the University of California, Berkeley, documented that tariffs and other economic barriers are substantially lower on “dirty” industries than “clean” industries in most countries. Shapiro defined dirty industries as those with higher carbon dioxide emissions per dollar of output, and he argued that governments are implicitly subsidizing dirty industries through their trade policies. Shapiro suggested that the differences in trade policy for clean and dirty industries is caused by firms in clean industries lobbying for greater trade protections for their own products while also lobbying for lower trade protections on their inputs from dirty industries to decrease production costs. Shapiro showed that global carbon dioxide emissions would decrease by several percentage points if countries applied similar trade policies to clean and dirty industries.
• The U.S. Cyberspace Solarium Commission, a bipartisan commission charged with developing a comprehensive strategy to cyberspace defense under the John S. McCain National Defense Authorization Act, released a report outlining a government-wide cyber-attack deterrence framework. The Commission found that the United States is vulnerable to cyber-attacks on election systems and critical infrastructure, as well as to cyber-enabled theft of intellectual property. The Commission recommended more than eighty specific actions, including the establishment of a National Cybersecurity Certification and Labeling Authority and legislation to hold final goods assemblers liable for incidents that exploit known and unpatched vulnerabilities. Following the example of the European Union’s General Data Protection Regulation, the Commission also recommended that Congress pass a national data security and privacy protection law to standardize requirements for firms on collecting and sharing user data. 

FLASHBACK FRIDAY

• In a 2018 article for The Regulatory Review, Stefanie Ramirez synthesized a Harvard Law Review article written by Jessica Clarke, professor at Vanderbilt University Law School, in which Clark discussed three potential regulatory schemes under which the rights of nonbinary individuals can be recognized. First, a sex neutrality framework would involve removing “unnecessary sex classifications by government when the categorization does not serve an important interest.” Second, a gender recognition framework would provide a third gender category in addition to male and female categories. Finally, an integration framework would place nonbinary people into binary categories depending on the specific situation, such as previous federal determinations of prison housing for transgender or intersex individuals, which involved a case-by-case assessment of male or female housing placement depending on what was safest for the individual.