Week in Review

IN THE NEWS

• President Joseph R. Biden signed the Providing Accountability Through Transparency Act of 2023 into law. The law requires all agencies to include a “100-word plain language summary” of the proposed rule when issuing a notice of a proposed rulemaking, which is the official document announcing and explaining an agency’s plan to achieve a particular goal or address a problem. A bipartisan coalition introduced the law, declaring that it  would offer a “uniform and universally accessible standard” for agencies to communicate their policies, and promote the public’s ability to offer “useful feedback” and participate fully in the notice and comment process.
• A federal judge in California blocked a Biden Administration rule that bars migrants who crossed into the United States from applying for asylum unless they entered the country at an official port of entry or obtained asylum protection in a different country. The judge explained that the rule is illegal because it presumes that migrants are ineligible for asylum if they do not enter the country at an official legal border crossing, a factor that Congress has said should not affect eligibility. When the Administration adopted the rule, Secretary of Homeland Security Alejandro Mayorkas stated that the Biden Administration “has led the largest expansion of legal pathways for protection in decades, and this regulation will encourage migrants to seek access to those pathways.”

• A federal judge struck down a law in Arizona that limited how close people can get to the police when filming them. The law would have made it illegal to film police within eight feet of law enforcement activity if the officer asks the individual to stop filming. The American Civil Liberties Union challenged the law and urged the court to prevent the law from going into effect. The district court judge held that the law “prohibits or chills a substantial amount of First Amendment protected activity and is unnecessary to prevent interference with police officers given other Arizona laws in effect.”
• The Biden Administration proposed a new rule aimed at expanding insurance coverage for mental health care. The proposal requires insurers to study whether they are providing “inadequate access” to mental health services. Insurers not providing adequate mental health benefits will need to take remedial action to ensure compliance with The Mental Health Parity and Addiction Equity Act, which mandates that insurers cover mental health care benefits to the same extent that they cover physical health care benefits.
• The U.S. Department of Energy proposed new energy efficiency standards on residential water heaters to simultaneously save consumers money and combat climate change. The rule, which, if finalized, will take effect in 2029, would require most common-size electric heaters to use efficiency-promoting technology in heat pumps and gas-fired heaters. The Energy Department predicted that the new standards will save consumers $198 billion and will reduce carbon emissions by 501 million metric tons over a 30-year period. Secretary of Energy Jennifer Granholm said the rule will “improve outdated efficiency standards for common household appliances, which is essential to slashing utility bills for American families and cutting harmful carbon emissions.”
• The U.S. Department of Justice proposed a rule that aims to make it easier for people with disabilities to use web and mobile apps. The Justice Department explained that because many state and local governments offer services online, it is important to ensure that people with disabilities have equal access to such services. According to Assistant Attorney General Kristen Clarke of the Justice Department’s Civil Rights Division, the proposed rule marks a “significant milestone in the Justice Department’s efforts to advance accessibility in the digital sphere.”
• Israel’s parliament, the Knesset, enacted the first in a series of laws aimed at limiting the power of the Israeli Supreme Court. The law, which passed by a vote of 64-0 in the Knesset, strips the Supreme Court of the power to block government decisions by declaring them “unreasonable.” Under the new law, the Israeli government can make decisions, including hiring and firing public servants, without judicial intervention or oversight. In a press release about the judicial overhaul, the White House stated that President Biden has “publicly and privately expressed his views that major changes in a democracy to be enduring must have as broad a consensus as possible.” The Israeli Supreme Court has stated that it will review legal challenges to the law in September.
• The Alabama legislature approved a new congressional map that includes only one district where Black voters are the majority. The redrawn congressional map defies a recent U.S. Supreme Court decision directing Alabama to create at least two majority-Black districts. In that decision , the Court ruled that because Alabama’s 2020 congressional map had only one majority-Black district, it likely violated Section 2 of the Voting Rights Act, which prohibits voting practices that discriminate on the basis of race. Former U.S. Attorney General Eric Holder stated that the new map “would make George Wallace proud,” referring to Alabama’s former segregationist governor.

WHAT WE’RE READING THIS WEEK

• In a recent article in the Yale Journal on Regulation, Aneil Kovvali of the Indiana University Maurer School of Law and Joshua C. Macey of the University of Chicago Law School, discussed the role of corporate governance in public utilities. According to Kovvali and Macey, the broader system of corporate governance undermines the efficiency and effectiveness of public utilities because traditional corporate governance promotes shareholder profit instead of keeping rates low for the consumers. In addition, Kovvali and Macey noted that because public utilities focus on shareholder profits, they fail to invest in functional utility systems, which leads to underprepared electricity grids and blackouts. Kovvali and Macey proposed that regulators reframe the fiduciary duty of public utility boards of directors to ensure that the directors are accountable to ratepayers and shareholders.
• In an essay on the Center for American Progress website, Adam Conner, the vice president for technology policy at American Progress, urged President Biden to address the challenges and opportunities associated with the rise of artificial intelligence (AI). Specifically, Conner recommended that the Biden Administration issue an executive order requiring federal agencies to adopt an AI Bill of Rights, which outlines steps policymakers and industry leaders can take to “protect the American public in the age of artificial intelligence.” Conner also advised the Biden Administration to prepare the federal government for AI systems that pose a national security threat.
• In a recent article in the Texas Law Review, Guha Krishnamurthi, professor at the University of Maryland Francis King Carey School of Law, and Peter N. Salib, professor at the University of Houston Law Center, argued that the U.S. Supreme Court’s recent decision in Students for Fair Admissions v. Harvard that race-conscious admissions policies are unconstitutional will not eliminate affirmative action. Krishnamurthi and Salib asserted that Students for Fair Admissions will have little practical effect because of cases such as McCleskey v. Kemp, which held that statistical proof cannot establish constitutional discrimination. Thus, only schools that admit to engaging in affirmative action would be liable under existing precedent, Krishnamurthi and Salib contended.

EDITOR’S CHOICE

• In an essay in The Regulatory Review, Olivia Barrow, formerly of the Low Income Investment Fund, argued that the Community Reinvestment Act (CRA) should be updated to reflect the changing needs of communities of color. The CRA requires financial institutions to invest and lend money reflecting the real needs of the communities where they do business and take deposits. Even though the CRA was intended to address discrimination, federal regulators have nonetheless failed to address racial disparities in access to credit, Barrow contended. Barrow suggested that financial institutions use “affirmative race-conscious analysis” to analyze local investment needs and access to credit, just as these institutions already consider income. Specifically, Barrow proposed that banks establish special purpose credit programs designed to benefit those who would otherwise be denied credit or given unfavorable terms.