Week in Review

IN THE NEWS

• The U.S. Supreme Court upheld the Indian Child Welfare Act (ICWA) in a 7-2 decision, holding that the law was well-within Congress’s powers. The law seeks to keep Native American adoptees connected to their tribal community by placing the adopted children with Native families. Congress originally passed the ICWA in response to the long history of forced separation of Native children from their families and communities. Opponents of the ICWA argued that the law makes it more difficult for states to intervene in instances of child abuse. Supporters of the law, including the American Academy of Pediatrics, cited the ICWA as a means to repair “the intergenerational pain of lost connections and the trauma of historical loss.”
• The U.S. House of Representatives voted to consider the Separation of Powers Restoration Act of 2023, a bill which would eliminate Chevron deference by amending the scope of judicial review of agency actions. The Competitive Enterprise Institute predicted that the bill would “help restore constitutional order and reassert Congress’s role in writing the laws.” In contrast, the Coalition for Sensible Safeguards warned that the bill, if adopted, would invite “potentially sympathetic judges to substitute their own policy preferences in lieu of agencies’ reasoned decision-making.” President Joseph R. Biden has pledged to veto the bill.
• The U.S. House of Representatives voted to consider the REINS Act of 2023. If enacted, the REINS Act would require all new “major rules,” generally defined as those having a substantial effect on the economy, to be approved by both the House and the Senate before going into effect. The Competitive Enterprise Institute praised the bill as “one of the best tools to restore congressional accountability.” Some opponents, however, caution that the bill would severely hamper agencies’ ability to adopt necessary regulatory protections. President Joseph R. Biden has said he would veto the bill if it were to pass the House and the Senate.
• The U.S. Chamber of Commerce sued the U.S. Department of Health and Human Services (HHS) and the Centers for Medicare and Medicaid Services (CMS) over new measures in the Inflation Reduction Act (IRA). The U.S. Chamber of Commerce claimed that provisions in the IRA requiring CMS to negotiate prices of certain prescription drugs under Medicaid will limit drug innovation and may cause companies to “shelve promising new medical treatments,” threatening the production of approximately 400 new drugs. The complaint described the IRA provisions at issue as “mandated price controls” and an unconstitutional and “disastrous error of public policy.”
• The Department of Veterans Affairs (VA) proposed a new rule that would exempt its proposed Diversity and Equal Employment Opportunity Program Records system from certain provisions of the Privacy Act of 1974. The VA’s proposed exemptions would enable VA investigators to examine agency personnel records for information useful to ongoing investigations without notifying affected individuals. VA stated that these proposed exemptions are necessary to prevent interference with administrative investigations of harassment and sexual harassment.
• The Consumer Financial Protection Bureau (CFPB) Director Rohit Chopra published a blog post outlining CFPB’s perspective on “open banking” and explaining the CFPB’s plans to create and implement a personal data rights rule. Open banking allows for financial data to be shared between banks and third-party service providers, which is intended to give consumers the ability to get better-suited banking products and to switch products and banks more easily. Chopra explained that his agency’s forthcoming rule would be designed to give consumers control over their personal financial information and allow them to share their data as they choose. Chopra also stated that CFPB “must not micromanage” the creation and maintenance of the open banking system, but that “many of the details in open banking will be handled through standard-setting outside of the agency.” CFPB plans to solicit comments on its formal proposal in a few months and finalize its rule in 2024.
• President Joseph R. Biden’s Office of Management and Budget (OMB) released a statement backing new federal regulations for “stabilizing braces,” which can make pistols both more powerful and easier to conceal. In January 2023, the Bureau of Alcohol, Tobacco, Firearms and Explosives issued a final rule that classifies firearms with “stabilizing braces” as short-barreled rifles, which are more heavily regulated under federal law. House Republicans introduced a resolution in March that would overturn this rule, accusing the Biden Administration of executive overreach. Over the last decade, this accessory has been used in several mass shootings in the United States. OMB’s statement also noted that, if this resolution is adopted by Congress, President Biden will veto it.
• The U.S. Fish and Wildlife Service issued an interim rule amending the Captive Wildlife Safety Act to incorporate the requirements of the Big Cat Public Safety Act (BCPSA). The BCPSA was the first federal law aimed at the possession and breeding of big cats. The law prioritized animal welfare and targeted private ownership of big cats, which has grown in popularity with the proliferation of online big cat sales. The BCPSA also prohibited exhibitors from allowing public contact with the cats, including the practice of providing photo opportunities with cubs, as depicted in the popular Netflix series Tiger King. The interim rule is now open for public comment.

WHAT WE’RE READING THIS WEEK

• In a forthcoming article in the Indiana Law Journal, Marissa C. Meredith, an assistant professor at Duquesne University Kline School of Law, examined the unregulated nature of the online dating world and its safety implications. Meredith cited Section 230 of the Communication Decency Act, which immunizes websites from liability for user-generated content, as a barrier to effective regulation of the “online love industry.” State regulation is also limited, Meredith noted, which leaves users of dating sites with only reactive reporting measures. Meredith proposed potential self-regulation safety protocols for dating app companies to address the current dangers of online dating most quickly, including screening for violent offenders across apps.
• In a recent working paper, Laura Dague, a research associate at Texas A&M University, and Benjamin Ukert, an assistant professor at Texas A&M University, studied the impact of Medicaid rule changes related to COVID-19 on Medicaid enrollment. In March 2020, Congress increased the federal share of Medicaid funding on the condition that states not remove beneficiaries. As a result, the researchers found that Medicaid enrollment grew in every state, ranging from 17 percent to 77 percent growth between 2020 and 2023. In April 2023, however, the Centers for Medicare and Medicaid Services mandated that states initiate review of all beneficiaries within 12 months, a process popularly known as the “unwinding.” Dague and Ukert propose that future researchers should further study the impact of continuous eligibility, the effectiveness of increased Medicaid spending as a fiscal stimulus, and how researchers should treat data from this period in future long-run studies.
• In a Brookings Institution report, Mark MacCarthy, a nonresident senior fellow in Governance Studies at Brookings, explained that transparency is essential in creating a regulatory structure for social media companies. He noted that increased transparency would include disclosures to users, public reporting, and access to data for researchers. For transparency requirements to be effective, however, MacCarthy argued that a dedicated federal regulator is needed. Unlike Congress, a regulator would be able to specify what details must be included in disclosures and would have the ability to vary these requirements based on the company or industry. MacCarthy argues that when companies knowing they are under a regulator’s watch, they will take steps to mitigate problems to reduce their reputational risks and improve content moderation. MacCarthy also concluded that the information gathered from a dedicated regulator would be beneficial for informing future regulation of this industry.pu

EDITOR’S CHOICE

• In an essay in The Regulatory Review, Robert Espinoza, the Executive Vice President of Policy at the Paraprofessional Healthcare Institute, advocated policies to benefit older LGBTQ+ adults. Espinoza identified the lack of uniform anti-discrimination protections across the country as the most challenging policy barrier to fair treatment for older members of the LGBTQ+ community. Espinoza also highlighted the need for greater funding for LGBTQ+ specific aging services and called on policymakers to pass the Equality Act to address discrimination in housing, long-term care, and health care.