Week in Review

IN THE NEWS

• The Centers for Disease Control and Prevention (CDC) issued an order to slow the spread of COVID-19 by prohibiting residential evictions until December 2020. The CDC issued the order under the authority of a federal law that permits the agency director to impose necessary measures to prevent the spread of infectious disease. To qualify for eviction protection, a resident must meet certain conditions, including expecting to earn $99,000 or less during 2020, being unable to pay rent due to job loss or similar reasons, and being at risk of homelessness if evicted. Residents invoking the order are still required to pay any missed rent and applicable late fees. Housing advocates have expressed support for the order, which they say will prevent homelessness during the pandemic, but they also raise concerns about the flood of evictions that could follow after the moratorium expires. 
• Eleven Democratic senators sent a letter to Secretary of Treasury Steven Mnuchin requesting that he sanction individuals and entities who seek to interfere in the presidential election. The senators cited an August 7 statement by National Counterintelligence and Security Center Director William Evanina that outlined foreign threats to the 2020 election, noting that “Russia is using a range of measures to primarily denigrate former Vice President Biden.” The letter highlighted that “Congress has mandated a broad range of sanctions tools” and asserted that “it is long past time for the Administration to send a direct message to President Putin.”
• The Federal Emergency Management Agency (FEMA) released a new interim policy for determining which costs associated with COVID-19 are eligible for funding under its Public Assistance Program. The Public Assistance Program provides funding to help states respond to emergencies. Under FEMA’s new policy, however, the agency limited the scope of workers that can receive program funding for personal protective equipment during the coronavirus pandemic. Keith Turi, FEMA assistant administrator for recovery, reportedly stated that personal protective equipment used in nonemergency settings, such as schools and courthouses, will no longer qualify for assistance because it is not a “direct emergency protective measure.” Some state officials raised concerns about the implications of this policy change as schools reopen, potentially leaving teachers without adequate funding for protective gear.
• The U.S. Department of Agriculture (USDA) extended through the end of December a program that has provided free school meals to children on a flexible basis during the coronavirus pandemic. Key flexibilities of the meal program had been due to expire later this month, including the provision that allows parents to pick up meals at any covered school rather than only the school that their child attends. Agriculture Secretary Sonny Perdue committed to extending the benefits of the program “for as long as we can, legally and financially,” to alleviate the strain on parents of school-aged children amid the coronavirus pandemic.
• The U.S. Environmental Protection Agency (EPA) finalized a rule rolling back an Obama-era policy that regulated the treatment of wastewater in coal plants. The previous policy mandated that coal plants use the most effective technology to remove heavy metals from wastewater to protect watersheds and local wildlife. The new rule revised key portions of the prior policy, lowering the treatment technology standards, pushing compliance deadlines from 2023 to no later than 2025, and exempting some plants entirely that plan to stop operating before 2028. EPA Administrator Andrew Wheeler said that “newer, more affordable pollution control technologies and flexibility on the regulation’s phase-in will reduce pollution and save jobs at the same time.” Brett Hartl of the Center for Biological Diversity reportedly called the rule a “shameless handout” that will permit greater amounts of “dangerous pollutants to be spewed directly into our waterways, threatening public health and pushing hundreds of aquatic endangered species … closer to extension.” 
• The U.S Department of the Treasury issued guidance on President Donald J. Trump’s August 8 memorandum on payroll tax deferrals. According to the Treasury Department, companies can stop withholding certain employees’ payroll taxes until January 2021, but individuals and companies must still pay these taxes by the end of April 2021. Secretary of Treasury Steven Mnuchin reportedly asserted that congressional action would be necessary to waive the payroll tax, a policy that the President had urged the Treasury to explore. The U.S. Chamber of Commerce and some coalition members called the program “unfair to employees to make a decision that would force a big tax bill on them next year.”
• The Trump Administration announced that the United States will not join the global effort, led by the World Health Organization, to develop and distribute a coronavirus vaccine. The initiative, known as COVAX, includes 172 countries working in partnership “to ensure COVID-19 vaccines are available worldwide to both higher-income and lower-income countries.” Judd Deere, a spokesperson for the White House, reportedly said that the Trump Administration will continue to develop a vaccine but “will not be constrained by multilateral organizations influenced by the corrupt World Health Organization and China.” Experts criticized the decision as potentially limiting the United States’ ability to obtain a vaccine developed by a member of COVAX in the future. 
• The U.S. Department of Energy reached a historic settlement with the state of South Carolina to remove 9.5 metric tons of weapons-grade plutonium from a Cold War-era site in South Carolina by 2037 and to make an upfront payment to the state of $600 million. The Energy Department had initially planned in 2002 to build a facility in South Carolina that would dispose of the material on site, but the Trump Administration terminated construction of that facility in 2018. Under the terms of the settlement, the U.S. government will owe the state an additional $1.5 billion if it fails to remove any of the plutonium by 2037. U.S. Senator Lindsey Graham (R-S.C.) reportedly applauded the settlement and said that if the federal government does not meet its commitment by 2037, “I don’t know if I’ll be around. But if I’m not, my ghost will collect the money.”
• The U.S. Department of State imposed new requirements on Chinese diplomats, forcing them to seek express permission from the agency to visit university campuses or meet with local government officials. In addition, the new restrictions will require Chinese embassies and consular posts to obtain permission from the State Department to host cultural events with audiences of greater than 50 people. Secretary of State Mike Pompeo characterized the measures as an attempt at “advancing reciprocity” in light of the limitations imposed by China on U.S. diplomats seeking to visit universities and conduct official meetings and cultural events in the country.

