Week in Review

IN THE NEWS

• Democrats in the U.S. House of Representatives proposed a new coronavirus relief bill. The $2.2 trillion aid package includes support for housing and food assistance programs, stimulus checks for many Americans, funds to continue expanded unemployment payments through January, and additional funding for coronavirus testing and contact tracing. The bill also features a Republican-backed provision to provide financial support to airlines. House Republican Whip Steve Scalise (R-La.) reportedly stated that the bill “recycles the same socialist wish list that was offered in the Heroes Act, which House Republicans overwhelmingly rejected.” 
• A federal judge granted a preliminary injunction against the U.S. Department of Commerce’s ban on transactions related to TikTok, a Chinese-owned application. The Commerce Department instituted the ban in response to President Donald J. Trump’s executive order urging “aggressive action against the owners of TikTok to protect our national security.” The judge issued the ruling hours before the ban was set to go into effect, which would have required Apple and Google to remove TikTok from U.S. app stores. The judge ruled that the prohibitions likely exceeded the President’s authority under the International Emergency Economic Powers Act, which “contains express limitations” on regulating “information or informational materials” such as TikTok.
• Under the directive of a presidential executive order, the U.S. Department of Health and Human Services (HHS) took steps aiming to lower drug prices. The Health Resources and Services Administration issued a notice of proposed rulemaking that would require certain federally funded entities to provide low-income patients access insulin and injectable epinephrine for the same cost that health centers pay for the drugs. In addition, the U.S. Food and Drug Administration issued a final rule allowing for the importation of certain drugs from Canada to reduce drug prices for American consumers. HHS Secretary Alex Azar stated that both of these rules will help to deliver “better care, more choice, and lower costs for all Americans.”
• A federal court issued a preliminary injunction to stall enforcement of a U.S. Department of Homeland Security (DHS) rule that would have increased fees for citizenship applications beginning today. DHS proposed the new rule claiming that “current fees do not recover the full cost of providing adjudication and naturalization services.” A judge for the Northern District of California said that if the rule were to go into effect before the culmination of the lawsuit, “it will prevent vulnerable and low-income applicants from applying for immigration benefits, will block access to humanitarian protections, and will expose those populations to further danger.”
• The U.S. Department of State proposed capping refugee admissions at 15,000 in 2021, a decrease from the admissions ceiling of 18,000 refugees in 2020. In the notice, the State Department said that it would prioritize preventing the humanitarian emergencies that give rise to refugee displacement in the first place, citing its diplomacy in Venezuela as an example of these efforts. Krish O’Mara Vignarajah, president and CEO of Lutheran Immigration and Refugee Service, emphasized that the Trump Administration’s latest proposal would amount to a historic low in refugee admissions, which  began at 110,000 admissions at the program’s inception. She wrote that “in real terms, this means that families who have already waited years are forced to postpone reunification.”
• The U.S. Department of Labor launched a complaint hotline for employees to report use of training programs prohibited by President Donald J. Trump’s executive order, “Combating Race and Sex Stereotyping.” Under the order, President Trump identified certain “divisive concepts” that cannot be incorporated in training programs for any U.S. Uniformed Services, government contractors, or executive agencies. As defined in the order, examples of divisive concepts include claims that the “United States is fundamentally racist or sexist,” or that an individaul, by virtue of race or sex, is “inherently racist, sexist, or oppressive, whether consciously or unconsciously.” Critics worry that this order will set back workplace efforts to increase diversity and inclusion. 
• A federal judge in Montana held that Acting Director of the Bureau of Land Management William Pendley has been serving unlawfully, terminating his authority in that capacity. Montana Governor Steve Bullock and the Montana Department of Natural Resources and Conservation sued the Bureau of Land Management and the U.S. Department of the Interior in July, arguing that Pendley’s position as Acting Director violated the Appointments Clause of the U.S. Constitution. The ruling follows similar decisions invalidating the appointments of Acting Secretary of the Department of Homeland Security Chad Wolf and Acting Director of U.S. Citizenship and Immigration Services Kenneth Cuccinelli. In his opinion, Chief Judge Brian Morris of the U.S. District Court for the District of Montana wrote that “the President cannot shelter unconstitutional ‘temporary’ appointments for the duration of his presidency through a matryoshka doll of delegated authorities.”
• A judge ruled that Uber is “fit and proper” to hold a license to operate in London. Deputy Senior District Judge Tan Ikram wrote that since Transport for London pulled Uber’s license in November 2019 citing safety concerns citing safety concerns, Uber has implemented various safety measures including “Program Zero,” which aims to eliminate license breaches among its fleet of drivers. Steve McNamara, general secretary of London’s association of black-cab taxi drivers, excoriated the decision in a statement, saying that “a leopard doesn’t change its spots and we are clear that Uber’s underlying culture remains as toxic as it has ever been.”
• The Administration for Children and Families issued a memorandum reversing a long-contested policy that prevented teenagers in immigration detention centers from obtaining abortions. Under the memorandum, the Office of Refugee Resettlement staff or care providers “shall not take actions to obstruct or interfere” with minors in custody accessing abortion. The new policy is the culmination of a three-year legal battle  between the Trump Administration and the American Civil Liberties Union, which sued on behalf of patients who were prevented from obtaining abortions while detained in government custody. 

