Week in Review

IN THE NEWS 

• The U.S. Department of Health and Human Services (HHS) announced three proposals that HHS will test to lower prescription drug prices. The proposals reflect HHS’s response to President Joseph R. Biden’s executive order directing the agency to select models that would likely increase people’s access to new drug therapies at lower costs. HHS’s proposals included capping generic drugs at $2 for Medicare recipients, creating a payment process for drugs approved under accelerated approval process, and partnering with manufacturers to make gene and cell therapies more affordable.
• The U.S. Department of Homeland Security and the U.S. Department of Justice proposed a new rule to deter migrants from dangerous border crossings. Under the proposed rule, individuals would not be eligible for asylum in the United States if they have not first taken advantage of the already available pathways to lawful migration. The rule contains exceptions for individuals who face credible threats to their safety or who were victims of human trafficking. Secretary of Homeland Security Alejandro N. Majorkas noted that these lawful procedures prevent individuals from risking “their lives traversing thousands of miles in the hands of ruthless smugglers.”
• The Federal Communications Commission (FCC) proposed rules to help block illegal scam text messages from reaching consumers. If adopted, the rules would require cellular service providers to block text messages from invalid numbers and numbers that are registered as unable to send text messages, such as government phone numbers. The rules would also allow the Do-Not-Call Registry—which prevents marketers from calling people who register—to protect consumers from text messages by prohibiting text messages as well as calls. FCC Chairwoman Jessica Rosenworcel stated that the FCC will continue to pursue anti-spam measures to combat the “growing consumer threat” of these often daily spam messages.
• The National Labor Relations Board issued a decision holding that employers cannot require employees to refrain from making disparaging statements about a company as part of a severance agreement. This decision reverses prior Board decisions from 2020, which had upheld similar clauses in severance agreements. Board Chairman Lauren McFerran noted that the decision “restores longstanding precedent” that employers cannot force employees to “choose between receiving benefits and exercising their rights under the National Labor Relations Act.”
• The U.S. Environmental Protection Agency (EPA) issued a final rule revising emissions standards under the Clean Air Act for lead acid battery manufacturing. The rule adds compliance requirements such as performance testing machinery every five years for efficiency and increased inspection frequency by the agency. The rule also reduces lead emissions by requiring continuous emissions monitoring systems and reporting excess lead emissions during battery manufacturing to EPA, the agency noted.
• The U.S. Department of Treasury and Internal Revenue Service (IRS) issued final regulations that require certain businesses—those that file more than 10 returns in a calendar year, lowering the previous threshold of 250— to begin filing their returns electronically in 2024. The rule also eliminates a previous exception to the online filing requirement for corporations with under $10 million in assets. The IRS noted that in 2019, it had “still received nearly 40 million paper information returns.”
• The Seattle City Council passed an ordinance banning discrimination on the basis of an individual’s caste—a hereditary status that creates social division. The ban prohibits caste discrimination in public accommodations, workplace conditions, and housing. Seattle Councilmember Kshama Sawant noted that caste discrimination crosses borders and affects “immigrant working people in their workplaces” across the United States.
• The Laguna Beach City Council in California passed an ordinance that will ban the use of balloons on public property and at city events beginning in 2024. The council noted that latex and Mylar balloons are the most common forms of floating garbage on American shores and stressed that plastic balloon pollution threatens coastal wildlife given that wildlife often mistake this debris as food. Some environmental advocates have compared the balloon debris to single-use plastic bags as preventable forms of coastal pollution.

WHAT WE’RE READING THIS WEEK

• In an Urban Institute report, Andreea Matei, policy associate at the Urban Institute, outlined solitary confinement’s negative effects on prison populations and urged carceral institutions to stop using the practice. Matei noted that prisons commonly use solitary confinement, where inmates are isolated from others for an average of 22 hours a day, to protect an inmate’s safety or to preserve order in prisons. But Matei pointed to research indicating that solitary confinement contributes to anxiety, paranoia, eyesight and joint deterioration, and increases recidivism rates. Matei encouraged states that may not be willing to consider banning solitary confinement to improve their solitary confinement practices, such as by eliminating sensory deprivation in confinement or including access to rehabilitative programming during confinement.
• In an article in the Environmental Law Review, Daniel J. Rohlf, professor at Lewis & Clark Law School, and Colin Reynolds, project manager at Wildlands Network, argued that federal agencies should broaden their interpretations of the Endangered Species Act. Rohlf and Reynolds explained that the Act bans all federal actions that “jeopardize the continued existence” of species that agencies classify as endangered. Federal agencies currently authorize proposed federal actions, such as construction projects or any physical change to a species’ natural habitat, that inflict incremental damage to endangered species habitats, Rohlf and Reynolds observed. Instead, Rohlf and Reynolds contended, agencies should adopt a “no net loss” approach to listed endangered species when assessing such actions, which means declining authorization if a species population in the area of the project will decrease at all as a result of the project. Rohlf and Reynolds concluded that if agencies strengthened their interpretations of the Endangered Species Act, they would address mounting threats to biodiversity better.
• In a forthcoming article in the William & Mary Business Law Review, Jerry Markham, a professor at Florida International University College of Law, argued that the Securities and Exchange Commission (SEC) may have exceeded its authority by bringing enforcement actions against celebrities who received undisclosed payments for endorsing cryptocurrency companies. Markham contended that the major questions doctrine—the proposition that agencies may not regulate certain economically and politically significant matters absent explicit authorization from Congress—should apply to cryptocurrency regulation because these regulations are a matter of national importance. Markham concluded that the SEC acted in violation of the major questions doctrine because it undertook action without clear authorization from Congress.

EDITOR’S CHOICE

• In an essay in The Regulatory Review, Amal Bass, interim co-executive director of the Women’s Law Project, addressed the lack of governmental oversight for crisis pregnancy centers (CPCs) and urged states to direct public funding away from CPCs. Bass explained that CPCs usually offer pregnancy testing, anti-abortion counseling, and free infant supplies, all contingent on completing CPC programs. CPCs do not, however, provide medical services or have Health Insurance Portability and Accountability Act (HIPAA) privacy protections, and instead often provide medical misinformation, Bass warned. Bass encouraged states that provide state funding to CPCs to pass laws that create privacy protections, such as state equivalent HIPAA laws, for CPCs and redirect funding from CPCs to evidence-based reproductive health care.