Week in Review

IN THE NEWS

• A federal judge in Texas blocked the implementation of a Federal Trade Commission (FTC) rule that would have banned non-compete agreements nationwide. Judge Ada Brown, of the Northern District of Texas, determined that the FTC lacked the statutory authority to impose such a broad prohibition. The FTC expressed disappointment, and the White House reaffirmed its support for the ban. Although the future of the rule is uncertain, the Chamber of Commerce celebrated the ruling as a win against government overreach.
• The Department of Homeland Security implemented the Keeping Families Together program, which allows noncitizen spouses and stepchildren of U.S. citizens to “request parole in place under existing statutory authority.” Parole in place allows noncitizens who enter the United States without authorization to remain for a specific period of time. The stated goal of this program is to “promote family unity and remove barriers to adjustment of status.” Noncitizens who are approved for this program must still meet all statutory and regulatory requirements to further change their citizenship status.
• The U.S. Department of Health and Human Services issued a final rule intended to improve Head Start, a federal early childhood program, by increasing the quality of services the program provides to families. The rule would introduce requirements for wages, health care benefits, and wellness efforts for staff. The rule would also put certain Head Start educators on track to earn the same pay as their local school district counterparts by 2031, as part of an effort to retain and attract employees amid shortages in the workforce. The rule is also intended to integrate mental health services into every aspect of Head Start’s work and to improve areas such as service worker assignments, services for pregnant individuals, and alignment with state early childhood programs.
• The Federal Communications Commission (FCC) issued a final rule allowing for the off-premise distribution of WiFi services to school and library students, personnel, and patrons. The rule is a step in expanding and modernizing the FCC’s E-Rate program, which aims to provide “high-speed, affordable internet services” to schools and libraries across America. The rule will allow schools and libraries to purchase WiFi hotspots that can be lent out and taken home. To ensure the E-Rate program continues to provide connectivity within schools and libraries, the rule continues to prioritize on-site funding.
• T-Mobile agreed to pay a $60 million civil penalty over alleged violations of a national security agreement with the Committee on Foreign Investment in the United States (CFIUS). The government charged that violations occurred when T-Mobile failed to prevent unauthorized access to sensitive data and did not promptly report the incidents to CFIUS, breaching the terms of the agreement made during its merger with Sprint. The fine, the largest ever imposed by CFIUS, underscores the committee’s commitment to enforcing compliance in deals that pose potential national security risks. The case also marks the first time CFIUS publicly named a company in an enforcement action, highlighting its increased focus on corporate transparency.
• The National Highway Traffic Safety Administration (NHTSA) issued a final rule requiring motor vehicle manufacturers to retain certain records related to motor vehicle safety for 10 years. At present, manufacturers must retain these records for five years. The rule reflects a provision in the Fixing America’s Surface Transportation Act (FAST Act), which directed the Secretary of Transportation to increase the minimum retention time for certain safety records to at least 10 years. The rule is intended to address NHTSA’s investigative needs while minimizing administrative burdens for motor vehicle manufacturers.
• The U.S. Department of Transportation issued a notice of proposed rulemaking aimed at improving accessibility for pedestrians in public right-of-ways. The proposed rule would adopt the Accessibility Guidelines for Pedestrian Facilities in the Public Right-of-way (PROWAG), thus implementing transportation provisions of the Americans with Disabilities Act. A 2023 final rule defined public right-of-way as “public land acquired for or dedicated to transportation purposes, or other land where there is a legally established right for use by the public for transportation purposes.” The proposed rule is not expected to have high implementation costs and is aimed at improving accessibility for pedestrians with disabilities.
• The U.S. Food and Drug Administration approved updated COVID-19 vaccines from Pfizer and Moderna on Thursday, targeting a recent variant of the disease. The new vaccines are designed to closely target current variants and better protect against severe symptoms, as the older vaccines were aimed at a now-outdated variant. Although the KP.2 variant, the focus of the updates, is no longer dominant, it is still related to other circulating variants in the United States, and regulators hope this strategy will offer broader protection. These approvals come as COVID-19-related hospitalizations and deaths have risen over the past three months in the United States, though demand for vaccines has decreased significantly since the pandemic’s peak.

WHAT WE’RE READING THIS WEEK

• In a recent essay published in the Yale Journal on Regulation, Hilary J. Allen, a professor at American University Washington College of Law, argued that deposit insurance might be insufficient to prevent future bank runs, or instances in which bank customers rush to withdraw their funds, especially if technological developments create new triggers for bank runs. Allen suggested that a “digital bank holiday” in which banks stop processing digital transactions, modeled after the bank holiday deployed by President Franklin D. Roosevelt in 1933, could be useful in responding to future banking panics. Allen clarified that a digital bank holiday would be a drastic response that “should never be deployed lightly” because of both short-term impacts on consumers’ ability to transact and long-term consequences on economic growth and credibility of central banks.
• In a recent working paper issued by the National Bureau of Economic Research, Susan T. Parker, a postdoctoral research fellow at Northeastern University, Matthew B. Ross, an associate professor at Northeastern University, and Stephen Ross, a research associate at the University of Connecticut, studied a Connecticut program aimed at reducing racial disparities in police traffic stops. The program analyzed traffic stops across the state, identifying areas with a prevalence of racial discrimination. The programs then provided recommendations for reform to the identified departments and the results of that reform were published publicly. Parker, Ross, and Ross found that the program significantly reduced the number of minorities involved in traffic stops and lowered the percentage of stops that resulted in an arrest.
• The Center for Applied Environmental Law and Policy (CAELP) recently prepared a white paper to help litigants defending agency actions better understand Loper Bright Enterprises v. Raimondo and how best to apply it in lower courts. The Supreme Court’s decision in Loper Bright eliminated the Chevron doctrine, emphasizing that courts must now determine the “best reading” of statutes without automatically deferring to agency interpretations, although agency expertise can still inform judicial analysis. CAELP emphasized that the decision creates uncertainty about the role of the Major Questions Doctrine (MQD) and its relationship to Chevron, with the Court leaving open the possibility for lower courts to continue citing MQD in regulatory challenges. Despite overturning Chevron, the Court reaffirmed the importance of stare decisis, suggesting that prior cases relying on Chevron should largely remain intact unless they are unworkable or have not induced significant reliance interests. CAELP highlighted the importance of this limitation, emphasizing that stare decisis should play a critical role in these cases.

EDITOR’S CHOICE

• In an essay in The Regulatory Review, Carrie Rosenbaum, lecturer in legal studies at the University of California, Berkeley, argued that the biases present in the U.S. criminal justice system also impact immigration enforcement. Rosenbaum noted that Department of Homeland Security (DHS) policies such as Secure Communities (S-Comm), which establishes an information-sharing partnership between DHS and law enforcement agencies to facilitate immigration enforcement actions against undocumented immigrants already in the custody of law enforcement, expand “the reach of immigration enforcement into the interior of the United States.” Rosenbaum suggested that, although S-Comm and DHS’s enforcement priorities are formally race neutral, implicit bias in the criminal justice system can nevertheless filter into immigration enforcement.