WHAT WE’RE READING THIS WEEK

• In a forthcoming article in the Vanderbilt Law Review, Thomas J. Bollyky, director of the global health program at the Council on Foreign Relations, and Aaron S. Kesselheim, professor of medicine at Harvard Medical School, evaluated the current approach to prescription drug importation as a means of reducing high prescription drug costs in the United States. They found that drug imports from countries such as Canada are often legally barred because the U.S. Food and Drug Administration does not recognize the prescription drug regulations of many exporting countries as equivalent to domestic regulations. Bollyky and Kesselheim advocated prescription drug importation as an effective means of addressing generic drug shortages in the United States despite apparent design flaws in the Trump Administration’s plans to increase drug importation from foreign sellers such as Canada.
• In a forthcoming paper in the Fordham Urban Law Journal, Doron Dorfman, professor at Syracuse University College of Law, and Mariela Yabo, research associate at Myers-JDC-Brookdale Institute, analyzed how large U.S. cities enforce disability laws. Dorfman and Yabo explained that localities are responsible for the enforcement of disability laws, such as the American Disability Act, and that the laws include few remedies for noncompliance. Dorfman and Yabo claimed that the United States’ “diffused model” for enforcing disability laws led to high rates of noncompliance. In contrast, they show how Israel achieved higher compliance rates by using a more centralized approach. Dorfman and Yabo concluded that disability laws would be strengthened if enforcement provisions were included in the laws, and urged the federal government to take a proactive approach to their enforcement. 
• In a report for the Center for American Progress, Galen Hendricks and Seth Hanlon advocated that the federal government should eliminate capital gain tax preferences because capital gains loopholes allow wealthy individuals to pay less in taxes than non-wealthy taxpayers. Hendricks and Hanlon argued that the tax code promotes economic inequality through lenient tax rates, deferred payments, and legal loopholes that allow wealthy individuals to avoid taxation on capital gains. They contended that wealthy taxpayers disproportionately comprise those qualified to pay low rates on a significant portion of their income through capital gains exceptions and advised raising capital gains taxes, closing loopholes, and rejecting further tax cuts.  

FLASHBACK FRIDAY

• In a 2019 essay in The Regulatory Review, Joel Mintz, professor at Nova Southeastern University Shepard Broad College of Law, argued that the success of the traditionally conservative effort to deregulate will lead to its own demise. The push to deregulate, Mintz explained, is born out of a desire for less government interference in business. Mintz claimed, however, that the same movement that pushed to lessen regulation also rejected “virtually any effort to stem pollution, mitigate climate change, and protect workers and consumers” through regulation. Mintz argued that the popularity of anti-regulatory strategies will end as people increasingly recognize the need for policies that protect individuals over business.