Week in Review

• The Trump Administration rescinded a rule that would have required international students to transfer or leave the country if their schools held classes entirely online. U.S. District Judge Allison Burroughs announced the news in a hearing before she was set to hear arguments on the lawsuit brought by Harvard University and the Massachusetts Institute of Technology. Instead of hearing arguments, Judge Burroughs held that the lawsuit was moot as the parties had come to “an agreement” to remove the policy and “return to the status quo.” Harvard President Lawrence Bacow reportedly called it a “significant victory” and stressed that even if the government attempts to issue a new rule the “legal arguments remain strong and the court has retained jurisdiction, which would allow us to seek judicial relief immediately to protect our international students should the government again act unlawfully.”
• In a 5-4 unsigned opinion, the U.S. Supreme Court held that the federal government can execute people on death row using a single lethal injection. The decision overturned a stay on federal executions by a federal district court. The opinion held that the people on death row had “not made the showing required to justify last-minute intervention.” All four liberal justices dissented, with both Justice Sonia Sotomayor and Justice Stephen Breyer filing dissents calling for “meaningful judicial review” and questioning the constitutionality of the death penalty, respectively. After the Supreme Court reversed the district court injunction, the federal government executed the first person since 2003.
• Georgia Governor Brian Kemp issued an executive order prohibiting local municipalities from requiring mask usage in public places. The executive order voided at least 15 mandatory mask usage orders issued by local governments throughout Georgia. In support of the executive order, Candice Broce, a spokesperson for Governor Kemp, tweeted that “local mask mandates are unenforceable.” Savannah Mayor Van Johnson, who was enforcing a mandatory mask order, tweeted that the executive order demonstrated Governor Kemp’s lack of concern for Georgia residents and expressed an “every man and woman for himself and herself” attitude.
• The Consumer Financial Protection Bureau (CFPB) issued a final rule that allows lenders to grant small dollar loans without checking if borrowers have the means to repay them, ostensibly in an effort to expand access to credit during the COVID-19 public health crisis. The rule came three months after a CFPB economist accused political appointees at the agency of pressuring researchers to suppress findings that small dollar loans harmed consumers. U.S. Senator Sherrod Brown (D-Ohio) responded that the agency “gave payday lenders exactly what they paid for by gutting a rule that would have protected American families from predatory loans.”
• The Council on Environmental Quality issued a final rule that comprehensively reinterprets the National Environmental Protection Act. The new rule set hard time limits for environmental impact reviews and expanded the criteria for allowing a categorical exclusion from environmental review, which is currently the most common agency review action. The rule also removed requirements to consider cumulative and indirect environmental harms, which may allow infrastructure projects to avoid careful consideration of their impact on climate change. Hundreds of environmental groups have criticized the provisions of the final rule. The American Petroleum Institute, on the other hand, welcomed the changes by releasing a statement that asserted that the rule “will help America streamline permitting to move job-creating infrastructure projects off the drawing board and into development.”
• A federal appellate court prevented the U.S. Department of Justice from withholding funding for criminal justice programs from California sanctuary cities. In 2017, California passed the California Values Act, which forbade state and local law enforcement agencies from acting as deputies for federal immigration authorities. The law conflicted with federal immigration laws that prohibit states and localities from preventing their officials from sharing information about someone’s immigration status with the U.S. Department of Homeland Security. Dennis Herrera, city attorney of San Francisco, praised the decision and emphasized that “there is no law requiring state or local governments to participate in immigration enforcement.” The decision followed three other federal appellate courts, all of which ruled against the Trump Administration, and a federal appellate court in New York that ruled in favor of the Administration.
• The U.S. Environmental Protection Agency proposed to retain the existing ozone National Ambient Air Quality Standards because the agency determined that the standards were adequate to protect public health and welfare. The standards, which establish levels of unhealthy exposure to smog, were set under the Obama Administration. Critics, however, have repeatedly challenged the standards for not being stringent enough to protect public health or the environment. John Walke, a senior attorney with the Natural Resources Defense Council, reportedly stated that the Trump Administration was relying on an Obama-era standard rather than determining “what the science tells you should be done today in 2020.” In a press release, the Environmental Protection Agency asserted that the agency is “following the principles established in the earliest days of the Trump Administration to streamline the…review process.”
• The U.S. Court of Appeals for the District of Columbia Circuit upheld a Federal Energy Regulatory Commission order that required state regulators to allow residential small battery owners to participate in federal wholesale electricity markets. In its challenge to the rule, the National Association of Regulatory Utility Commissioners argued that the agency’s order violated the Federal Power Act, which allows the agency to regulate the interstate grid and wholesale electricity markets but leaves regulation of local distribution networks to the states. The court ruled that the challenged order did not interfere with state jurisdiction because it only regulated wholesale market participation, even though residential batteries connect to the grid through the state controlled electricity distribution networks. In a friend-of-the-court brief, five state attorneys general, including California Attorney General Xavier Beccara, supported the Federal Energy Regulatory Commission’s rule because it works to remove unnecessary barriers to the development of battery deployment, which Beccara argued is one of the few ways that carbon emissions can be decreased while also lowering the cost of electricity.
• More than 1,000 employees at the Centers for Disease Control and Prevention (CDC) signed a letter calling for the CDC “to take immediate, specific, and measurable actions to address the systemic racism that continues to afflict this agency.” The letter, dated June 30 and addressed to the CDC Director Robert R. Redfield, demanded the agency declare racism a public health crisis, address the CDC’s “toxic culture of exclusion and racial discrimination,” and increase the diversity of leadership. A CDC spokesperson reportedly responded to the requests for comment by stating that the “CDC is committed to fostering a fair, equitable, and inclusive environment in which staff can openly share their concerns with agency leadership.” Camara Phyllis Jones, senior fellow at the Morehouse School of Medicine and former medical officer at the CDC, reportedly emphasized that systemic racism is “especially important to address if it’s impeding the nation’s response to a pandemic.”

