Week in Review

IN THE NEWS

• The U.S. Court of Appeals for the Ninth Circuit held that a California law banning private, for-profit prisons likely violates the U.S. Constitution. The law was designed to phase out any contracts with private prisons by 2028. The Ninth Circuit noted that “virtually all” of Immigration Customs and Enforcement’s (ICE) detention facilities in the state are privately run. The court reasoned that the law would require ICE to drastically alter its operations in California. The court concluded that the law violates the Supremacy Clause by giving the state too much control over the operations of ICE, a federal agency.
• President Joseph R. Biden announced two new U. S. Department of Agriculture (USDA) initiatives to address anticompetitiveness in the agricultural sector. These initiatives include a proposed rule to protect farmers and ranchers facing discrimination or retaliation from meat companies. Under the second initiative, USDA would help state attorneys general investigate and curtail anticompetitive behavior in the food and agricultural sector that may be contributing to inflation. U.S. Secretary of Agriculture Tom Vilsack noted that such behavior “harms producers’ ability to deliver the quality, affordable food working families depend upon.”
• California Governor Gavin Newsom vetoed a bill that would have mandated kindergarten attendance for students throughout the state. Under this policy, California would have joined 20 other states with compulsory kindergarten education. In his veto message to the California State Senate, Newsom praised the bill authors’ positive intentions but noted that the state’s budget did not account for the bill’s financial cost. Newsom emphasized that he was prioritizing the state’s existing financial obligations under the approved budget.
• The U.S. Environmental Protection Agency (EPA) announced the creation of a new office dedicated to protecting civil rights and advancing issues of environmental justice. The Office of Environmental Justice and External Civil Rights was created to address community issues of environmental justice, which EPA defines as the “fair treatment and meaningful involvement” of all individuals concerning the development and implementation of environmental legal rules. The new office will enforce federal civil rights laws to advance these aims. EPA Administrator Michael S. Regan applauded the new office as showing marginalized communities EPA will take “action to solve the problems they’ve been facing for generations.”
• The Federal Communications Commission (FCC) proposed new rules to limit “scam and spam text messages” from computer-generated sources. The rules would require mobile phone providers to block text messages that come from numbers that are unused or invalid. The rules would further the FCC’s ongoing efforts to limit robocalls. FCC Chairwoman Jessica Rosenworcel characterized malicious scam text messages as a “growing threat to consumers’ wallets and privacy” and noted that the proposed rules are the formal start to a comprehensive effort to strengthen FCC policies on spam messages.
• The Food and Drug Administration (FDA) announced a proposed rule to update the definition for labeling food products as “healthy.” The proposed rule would require that the updated definition align with current nutrition science practices and standards, such as those noted in the Dietary Guidelines for Americans. The new definition would require minimum amounts of various food groups such as vegetables or fruits, and limit sugar, sodium, and saturated fat to certain percentages of daily value. Secretary of the U.S. Department of Health and Human Services Xavier Becerra noted that this rule would “improve health outcomes, tackle health disparities, and save lives.”
• The U.S. Centers for Disease Control and Prevention (CDC) issued interim guidance stating that health care settings do not need to require masking when transmission levels of COVID-19 are not high, according to its community transmission metric. The CDC clarified that masks are still recommended for universal use in health care settings in times of high transmission. The guidance continued to recommend vaccination to all patients, visitors, and health care personnel.
• The Department of Homeland Security (DHS) approved a waiver of the Jones Act for a shipment of diesel to Puerto Rico to help the island recover from Hurricane Fiona. The Act allows only U.S.-flagged ships to transport goods to Puerto Rico. DHS Secretary Alejandro N. Mayorkas called the waiver “temporary and targeted” to supply the people of Puerto Rico with diesel for electricity during recovery efforts.

WHAT WE’RE READING THIS WEEK

•  In a Center for American Progress report, Alex Fredmen, a former research assistant at American Progress, argued that government regulators must do more to address the risk that climate change poses for the insurance industry. Fredmen noted that devastating fires and floods are occurring with increasing frequency, threatening insurance companies’ financial health. Fredmen emphasized that insurance companies cannot be trusted to take necessary action on their own. Fredman contended that regulators, primarily at the state level, must act to ensure that companies mitigate the growing risk of climate change. Fredmen explained that regulatory action is necessary to preserve the availability of insurance for individuals living in areas at a higher risk for climate-related disasters.
•  In a Center for American Progress report, Emily DiMatteo, a policy analyst for the Disability Justice Initiative, and several coauthors highlighted the limitations that guardianships place on disabled people’s ability to access reproductive health care. DiMatteo and her coauthors critiqued guardianship, noting a court-ordered guardianship often substitutes the “best interests” of the disabled person instead of supporting their actual interests. DiMatteo and her coauthors further noted that in some cases a disabled person may not have the legal ability to consent to sex, procreate, or receive an abortion. To address this, DiMatteo and coauthors recommended a federal bill of rights for people under guardianship, state code reform to include mandated guardianship trainings for attorneys, and federal changes to the Americans with Disabilities Act that would consider a disabled person’s wishes.
• In an article in the Yale Journal on Regulation, Hari M. Osofsky, dean of Northwestern Pritzker School of Law, and Jacqueline Peel, Melbourne Law School professor, examined the relationship between polarization and climate change regulations in the United States and Australia. Osofsky and Peel argued that the United States relied more heavily on regulation due to partisanship, which makes it difficult to pass legislation. Osofsky and Peel noted that U.S. federal regulatory actions shifted with changes in presidential administrations, while Australia remained in “entrenched inaction” on climate regulations over the same period. Osofksy and Peel concluded that despite differences in government structure, both countries made little progress in advancing climate regulation, which highlights the need for strategies to reduce partisanship and inaction.

EDITOR’S CHOICE

• In an essay in The Regulatory Review, Rohit Chopra, director of the Consumer Financial Protection Bureau, discussed the need for structural deterrents to large financial firms who repeatedly violate the law. He argued that monetary fees are not enough to deter these firms, but asset caps, which limit the amount of assets a firm can acquire, might reduce the incentive to break the law. Chopra noted that regulators have sought such limitations on small businesses, but have been hesitant to apply them to large firms. Chopra’s view is that large financial firms should not be able to evade consequences of breaking the law, and moving beyond purely monetary penalties may begin to change firms’ behavior.