WHAT WE’RE READING THIS WEEK

• In a paper published by International Organization, Michael Kenwick of Rutgers University and Beth Simmons of the University of Pennsylvania Law School argued that countries closing their borders to control the spread of the coronavirus reflects “growing anxieties about border security.” Kenwick and Simmons found that border controls were among the most prevalent policies countries enacted in response to COVID-19. Instead of countries making border control policies based on scientific evidence, Kenwick and Simmons found that the decision to close borders due to the pandemic was more likely due to fear and political calculations. “Pandemic responses are imbued with border politics,” Kenwick and Simmons concluded, arguing that the coronavirus pandemic highlights the importance of international borders and the role they play in both global and domestic politics.
• In a brief for the Center for American Progress, policy analyst Diana Boesch argued that the coronavirus pandemic has demonstrated the urgent need for comprehensive paid family, medical, and sick leave. In response to leave demands amid the pandemic, Congress passed the first national paid leave law that provided workers with up to two weeks of paid emergency sick leave and up to ten weeks of paid emergency leave for child care. Boesch emphasized that many people are left out by this emergency paid leave provision and asserted that Americans need a permanent measure to protect workers beyond the law’s December 2020 expiration date. Boesch proposed that the economic security created by the emergency paid leave programs demonstrates that paid leave programs must cover all workers and ensure both short- and long-term leave, flexible durations and automatic triggers, adequate wages for all types of leave, and employment protection for those on leave. 
• In an article in the Harvard Business Law Review, Howell E. Jackson, professor of law at Harvard Law School, and Paul Rothstein, section chief at the Consumer Financial Protection Bureau, evaluated the use of cost-benefit analyses by financial regulatory agencies in matters involving consumer finance. Jackson and Rothstein cataloged the various areas of benefits that agencies have accounted for in designing consumer financial regulations, including traditional market failures and what they call the “cognitive limitations of consumers.” Jackson and Rothstein concluded by pointing to sample regulations that were exemplary in their use of cost-benefit analysis, highlighting the consumer protection regulations that emerged after the passage of the Dodd-Frank Wall Street Reform and Consumer Protection Act.

FLASHBACK FRIDAY

• In an essay in The Regulatory Review, Colleen V. Chien, professor of law at Santa Clara University School of Law, highlighted the growth of federal “policy piloting,” a practice already common in the private sector that enables agencies to test and evaluate routinely the efficacy of new federal policies. Chien surveyed several different federal agencies that have embraced this practice, including the U.S. Food and Drug Administration, which implemented a pilot program that streamlined the regulatory approval process for new software-based medical devices. Chien extolled piloting as a cost-effective means for the federal government to experiment, assess, and iterate on new policies before fully implementing them at scale.