WHAT WE’RE READING THIS WEEK

• In a recent National Bureau of Economic Research working paper, Chad D. Cotti, chair of the economics department at the University of Wisconsin Oshkosh, and four coauthors found that in-person voting in Wisconsin had a statistically significant relationship with the spread of COVID-19. Using county-level data on voting and COVID-19 tests, Cotti and his coauthors found that in-person voting in Wisconsin was related to approximately 700 more COVID-19 cases after the election. Cotti and his coauthors suggested that policymakers should increase the number of polling locations and encourage absentee voting to reduce the population density of voters.
• In an op-ed for The New York Times, Jessica Calarco, associate professor of sociology at Indiana University, Bloomington, asserted that Secretary of Education Betsy DeVos is failing to provide public schools with the resources they need to reopen safely. Calarco argued that by pressuring schools to reopen with inadequate resources, DeVos is instituting a new form of school choice, where children with affluent caregivers will receive a quality education and other children will be left behind. Calarco viewed the pressure to reopen schools as a way for DeVos to “compel many privileged families to abandon those schools,” leading to great inequalities.
• A report by the U.S. Government Accountability Office (GAO) examined the Trump Administration’s sevenfold reduction in the “social cost of carbon,” an amount specified by the federal government that estimates the harm global warming will cause future generations. The federal government uses that estimate in its cost-benefit analyses, and the Trump Administration’s reduced estimate has been used recently to justify rules allowing automobiles and coal power plants to emit more carbon dioxide. GAO explained that the Trump Administration was able to change the social cost of carbon by using higher discount rates, a type of financial calculation that assumes future benefits are not valuable in the present. In addition, the Trump Administration now only considers damage that would occur within the United States rather than damage around the globe. GAO compared estimates of the social cost of carbon with other countries and recommended that the Office of Management and Budget take action to standardize social cost of carbon estimates based on guidance from the National Academies of Science.

FLASHBACK FRIDAY

• In a 2019 essay for The Regulatory Review, Ellen P. Goodman, professor of law at Rutgers Law School, argued that while algorithms can be helpful in improving complex regulatory structures, the use of a mathematical model fails to capture or communicate nuances of a policy, often leading to its rejection or failure. Goodman used the Boston public school system’s adoption of an algorithm to improve the school busing system as a case study since the algorithm offered a significant price cut and a more equitable school schedule but was sharply rejected by the public. Although algorithms often omit important equity concerns, even if they do not, Goodman argued, the public may reject the models if they are presented without significant transparency and citizen engagement. Goodman concluded that using algorithms to improve regulatory schemes requires an emphasis on the socio-political implications of their implementation.