Week in Review

IN THE NEWS

• The U.S. Supreme Court unanimously held that the Medicare Prescription Drug, Improvement, and Modernization Act of 2003 does not preclude judicial review of annual reimbursement rates for outpatient drugs. A group of hospitals challenged the 2017 decision by the U.S. Department of Health and Human Services (HHS) to cut reimbursement rates for specific drugs, a decision that the Court noted cost affected hospitals approximately $1.6 billion annually. The Court held that because HHS failed to conduct a required survey of hospitals’ acquisition costs, it was not permitted to change these reimbursement rates.
• The Centers for Disease Control and Prevention (CDC) lifted its COVID-19 testing requirement for international travelers entering the United States. Although most non-U.S. citizen nonimmigrants still must be fully vaccinated to enter the United States, the CDC rescinded its prior requirement that all air passengers aged 2 or above show a negative COVID-19 test result or documentation of recovery from COVID-19 before boarding a flight to the United States. The CDC stated that it made its decision in light of available and effective treatment and prevention measures and because of a reduction in severe COVID-19 cases.
• The Federal Reserve raised interest rates by three-quarters of a point, the largest rate increase since 1994. The Federal Reserve, by raising interest rates, aimed to reduce demand and combat inflation, which reached 8.6 percent in May, the largest 12-month increase since 1981. The U.S. Bureau of Labor Statistics estimated that energy, groceries, and shelter costs all contributed to the high inflation rates, and the Federal Reserve noted that Russia’s invasion of Ukraine and COVID-19-related supply chain issues in China have also contributed to the heightened rates. The Federal Reserve also stated that it hopes this increase will help it achieve its goals of promoting maximum employment and bringing inflation to the rate of 2 percent in the long run.
• An advisory committee of the U.S. Food and Drug Administration (FDA) unanimously recommended the approval of the Moderna coronavirus vaccine for children and adolescents ages 6 to 17.
• Ohio Governor Mike DeWine signed a bill into law that will allow teachers and other school employees to carry guns in school safety zones if they completed up to 24 hours of training and receive the relevant permit by the school board. Ohio’s legislators wrote that they intend the law will “expressly overrule” Gabbard v. Madison, an Ohio Supreme Court decision that required basic police-officer training or 20 years of experience as a peace officer to carry firearms in school safety zones, a situation in which Governor DeWine called “impractical” for schools. The law also appropriated funds to establish an Ohio school safety crisis center and mobile training teams, which will assist with development and implementation of security protocols, training, and tactical emergency medical services. The law passed despite opposition from groups such as the Ohio Federation of Teachers and the Ohio Education Association, as well as a former commander for the Columbus Division of Police.
• The U.S. Department of Labor issued guidance to prevent abuses of prospective temporary migrant workers. The Labor Department explained that its guidance is part of a multi-agency effort to increase participation in visa programs that authorize employment for temporary and seasonal agricultural workers and “mitigate vulnerabilities” that these visa programs create for workers. The guidance provided standards to govern all stages of the recruitment process, respect collective bargaining efforts, and ensure working conditions are outlined in a language the workers understand.
• The U.S. Environmental Protection Agency (EPA) announced $6.5 billion in funding for its Water Infrastructure Finance and Innovation Act and State Infrastructure Financing Authority programs. The funding, which will be distributed as loans, is part of EPA’s $13 billion effort to improve water infrastructure nationwide, which the EPA projected will create 40,000 jobs. Radhika Fox, assistant administrator for EPA’s Office of Water, said the programs “can help revitalize our water systems while creating good paying jobs and delivering significant economic benefits, especially in underserved and overburdened communities.”
• The U.S. Department of Transportation opened applications for states to apply for funding from its Bridge Investment Program. The U.S. Congress established the program through the Bipartisan Infrastructure Law to invest billions in bridge replacements, preservation, and rehabilitations nationwide. Transportation Secretary Pete Buttigieg called the program “one of the most significant investments in our bridges in decades.” The Transportation Department projected that the increased funding will support the national economy and revitalize regional and local communities.

WHAT WE’RE READING THIS WEEK

• In an article in the Administrative Law Review, Richard J. Pierce, professor at The George Washington University Law School, argued that the Supreme Court should stop using its shadow docket—referring to the Supreme Court’s ability to allow or block the government from taking action without providing any explanation or reason for its decision. Pierce explained that the Supreme Court uses the shadow docket to provide emergency rulings with minimal, if any, briefing and without a hearing. Those lower court decisions, Pierce continued, usually remain in effect until the courts decide the legality of the government action. But Pierce contended that the Supreme Court has been using the shadow docket by taking actions “that have a wide variety of permanent, major effects without ever providing any explanation for its actions.” Pierce, however, identified recent examples of Court actions that he found “encouraging” and that potentially indicate that the Court may reduce or discontinue its use of the shadow docket.
• In a study published in Regulation & Governance, Alberto Asquer, senior lecturer at SOAS University of London and Inna Krachkovskaya, research associate at SOAS University London, compared the European Union’s and the United States’ regulatory responses to CRISPR gene editing and proposed a new model for regulatory development. Asquer and Krachkovskaya presented a cyclical model of technology and regulation as a feedback loop in which regulations are created and adjusted in response to new technologies, which in turn stimulates the production of more technology. Asquer and Krachkovskaya posited that, on one hand, emerging technologies should not be held back by existing frameworks of regulation, but on the other hand regulations themselves should change to anticipate emerging technologies and their impacts.
• In an article in the Yale Journal on Regulation, Daniel Richman, a law professor at Columbia Law School, argued that a critique of administrative agency-defined crimes, also known as “administrative crimes,” contending that such crimes are unconstitutional delegations of congressional authority does not carry over neatly to other areas of federal criminal law. Richman explained that a small subset of federal criminal prosecutions are for offenses defined by administrative agencies. Richman noted that in Gundy v. United States, some Supreme Court Justices expressed a willingness to reshape long-standing principles about when Congress can delegate authority to administrative agencies. In the context of federal criminal law, however, Richman argued that Congress often delegates crime-definition powers to government institutions, including courts and state governments, in addition to agencies. Richman discussed how eliminating this particular delegation to agencies would have only a limited effect on criminal justice. Richman concluded that the judiciary is not necessarily the most competent institutional actor for policing congressional delegations of crime-definition authority, because such delegations involve highly contested values, including liberty, federalism, and accountability.

EDITOR’S CHOICE

• In an essay in The Regulatory Review, Eric Cervone, a lawyer and podcaster who writes about free speech issues, discussed Justice Thomas’s concurrence in the U.S. Supreme Court’s ruling in Biden v. Knight First Amendment Institute. Writing alone, Justice Thomas argued that social media platforms have unprecedented private control over speech, including speech by government actors. Cervone noted that states’ responses vary as to the implications of a social media platform’s level of control on viewpoint discrimination. Cervone argued that this debate will be resolved in the courts unless changes occur in the state of political discourse or in how social media companies operate. Cervone concluded that the Supreme Court is unlikely in the foreseeable future to limit the independence of these social media platforms.