Week in Review

IN THE NEWS

• The U.S. Supreme Court declined to hear a case seeking to reinstate a U.S. Food and Drug Administration rule requiring health care providers to dispense the abortion drug mifepristone in person. Due to the coronavirus pandemic, patients have been able to access drugs that cause abortions through telehealth visits with their doctors. In dissent, Justice Samuel Alito and Justice Clarence Thomas admonished the majority, claiming that the decision reduced First Amendment rights while expanding abortion rights during the COVID-19 pandemic.
• A federal court invalidated an Obama-era Bureau of Land Management rule that restricted natural gas emissions during oil drilling on tribal lands. The court held that the Bureau of Land Management exceeded its authority under the Mineral Leasing Act, which permits the agency to limit natural gas waste, but not to regulate air quality standards. The court determined that the Bureau acted outside its authority when it enacted the rule because its primary goal in enacting the rule was to promote air quality standards. Nicholas Goodwin, director of communications for the U.S. Department of the Interior, reportedly called the old rule an illegal “job-crushing regulation targeted at small businesses” and celebrated its demise. Peter Zalzal, attorney for the Environmental Defense Fund, lamented the decision, which he said would result in increased natural gas waste on tribal lands and harm to tribal communities.
• The U.S. Court of Appeals for the Fifth Circuit allowed Texas governor Greg Abbott’s proclamation limiting ballot drop-off boxes to one box per county to go into effect. The decision reversed the district court’s finding that the rule would likely threaten voting rights, especially the voting rights of vulnerable citizens who vote absentee in order to vote safely. The Court of Appeals held that governor Abbot’s proclamation would expand rather than limit voting rights, explaining that “the fact that this expansion is not as broad as plaintiffs would wish does not mean that it has illegally limited their voting rights.”
• The U.S. Supreme Court ruled that the U.S. Census Bureau could stop the census count before the December 31 deadline. Census Bureau officials wanted to end the census early to leave enough time to compile the data accurately and present it to the President by the scheduled deadline. Justice Sonia Sotomayor dissented from the decision, arguing that “the harms associated with an inaccurate census are avoidable and intolerable” and emphasized the impact on marginalized people. The Census Bureau reverted to the October 15 deadline following the Supreme Court decision. 
• President Donald J. Trump issued an executive order intending to modernize the United States’ water infrastructure. The order directs agencies that “engage in water-related matters,” such as water storage, to join an interagency water subcabinet to promote coordination across agencies and prioritize the modernization of water resources. In a press release, the U.S. Environmental Protection Agency called the order a “historic action” that will promote effective coordination on water policy, modernize water supplies, eliminate duplication between agencies, and ensure all American have access to “essential water supplies.”
• Democrats on the U.S. Senate Committee on Foreign Relations released a report concluding that U.S. Customs and Border Patrol agents conducted an unauthorized operation in Guatemala. During the operation, the agents rounded up migrants on their way to the U.S. border and returned them to Honduras in “unmarked vans.” According to the report, agents conducted the operation in “an improvised manner” with no safety protocols in place and in violation of an agreement with the U.S. Department of State. Andrew Selee, president of the Migration Policy Institute, reportedly questioned the legality of the operation, asking “whether the United States should be doing active immigration enforcement inside a sovereign country.”
• The Centers for Disease Control and Prevention (CDC) released responses to frequently asked questions about an order that prevents residential evictions until December 31. The CDC clarified that the order is not “intended to prevent landlords from starting eviction proceedings” and that “landlords are not required to make their tenants aware of the order.” Solomon Greene of the Urban Institute reportedly said that, rather than clarifying the order, the guidance complicates the issue and seems “designed to allow landlords to intimidate tenants into leaving sooner.” 
• President Donald J. Trump signed an executive order to establish an interagency council to recommend ways the United States can contribute to a World Economic Forum initiative to support global reforestation efforts. Earlier this year, the President had announced that the United States would join the ambitious initiative to plant and conserve one trillion trees by 2030. U.S. Secretary of Agriculture Sonny Perdue said that the President’s commitment reflects the admonishment of Perdue’s father that “when it comes to the land, we want to leave it better than we found it.”
• Eight countries signed the National Aeronautics and Space Administration’s (NASA) Artemis Accords, a set of bilateral agreements that seek to ensure that activities in outer space and on the surface of the moon are conducted peacefully in the future. First announced in May, the Artemis Accords advance the international interests first articulated in the Outer Space Treaty, which forbids the deployment of nuclear weapons in space. NASA Administrator Jim Bridenstine applauded the announcement, calling the effort “the broadest and most diverse international human space exploration program in history.”

WHAT WE’RE READING THIS WEEK

• In a new research paper, Cynthia Dahl, professor of law at the University of Pennsylvania Law School, analyzed the effects of the America Invents Act on university technology transfer offices, which oversee the commercialization of technology developed at universities. Enacted in 2011, the America Invents Act introduced significant changes to the U.S. patent system, most notably giving priority to the first inventor to file. As Dahl explained in her paper, the America Invents Act motivated university technology transfer offices to rethink how they balance profitability for faculty inventors and universities with their goals of bringing new technologies to the world.
• The University of Pennsylvania Center for Ethics and Rule of Law and the Citizens for Responsibility and Ethics in Washington published a report finding that Attorney General William Barr violated U.S. Department of Justice regulations and other federal law by politicizing the Justice Department. The working group found that Barr violated ethics rules and other norms by mischaracterizing national security issues to the public, deploying federal troops against dissenters, and initiating politically motivated counter-investigations prior to an election. The working group recommended that the U.S. House of Representatives open an impeachment hearing into Barr’s conduct and strengthen rules that maintain the political independence of the Justice Department. 
• In a paper in the Journal of Health Politics, Policy, and Law, Allison Hoffman, law professor at the University of Pennsylvania, argued that promoting options to choose a health insurance provider through the Affordable Care Act “is problematic for the future of U.S. health policy.” Hoffman first highlighted the false assumption that having the ability to choose a health insurance plan will be beneficial for individuals. She then discussed how the creation of regulations to promote health insurance choice led to “massive market bureaucracy.” Finally, Hoffman argued that the Affordable Care Act reinforced a belief that the goal of health care regulation should be to preserve individual choice, when, in actuality, most people do not have multiple health insurance options available to them. 

FLASHBACK FRIDAY

• In an essay in The Regulatory Review, Sharon Yadin, a professor at Peres Academic Center, evaluated a regulatory strategy called “regulatory shaming” that has become increasingly popular among federal agencies. Agencies that use regulatory shaming publicize negative information about regulated bodies to achieve public interest goals such as better regulatory compliance. For example, the U.S. Occupational Safety and Health Administration regularly posts about occupational safety violations on social media in an effort to bring private actors into compliance. Yadin endorsed the strategy, arguing that shaming can both advance agency goals and facilitate the public’s participation in the regulatory process.