Week in Review

IN THE NEWS

• The U.S. Department of Homeland Security (DHS) announced that it would resume the “Remain in Mexico” policy, which returns non-Mexican individuals who cross into the United States from the southern border to Mexico while they await removal proceedings, pursuant to a federal court order. DHS stated, however, that it will not reimplement the policy until the government of Mexico makes a “final and independent decision” to accept the return of migrants enrolled in the program. DHS also announced plans to incorporate key humanitarian changes to the program, including a commitment to conduct removal proceedings within six months of returning a migrant to Mexico and ensuring greater access to legal counsel for migrants.
• A federal court blocked an executive order requiring federal contractors to become vaccinated against COVID-19. The court reasoned that the Biden Administration exceeded its authority because, in practice, the rule regulates public health instead of government contracting. The court blocked the rule nationwide to protect all federal contractors. White House press secretary, Jen Psaki, stated that the Biden Administration proposed the requirements because “we know they work” in limiting the spread of COVID-19.
• A federal circuit court upheld a Centers for Medicare and Medicaid Services rule that requires workers in facilities that provide health care for Medicare and Medicaid beneficiaries to be fully vaccinated against COVID-19. The court reasoned that Florida—which opposed the rule—failed to demonstrate that the rule was invalid and that the state would face “irreparable harm” from the rule. The court concluded that the “last thing patients seeking medical help … should have to endure is the infliction of a potentially deadly virus on them by those who are supposed to be taking care of them.”
• The Biden Administration released the first ever United States Strategy on Countering Corruption. The report follows President Joseph R. Biden’s memorandum on corruption and national security, which called for the development of a “presidential strategy” based on the federal government’s review of its anti-corruption efforts. The strategy focuses on five pillars, which include “modernizing” the U.S. government’s approach to anti-corruption. The United States Agency for International Development praised the strategy and committed to provide additional support to governments and private actors toward their anti-corruption efforts.
• President Biden signed an executive order aimed at strengthening the U.S. government’s sustainability efforts. The executive order focused on five goals, including that the federal government should reach net-zero emissions by 2050. The Biden Administration also issued an accompanying plan detailing how the government plans to achieve these goals. The Biden Administration is attempting to restore the U.S. government as a “leader in sustainability.”
• The U.S. Food and Drug Administration approved the use of a single booster dose of the Pfizer-BioNTech COVID-19 vaccine for individuals aged 16 and 17 who completed their primary vaccination at least six months ago with the same vaccine. The director of the U.S. Food and Drug Administration’s Center for Biologics Evaluation and Research, Peter Marks, stated that the first two doses of the Pfizer-BioNTech vaccine have been approved for individuals aged 16 years and older for almost one year and noted that “its benefits have been shown to clearly outweigh potential risks.”
• The U.S. Department of Justice Antitrust Division, the Federal Trade Commission, and the European Commission launched a joint commitment between the European Union and the United States to promote fair competition for the benefit of consumers, businesses, and workers. The initiative includes agency plans to share insights on competition in a digital economy, brainstorm new forms of coordination and information exchanges between agencies, and increase the number of “high-level meetings” on competition enforcement arising in technology markets.
• U.S. Supreme Court Justice Steven Breyer declined to block temporarily a National Marine Fisheries Service rule that limits certain types of lobster fishing off the coast of Maine. The rule is meant to protect right whales—an endangered species of large whales—from becoming trapped in lobster fishing technology. Attorney for the Center for Biological Diversity, Kristen Monsell, reportedly stated that Justice Breyer was “right to reject this unfounded attempt to halt reasonable efforts to protect one of the planet’s most endangered animals.”

WHAT WE’RE READING THIS WEEK

• In a Brookings Institution report, Brink Lindsey argued that patent law should not be used to limit vaccines during a global pandemic. Lindsey acknowledged that one purpose of patents is to slow the spread of new ideas in the short term to encourage research and development for innovative and profitable ideas in the long term. But Lindsey rejected this tradeoff during the COVID-19 pandemic, noting that patents “slow the diffusion of innovation.” Instead of allowing the patent system to limit the sharing of medical information during a pandemic, Lindsey recommended direct public funding for vaccine research, development, and advance purchase agreements, which would still generously pay pharmaceutical companies for their efforts. Finally, Lindsey argued that a patent waiver for the COVID-19 vaccine should not discourage pharmaceuticals from making vaccines available because direct government support is one of “the most favorable incentives available.”
• In an article in the Vanderbilt Law Review, Christina Parajon Skinner, professor at The Wharton School of the University of Pennsylvania, argued that, despite the substantive importance of climate change, the Board of Governors of the Federal Reserve should not exceed its legal authority to address the issue. Although climate change may pose a significant economic concern, Skinner argued that the Federal Reserve lacks the authority to use its monetary policy tools to tackle climate change proactively through “offensive” programs. Skinner cautioned that the Federal Reserve risks its legitimacy, credibility, and institutional independence when exceeding its congressional mandate to promote “effectively the goals of maximum employment, stable prices, and moderate long-term interest rates.”
• In an article in The Yale Journal of Health Policy, Law, and Ethics, Medha Makhlouf, professor at Penn State Dickinson Law, discussed noncitizen access to health care and “immigration surveillance in health care.” Makhlouf defined immigration surveillance in health care as consisting of either immigration officers enforcing immigration rules at health care centers or authorities using personal information provided for health care purposes for other reasons, such as immigration enforcement or denial of immigration benefits. She explained that noncitizens fearing immigration surveillance commonly avoid seeking health care, which results in negative consequences for the health care system, such as increasing cost inefficiencies by making it more difficult for health care providers to deliver satisfactory outcomes. She concluded by proposing sanctuary policies, which are policies establishing long-lasting “legal protections against immigration surveillance in health care.”

FLASHBACK FRIDAY

• ​​In an essay in The Regulatory Review, Elizabeth J. Coleman—a poet, public interest lawyer, and environmental activist—advocated replacing fossil fuels with renewable energy resources to address climate change and create a more equitable planet. Referencing an anthology she edited, Here: Poems for the Planet, Coleman sought to inspire readers to tackle climate change with optimism for the future. Coleman argued that the United States can prevent the most severe environmental outcomes by limiting post-industrial temperature increases to 1.5 degrees Celsius through a robust national plan. In addition, Coleman highlighted the people, governments, and organizations that are working actively to address climate change, including U.S. Representative Alexandria Ocasio-Cortez (D-N.Y.) and U.S. Senator Ed Markey (D-Mass.), the originators of the Green New Deal.