Week in Review

IN THE NEWS 

• The Federal Trade Commission (FTC) filed a challenge to the proposed merger of the grocery chains Kroger and Albertsons alleging that the merger would violate federal antitrust laws. If the FTC had not challenged the proposed merger, the resulting company would have operated over 5,000 grocery stores across 48 states. The FTC alleged that because Kroger and Albertsons compete with one another a merger would reduce competition within the grocery industry. Director of the FTC’s Bureau of Competition Henry Liu argued that the merger would be bad for the grocery chains’ employees, who would “face the threat of their wages dwindling, benefits diminishing, and working conditions deteriorating.”
• President Joseph R. Biden issued an executive order authorizing the Attorney General to “prevent the large-scale transfer of Americans’ personal data” to select countries with histories of collecting and misusing data, including China, Russia, Iran, Cuba, and Venezuela. Although companies may legally sell customers’ data, a 2023 Duke University study revealed that data on active-duty military members—including their home addresses and health conditions—were available for purchase abroad. The executive order directs the Justice Department to issue regulations to protect sensitive personal data, especially in the military and national security industries, without limiting trade and scientific relationships with other countries.
• The U.S. Court of Appeals for the Seventh Circuit allowed Indiana’s ban on gender-affirming care for minors to take effect. The Seventh Circuit overturned a decision from a federal judge that barred the prohibition of certain medical and therapeutic treatments for transgender minors. The law bans all gender-affirming surgeries and treatments for minors. The ACLU of Indiana called the decision a “disappointing and a heartbreaking development.”
• The U.S. Government Accountability Office (GAO) issued a report finding that the Office of Personnel Management (OPM), which is responsible for federal employee health benefits, failed to monitor the eligibility of employees’ family members. GAO estimated that this oversight cost the federal government one billion dollars in payments to ineligible recipients annually. Senator Rick Scott (R-Fla.), who requested the GAO report, said that he planned to introduce a bill requiring OPM to audit all of its members. OPM contended that an audit would be too expensive and that Senator Scott’s bill does not provide new funding.
• The Administration for Children and Families (ACF) issued a proposed rule that would change certain reporting requirements for American Indian children in the adoption and foster care system. Under its proposed rule, agencies who submit information to the ACF’s adoption and foster care database would have to submit additional data on American Indian children. The ACF stated that it could use this additional data to assess agencies’ compliance with the Indian Child Welfare Act and ensure that American Indian children “receive the procedural protections” of the Act.
•  The Florida House of Representatives passed a bill that would ban children under 16 from using certain social media platforms regardless of parental approval. The bill, which now heads to Governor Ron DeSantis for approval, would bar children under 16 from creating new social media accounts and mandate the deletion of any existing accounts belonging to individuals under 16. The bill’s sponsor, Senator Erin Grall, contends that the bill will protect children from “businesses that are using addictive features to engage in mass manipulation.” Some Florida parents, however, expressed that the bill could infringe on parental rights.
• Alabama lawmakers introduced a bill that, if passed, would combat the recent Alabama Supreme Court ruling that declared that frozen embryos are children under state law. The bill, introduced by Alabama House Minority Leader Anthony Daniels, clarified that any “human egg or human embryo that exists in any form outside of the uterus shall not, under any circumstances, be considered an unborn child.” Daniels argued that the bill could also protect fertility clinic workers who have paused in vitro fertilization services in fear of criminal charges.
• The U.S. Supreme Court heard oral arguments on a challenge to a 2018 federal ban on “bump stocks.” Bump stocks are attachments to semi-automatic guns that convert them to rapid fire guns, allowing them to fire two to four times faster. The challengers argued that, by banning bump stocks, the Bureau of Alcohol, Tobacco, Firearms, and Explosives exceeded its authority under a 1934 law to regulate machine guns. That law says machine guns must be able to fire multiple bullets “by a single function of the trigger.” Bump stocks, however, “produce only one shot” from a single trigger pull, the challengers claimed. The federal government countered that the U.S. Congress gave the Bureau latitude to respond to developments in gun design.

WHAT WE’RE READING THIS WEEK

• In a forthcoming article in the Boston College Law Review, Professors Marc Edelman of the Zicklin School of Business at the City University of New York and John T. Holden of the Oklahoma State University Spears School of Business argued that Major League Baseball’s antitrust exemption has outlived its usefulness. Edelman and Holden claimed that the exemption has insulated the league from competitive pressure, prevented geographic redistribution of teams, and eliminated large portions of the minor leagues. Edelman and Holden concluded that Congress and the courts should force the league to operate in a competitive marketplace, such as the other major American sporting leagues.
• In a brief for Pew Charitable Trusts, Alex Horowitz and Tara Roche, directors of Pew’s Housing Policy Initiative, explored how Americans have struggled to finance prebuilt, or manufactured, homes. Horowitz and Roche cited studies finding that denial rates for prebuilt home loans are seven times higher than non-manufactured homes, and that Black loan applicants are denied at “significantly higher rates” than white applicants. Horowitz and Roche explained that personal property loans, an alternative to mortgages that cover the prebuilt house and not the land underneath, are not government-insured like mortgages, leading to less consumer-friendly terms. The authors argued that the Federal Housing Administration should encourage major lenders to offer federally-insured loans, to increase the amount that can be borrowed, and to introduce automated underwriting systems.
• In a recent paper, Emily A. Spieler, a professor at Northeastern University School of Law, argued that state and federal law during COVID-19 failed to protect frontline workers. Spieler pointed out several policy failures by the Occupational Safety and Health Administration (OSHA) including its failure to issue lasting standards, lack of mandates for review and correction of workplace hazards in most industries, and weak enforcement mechanisms. Spieler also observed that OSHA still has not proposed any standard to govern the transmission of airborne disease.

EDITOR’S CHOICE

• In an essay in The Regulatory Review, Jordan Blair Woods, a professor at the University of Arizona James E. Rogers College of Law, discussed the need for additional reporting and data collection requirements for LGBTQ+ children in foster care. By failing to collect information on the gender and sexual identity of children in foster care, Woods argued that agencies have no way of calculating the number of LGBTQ+ children in the foster care system. Woods explained that, without this knowledge, agencies cannot create programs and services to address the specific needs of this vulnerable population.