Week in Review

IN THE NEWS

• The U.S. Supreme Court restricted the ability of federal courts to review facts from immigration proceedings in which the Attorney General has discretion to grant a lawful permanent resident status to a person who illegally entered the United States. Writing for the majority, Justice Amy Coney Barrett stated that “federal courts have a very limited role to play” in these proceedings but wrote that courts may still review legal and constitutional questions. Justice Gorsuch and three others dissented, reasoning that the majority’s ruling will have “dire consequences for countless lawful immigrants” and admonished that the majority’s holding strips federal courts of their ability to fix obvious bureaucratic errors “no matter how grave they be.”
• The Supreme Court also held that a provision of the Bipartisan Campaign Reform Act, which restricted the use of post-election funds, violated the First Amendment. Candidates for federal office are permitted to loan money to their campaigns, but Section 304 of the Act established a $250,000 cap on repayment of candidate loans using fundraised dollars after an election. Senator Ted Cruz (R-Texas) and his campaign committee challenged Section 304 after the provision blocked total repayment of a $260,000 loan he made to his campaign, leaving Cruz with a $10,000 expense. The Court reasoned that because Section 304 is not a necessary measure to prevent corruption, it placed an unconstitutional burden on First Amendment freedom of electoral speech. Justice Elena Kagan and two others dissented, stating that striking down the law creates a “heightened risk of corruption” by enabling “‘I’ll make you richer and you’ll make me richer’ arrangements between donors and officeholders.”
• As part of its ongoing response to the nationwide infant formula supply shortage, the U.S. Food and Drug Administration (FDA) issued guidance that temporarily provides greater flexibility regarding the importation of certain formulas. The guidance announced FDA’s intention to apply discretion when enforcing certain labeling and manufacturing requirements for formulas that otherwise meet FDA safety and nutrition standards. FDA Commissioner Robert Califf explained that the guidance “paves the way for companies who don’t normally distribute their infant formula products in the United States to do so efficiently and safely.”
• FDA also granted an emergency use authorization of the Pfizer-BioNTech COVID-19 single-dose booster vaccination for children aged 5 to 11. FDA explained that it made its decision by studying immune response and safety data in children who had received the booster during trials and finding that its benefits outweighed the risks. The Centers for Disease Control and Prevention needs to also authorize the Pfizer booster before children aged 5 to 11 can receive their shots.
• The Fifth Circuit Court of Appeals ruled that the U.S. Securities and Exchange Commission’s (SEC) use of internal judges is unconstitutional. The majority held that the use of administrative law judges violated the Seventh Amendment right to trial by jury and that Congress, in delegating enforcement power to the SEC, failed to provide proper guidance on when and how the SEC could use that power. The majority also held that restrictions on presidential removal of these judges were unconstitutional. One judge dissented, stating that SEC enforcement actions were within the realm of acceptable administrative proceedings that could avoid the constitutional requirements imposed by the majority.
• A California state judge ruled that California’s board gender diversity law—which required state-headquartered companies to place women on their boards of directors—violated the equal protection clause of the state constitution. The judge held that the state failed to prove that making a gender-based distinction was necessary to serve a government interest and that interests such as improving the state economy and increasing opportunities for women were not compelling enough to justify the distinction. State senate leader Toni G. Atkins (D), co-author of the bill, called the ruling “disappointing” and said that “more women on corporate boards means better decisions and businesses that outperform the competition.”
• The U.S. Department of Housing and Urban Development (HUD) proposed a rule to reduce mortgage insurance premiums for green and energy efficient healthcare facilities. The proposed rule would require healthcare facility owners to provide evidence that their facility will receive an industry-recognized green building certification, such as LEED or Enterprise Green Communities, and achieve a favorable Energy Star score to qualify for the rate reduction. Consistent with the Biden Administration’s climate priorities and HUD’s climate action plan, the proposed rule aims to encourage resource efficiency.

 WHAT WE’RE READING THIS WEEK

• In an article published by the Harvard Law Review as part of its series on Developments in the Law of Climate Change, authors explored the uncertain legal status of carbon tariffs under international trade and environmental law. The authors explained that carbon tariffs “level the playing field” between countries by penalizing importers of regulated carbon emissions who do not themselves regulate carbon, and therefore concluded that they create a promising policy tool to encourage more widespread climate action. But the authors also found that carbon tariffs lack precedent and cohesive scholarly support, leaving ambiguous the likelihood that carbon tariffs could overcome potential legal challenges.
• In an article in GeoHealth, Nicholas A. Mailloux, doctoral candidate at the University of Wisconsin-Madison, and his coauthors explained that over 53,000 premature deaths could be saved if the United States implemented clean energy policies. Mailloux and his coauthors also projected that a U.S. clean energy transition would save the U.S. economy approximately $600 billion from deaths caused by fine particulate matter from air pollution. Mailloux and his coauthors stressed that health impact modeling plays an important role in providing insight into decarbonization efforts as a means to understand the cumulative benefits of policy decisions.
• In an article in the Northwestern Pritzker School of Law Journal of Criminal Law and Criminology, Trevor G. Gardner, professor at Washington University in St. Louis School of Law, and Esam Al-Shareffi outlined the state of regulation of police use of chokeholds and proposed policies to restrict police use of these chokeholds. Gardner and Al-Shareffi recommended that all states adopt policies to regulate police use of chokeholds and municipalities should step up to fill gaps or strengthen existing state policies and advocate for a complete bar on chokehold use for suspects fleeing or not posing an immediate threat to the public. Gardner and Al-Shareffi urged, however, that concepts of criminal law minimalism dictate that improper use of chokeholds should be prosecuted under existing criminal assault statutes and that additional codes should not be created to criminalize chokehold use because such codes would be superfluous.

EDITOR’S CHOICE

• In an essay in The Regulatory Review, Ilya Somin, professor at the George Mason University Antonin Scalia Law School, argued that legal restrictions on immigration harm immigrants as well as U.S. citizens. Somin explained that immigrants or the children of immigrants are responsible for many U.S. innovations, such as COVID-19 vaccinations, and that many other immigrants significantly contribute to the U.S. economy. Somin also outlined how laws that police undocumented migrants pose an unavoidable threat to “the civil liberties of all Americans.”