Week in Review

IN THE NEWS

• Acting Secretary of Homeland Security Chad F. Wolf issued a memorandum directing U.S. Department of Homeland Security (DHS) personnel to reject all pending and future initial requests for Deferred Action for Childhood Arrivals (DACA) advance parole, and to shorten DACA renewals. Wolf issued the memorandum in response to the U.S. Supreme Court’s Department of Homeland Security v. Regents of the University of California decision blocking the Trump Administration’s attempt to end the DACA program. Wolf hoped the new procedures would give DHS time to “address serious concerns with the policy.” California Attorney General Xavier Becerra reportedly criticized the memorandum saying that, “the courts have spoken: DACA is in full effect” and promising that he will continue to challenge the Trump Administration’s attacks on DACA.
• President Donald J. Trump signed several executive orders in an attempt to lower the prices of prescription drugs. The orders included directives for the Secretary of Health and Human Services to authorize the importation of drugs from Canada, to limit the share of profits to middlemen who negotiate drug discounts, and to require that Medicare pay the same price for some drugs that comparable countries’ health systems pay. Although President Trump said that he would not permit the U.S. Department of Health and Human Services to implement the changes if his forthcoming meetings with top pharmaceutical executives are successful, the pharmaceutical executives apparently canceled the meeting following the signing of the executive orders. A Pharmaceutical Researchers and Manufacturers of America spokesperson reportedly claimed that the industry remains “steadfastly opposed to policies that would allow foreign governments to set prices for medicines in the United States.”
• Republican U.S. Senators introduced a series of bills to provide additional economic relief amid the ongoing public health crisis. The legislation would provide many citizens with a second $1,200 check, additional funding for the Paycheck Protection Program, and an employment retention tax credit. One proposed bill would make it more difficult to sue employers who fail to protect workers from COVID-19. The legislation would also decrease excess unemployment bonuses from $600 to $200. Senator Sherrod Brown (D-Ohio) strongly opposed the legislation for not providing enough relief, saying that it “hurts working people and fails to provide struggling families with the assistance they need during a once-in-a-lifetime pandemic.” Across the aisle, Senator Ted Cruz (R-Texas) reportedly expressed concern that the proposed legislation would provide too much relief, saying that “our objective should be restarting the economy.”
• A coalition of state attorneys general and local officials sued President Trump and the U.S. Department of Commerce over a memorandum that calls for the Secretary of Commerce to try to gather information that could lead to the exclusion of undocumented immigrants in the 2020 census for congressional apportionment. The lawsuit alleged that excluding undocumented immigrants from parts of the census violates the U.S. Constitution’s instructions for conducting the decennial census and violates the Administrative Procedure Act by making an “arbitrary and capricious” decision to exclude unauthorized immigrants from the apportionment count. New York Attorney General Letitia James argued that the memorandum is the “latest in a long list of anti-immigrant actions,” and that “no one ceases to be a person because they lack documentation.” At least three other lawsuits have been filed in federal courts challenging the executive action.
• The National Telecommunications and Information Administration sent a petition to the Federal Communications Commision (FCC) requesting stricter rules to govern moderation of speech on internet platforms. The Telecommunications and Information Administration asked the FCC to extend transparency requirements that have previously only applied to internet service providers. If adopted, search engines and social media platforms would have to make formal disclosures about any practice that shapes internet traffic. In May, President Trump issued an executive order directing the Telecommunications and Information Administration to produce this petition. FCC Commissioner Jessica Rosenworcel commented that the FCC should “honor the Constitution” by immediately dismissing the petition, but FCC Chairman Ajit Pai has not yet indicated his position on this subject, other than to state that the petition will be carefully considered.
• The U.S. Environmental Protection Agency’s (EPA) Office of Inspector General notified senior officials in EPA that the office plans to investigate their actions related to the Safer Affordable Fuel-Efficient Vehicles Rule. The rule reduced carbon dioxide emission and fuel economy standards for automakers. EPA staffers and the Office of Management and Budget reportedly criticized EPA for not providing justification for the reduced standard. The Office of Inspector General decided to investigate after a member of the U.S. Congress identified “potential irregularities” in the rulemaking process. The purpose of the investigation is to determine if EPA’s actions were consistent with EPA’s requirements and processes for developing final regulatory actions.
• The U.S. Department of Transportation issued a final rule allowing liquid natural gas to be transported by rail as long as certain safety requirements are met, such as special “DOT-113” train cars with an additional outer tank and enhanced brakes. Previously, the agency’s policy only allowed liquid natural gas transport by rail on an ad hoc basis, despite the fact that other hazardous substances have been allowed to be transported by the same means. Constraints on existing transportation infrastructure may negatively affect regions with insufficient access to pipelines or ports, and this policy seeks to enable additional transportation capacity for bringing domestically produced natural gas to new markets. Earthjustice called the proposed rule an “unprecedented, abrupt opening of the United States mainline rail system to long, heavy, hard-to-handle unit trains of liquid natural gas, using a 50-year-old rail tank car design which has never before been authorized for natural gas service” and pointed out that “it would only take 22 tank cars to hold the equivalent energy of the Hiroshima bomb.”
• The American Federation of Teachers, the second largest teachers union in the country, passed a resolution to “use every action and tool available,” including strikes, to protect the safety and health of teachers as schools plan to reopen. The union declared that school buildings should only open in areas with low COVID-19 infection rates and effective disease tracing. The Federation demanded that school districts make accommodations for at-risk teachers, follow recommended public health guidelines, and have processes to close schools when infection rates spike. The president of the Federation, Randi Weingarten, stated that if “authorities do not protect the safety and health” of educators, “nothing is off the table.”
• President Trump announced his intent to nominate Mark C. Christie and Allison Clements to the Federal Energy Regulatory Commission. The Commission, which has been operating this year with three Republicans and one Democrat, did not maintain its traditional bipartisan split. If confirmed, the addition of one Democrat and one Republican would restore the bipartisanship of the board. In a statement, U.S. Senator Joe Manchin (D-W. Va.) stated that, “in a political climate that is often paralyzed by partisanship, a bipartisan Federal Energy Regulatory Commission is more essential than ever.”

