Week in Review

IN THE NEWS

• President Joseph R. Biden announced his intention to nominate environmental and regulatory law scholar Richard Revesz to lead the Office of Information and Regulatory Affairs (OIRA). OIRA, which sits within the Office of Management and Budget, reviews and oversees the implementation of rules and regulations drafted by federal agencies. Experts predict Revesz’s past defenses of the rulemaking process suggest he would bring a moderate approach to the new role rather than pursuing large-scale reforms. In a press release announcing the decision, the Administration emphasized Revesz’s extensive legal scholarship “advocating for protective and rational climate change and environmental policies.”
• The federal court in Texas ruled against the U.S. Department of Health and Human Services and in favor of Braidwood Management, a Christian for-profit, finding that the Affordable Care Act’s PrEP coverage mandate violates the Religious Freedom Restoration Act. The mandate requires health insurers to provide coverage for preventative care, including PrEP, which prevents the contraction and transmission of HIV. The court found that the Affordable Care Act’s PrEP mandate violated Braidwood’s freedom of religious exercise due to the owner’s religious beliefs opposing same sex intercourse and view that providing PrEP coverage would be a sign of support for same sex intercourse.
• The U.S. Department of Veterans Affairs announced that it submitted an interim final rule that will allow the Department’s healthcare facilities to provide veterans and other beneficiaries access to abortion services. These services will include abortion counseling and, in cases involving rape, incest, or risks to the health of the veteran or beneficiary, abortion procedures. U.S. Secretary of Veterans Affairs Denis McDonough noted that the individuals served by the department “deserve to have access to world-class reproductive care when they need it most.”
• The Federal Aviation Administration (FAA) issued a final policy that requires aviation manufacturers to investigate and report any allegations of interference with safety inspections conducted through the Organization Designation Authorization program. The program allows industry employees to conduct and oversee certain inspections, such as certifying that design changes meet safety standards, on behalf of the FAA. The new policy requires anonymous surveys as part of an effort to eliminate conflicts of interest and encourage inspection independence.
• The Department of Homeland Security (DHS) issued a final rule that amended the public charge definition used in determining if an immigrant can enter the United States. A noncitizen is inadmissible if they are determined to be a public charge, a person likely to become dependent on government assistance. The rule clarifies that non-cash public benefits, such as Medicaid, cannot be considered in the agency’s public charge inadmissibility decision. U.S. Citizenship and Immigration Services director Ur M. Jaddou noted the agencies will work to “restore faith and trust with our immigrant communities, and eliminate excessive burdens in the application process.”
• The FCC released a notice of a potential incoming draft notice of proposed rulemaking intended to improve the security of emergency alert systems. If the FCC proceeds with a notice of proposed rulemaking, the proposed rules would require emergency alert system participants to report any system compromises and validate alerts that display on consumer devices. Jessica Rosenworcel, FCC Chairwoman, noted that due to the systems’ roles in alerting the public to weather crises and missing children, “it is critical that these public safety systems are secure against cyber threats.”
• The U.S. Consumer Product Safety Commission released a new safety standard for magnet sets to address the incidences of internal injuries from swallowing these magnets. The rule will require the magnets in these sets to be either too large for a person to swallow or weak enough in magnetism to lessen the risk of internal injuries if swallowed. The Commission noted that incidents of magnet ingestion have been increasing annually and urged individuals to discard the less safe magnets currently on the market to protect children from ingesting them.
• Lambda Legal and Southern Legal Counsel, in partnership with the National Health Law Program and Florida Health Justice Project, filed a lawsuit in a federal district court on behalf of four transgender plaintiffs challenging a Florida rule that prohibits the use of Medicaid to finance gender-affirming care. The rule could prevent thousands of Florida residents from receiving medical treatment of gender dysphoria. The plaintiffs argued the rule violates the U.S. Constitution, the prohibition on sex discrimination within the Affordable Care Act, and various Medicaid provisions requiring equitable medical services for all qualified individuals.

WHAT WE’RE READING THIS WEEK

• In a Journal of Financial Regulation working paper, University of Pennsylvania professors Brian D. Feinstein and Kevin Werbach examined the effects of cryptocurrency regulations on market trading volume. Feinstein and Werbach argued that their analysis of market data from several jurisdictions suggested that although announcements of regulatory actions have increased in recent years, there has been little to no effect on market trading activity. The authors concluded that apprehension about decreasing trade volume or significantly affecting prices should not be primary considerations for crypto regulatory decisions.
• In a Brookings Institution report, Andre M. Perry, senior fellow at the Brookings Institution, argued that the Biden-Harris Administration’s student loan cancellation program does not address many of the systemic issues facing borrowers. Perry argued that rather than using an income limit of $125,000 for eligibility purposes, wealth, defined as a person’s assets minus their debt, should be used to provide better opportunities for families who have not been able to grow or inherit wealth because of discrimination. Additionally, he pointed to the rise in costs of college tuition as one of the most significant issues that the Administration’s loan plan does not address. He proposed that the long-term solution is to provide a universal public option for four year colleges and address the issues of discrimination and tuition prices now instead of “kicking the can down the road.”
• In a Center for American Progress report, Maureen Coffey, a policy analyst at American Progress, and Rose Khattar, associate director at American Progress, argued that staff shortages in the childcare sector resulting from the pandemic will continue until better quality jobs emerge. Khattar and Coffey noted that these shortages harm the economy by forcing parents who are struggling to find childcare to leave the workforce or be less productive workers. Khattar and Coffey contended that ending the shortage will require Congress to increase the amount of funding given to states in grants for childcare programs. The authors also recommended that states ensure that the reimbursement grants they provide to childcare centers serving low-income families accurately reflect the true cost of care.

EDITOR’S CHOICE

• In an essay in The Regulatory Review, Richard Revesz, AnBryce Professor of Law and dean emeritus of New York University School of Law and President Biden’s nominee to head OIRA, emphasized the wide-ranging positive impacts of President Biden’s executive memorandum on modernizing the regulatory review process. Resevz contended that the memorandum promoted justice and equity in the rulemaking process by encouraging OIRA to take a more proactive role in encouraging agencies to enact socially beneficial regulations. Resevz asserted that the memorandum “opens the doors to significant reform while keeping the core architecture of regulatory review in place.”