Week in Review

IN THE NEWS.

• Senate Majority Leader Charles E. “Chuck” Schumer (D-N.Y.) is considering forcing votes on two pieces of gun control legislation meant to expand background checks in response to the school shooting in Uvalde, Texas. The Bipartisan Background Check Act would require background checks for those purchasing or transferring firearms in previously unregulated areas, such as gun shows. The Enhanced Background Checks Act would close a loophole that currently enables gun sales without background checks to proceed after three business delays have elapsed. The U.S. House of Representatives passed versions of both measures in 2019 and again in 2021.
• President Joseph R. Biden invoked the Defense Production Act (DPA), authorizing the U.S. Department of Agriculture and the U.S. Department of Health and Human Services to use Defense Department-contracted commercial aircraft to pick up overseas infant formula that meets U.S. Food and Drug Administration guidance and deliver it to the United States. Under DPA authority, President Biden also required infant formula suppliers to prioritize directing resources to manufacturers before individual customers. This operation is part of the Biden-Harris Administration’s continuing efforts to combat the formula shortage resulting from this year’s earlier recalls.
• The Biden-Harris Administration announced a $500 million program to replace school buses nationwide with zero-emission buses. The U.S. Environmental Protection Agency (EPA) will award funds to eligible bus operators and contractors, including school districts. The program is the first round of a larger $5 billion effort included in President Biden’s Bipartisan Infrastructure Law to fund low- and zero-emission school buses over the next five years. EPA Administrator Michael Regan declared that the program “will result in healthier air for many of the 25 million American children who rely on school buses, many of whom live in overburdened and underserved communities.”
• The Securities and Exchange Commission (SEC) proposed a rule to standardize disclosures about cybersecurity by public companies. The proposed rule would require public companies to disclose material cybersecurity events, updates about previously reported incidents, and policies and procedures for identifying and managing risks. The proposed rule would also require disclosure of relevant governance practices related to cybersecurity, including the role of board of directors and management in assessing and managing risks and implementing preventative and responsive strategies. With the proposed rule, the SEC aims to inform potential investors and other market participants of a company’s cybersecurity practices, which are particularly relevant because of the increasing significance of cybersecurity incidents in recent years.
• The Federal Communications Commission (FCC) voted to seek comment on a proposal to establish an enhanced model of broadband deployment, which would seek to promote higher speed goals for small rural broadband providers. The FCC created the model to help deploy broadband to rural areas of the United States by offering monthly support payments over a ten-year term to rural carriers in exchange for offering certain minimum broadband speeds. The enhanced model would enable faster broadband speeds in line with the federal Infrastructure Investment and Job Act’s benchmarks and improve efficiency and efficacy of the program.
• The U.S. Department of Justice announced updated guidance to mitigate gender bias in law enforcement efforts to combat sexual assault and domestic violence. The Justice Department’s new guidance built on its previous guidance, issued in 2015, that examined how gender bias can undermine the response of law enforcement agencies. The latest guidance provides eight basic principles for these agencies to follow and incorporated feedback to assess how gender bias “can intersect with other forms of bias to disproportionately affect survivors from marginalized communities.” In addition to the updated guidance, the Office on Violence Against Women launched a new website to assist law enforcement agencies in implementing the guidance.
• The U.S. Department of Labor issued new guidance on the Family and Medical Leave Act (FMLA) to allow leave for mental health treatment for individual eligible employees and their family members. The Labor Department cited statistics from the National Institutes of Health to estimate that “nearly one in five U.S. adults — or about 52.9 million people in 2020 — live with a mental illness, and that only about half receive the help needed.” The new guidance allowed eligible employees to take leave to care for adult children who require care due to a mental health condition.
• A federal district court judge blocked the Biden-Harris Administration’s attempt to lift immigration restrictions adopted by the Trump Administration under Title 42, a policy that effectively shut out asylum seekers and turned away migrants at the border since the start of the COVID-19 pandemic. The Centers for Disease Control and Prevention (CDC) had previously announced that the Trump Administration’s restrictions under Title 42 were to end on May 23, 2022, which would have allowed asylum seekers to enter the United States for the first time since early 2020. In halting the CDC’s plans, the district court judge agreed with several states that they would experience harm if the Trump-era order were to be lifted. The Justice Department announced its intention to appeal the district court’s decision.

WHAT WE’RE READING THIS WEEK

• In a working paper released as part of the Harvard Law School Public Law & Legal Theory Research Paper Series, Cass R. Sunstein, professor at Harvard Law School, discussed the democratic legitimacy of regulation in the United States and its possible methods of reform. Sunstein posited that there are four propositions that should serve as an anchor for regulatory reform. First, steps should be created to ensure that justified regulations are issued. Second, agencies should reduce or eliminate new, non-beneficial regulations. Third, Sunstein urged agencies to work to reduce or eliminate existing regulations that are “no longer, or never were, worthwhile,” such as paperwork requirements, waiting times, and in-person interview requirements. Finally, Sunstein argued that regulators, legislators, and academics must better understand how the effects of regulations are experienced by people in their everyday lives.
• In an article in the Yale Law Journal Forum, Anita Allen, Professor at the University of Pennsylvania Law School, described the “Black Opticon,” a term dubbed by Allen to describe three forms of discrimination that African Americans face online: discriminatory oversurveillance, discriminatory exclusion, and discriminatory predation. Allen recommended a set of race-conscious reforms under an “African American Online Equity Agenda,” including federal privacy and data protection measures that consider the interests of African Americans. Allen then evaluated several state and federal data privacy laws and proposals to assess their compatibility with this agenda, finding that the proposed federal Data Protection Act of 2021 is especially equity-conscious and sets a high bar for future legislation.
• In a Center for American Progress report, Marissa Edmund, gun violence prevention senior policy analyst, Alex Barrio, gun violence prevention advocacy director, and Nicole Golden, interim executive director of Texas Gun Sense, outlined actions local officials can take to stem gun violence in Texas. The authors proposed various recommendations, including addressing related systemic issues such as housing affordability, implementing programs for gun violence prevention in schools and homes, and establishing and promoting safe storage practices and programs.

EDITOR’S CHOICE

• In an essay published as part of a 2018 series on gun control in The Regulatory Review, Jennifer Doleac, an associate professor of economics at Texas A&M University, urged that policymakers should do more than just regulate to reduce gun-related harm. Doleac argued that, although some gun control measures look promising, policymakers could also pursue alternative paths to reducing gun-related violence that go beyond regulation. These alternatives include programs that would provide cognitive behavioral therapy for at-risk young men, legislative repeals of duty-to-warn laws for mental health providers, and efforts to expand health insurance to cover mental health benefits.