WHAT WE’RE READING THIS WEEK

• In a recent National Bureau of Economic Research working paper, Michael Barnett, Andrew Olenski, and Adam Sacarny found that Medicare’s policies affected private health care insurers’ policies. When Medicare asked doctors to prescribe fewer antipsychotics in 2015, Barnett and his coauthors found a 17 percent and 12 percent decrease of antipsychotic prescriptions to patients insured through Medicare and large private insurance companies, respectively. Barnett and his coauthors suggested that doctors changed their policies for all patients instead of distinguishing their patients by their insurers.
• In a recent article in Sustainability, Nicholas Ashford, director of the Technology and Law Program at the Massachusetts Institute of Technology, and his coauthors assessed a range of regulatory interventions that could decrease inequality and increase quality of life without destroying the environment. They considered the length of time needed to achieve interventions and emphasized the need to adopt a portfolio of interventions to maintain government revenue and middle class economic prosperity. For instance, Ashford and his coauthors discussed multiple ways to shift tax burdens from labor to energy use or foreign manufacturing, while improving the market power of consumers through minimum wage increases or payment plans for previously unpaid work such as child and eldercare.
• In a recent report, the Committee on Ways and Means found high percentages of inappropriately prescribed antipsychotic drugs in skilled nursing facilities. The Committee’s study found that citations for over-prescribing antipsychotics to nursing home residents declined significantly since 2017, with less oversight amid the Trump Administration’s regulatory changes that made it harder to sue nursing homes for substandard care and changed the way fines are assessed. The decline in prescription citations coupled with high use of prescription drugs indicated that regulatory rollbacks “played a significant role in permitting the use of antipsychotics to continue.”

FLASHBACK FRIDAY

• In a 2019 essay for The Regulatory Review, Herbert Hovenkamp, professor of law at the University of Pennsylvania Law School, examined whether an agreement between automakers to maintain higher tailpipe emissions standards than required by the Trump Administration violated antitrust laws. Hovenkamp noted four challenges to proving an antitrust violation in this case. First, the government would need to prove that the automakers made an agreement with the state of California and with each other. If the automakers made individual agreements with the state, but did not agree with each other, they would not have violated antitrust laws. Second, the agreement might fall under an exemption that allows anticompetitive conduct if it is authorized by the state. Third, the court may have considered the automakers actions a standard-setting agreement, which are common and allowed under antitrust laws. Finally, the automakers lacked the market power necessary to violate antitrust laws. Due to these challenges, an antitrust claim against automakers in this case is unlikely to be successful.