Week in Review

IN THE NEWS

• The U.S. Supreme Court declined to review a high-stakes ruling from the U.S. Court of Appeals for the Fifth Circuit that upheld statutory restrictions on the President’s authority to remove commissioners of the Consumer Product Safety Commission (CPSC). The Fifth Circuit relied on the landmark 1935 Supreme Court case Humphrey’s Executor v. United States, in which the Court held that Congress may allow the President to remove commissioners of multi-member “independent” agencies—those with “predominantly quasi-judicial and quasi-legislative” functions—only for specified causes, rather than at-will. Although the Fifth Circuit upheld the CPSC members’ for-cause removal restrictions because it “must follow binding precedent,” it wrote in its opinion that the logic of Humphrey’s Executor seems “out of step” with current Supreme Court views and suggested the Court may want to reconsider the New Deal-era ruling by hearing the case. The petition for a writ of certiorari before the Court attracted significant attention after its June filing, with several major advocacy groups, states, and members of Congress filing a combined 11 amicus briefs on behalf of the litigants.
• The U.S. Court of Appeals for the Second Circuit upheld most of a major New York State gun control statute, affirming the state’s authority to prohibit firearms in “sensitive” locations, such as schools, government buildings, entertainment venues, public parks, and hospitals. The Second Circuit also ruled that New York may deny concealed-carry licenses to individuals “deemed likely to pose a danger.” The Second Circuit reviewed the 2022 New York law in light of a recent U.S. Supreme Court decision, United States v. Rahimi, in which the Court issued new guidance and clarification for evaluating the constitutionality of gun restrictions.
• The U.S. Court of Appeals for the Ninth Circuit ruled that the federal government’s former “metering” policy, which limited daily asylum seekers at the U.S.-Mexico border, violated immigration law. The Ninth Circuit found that federal law requires border agents to inspect all asylum seekers arriving at designated crossings, even if they have not entered the U.S. The Biden Administration argued asylum laws apply only after migrants have physically entered the U.S. The court disagreed and found that migrants turned away under the policy should have been admitted when they first tried.
• The Consumer Financial Protection Bureau (CFPB) finalized a rule expanding consumers’ rights to access, control, and share their personal financial data. The rule allows consumers to transfer their data from one financial institution to another for free and prohibits third parties from “collecting, using, or retaining consumer data for the benefit of entities other than the consumer.” Financial data providers must comply with this rule on a “staggered” basis depending on size, with larger providers facing earlier compliance deadlines than smaller ones. The CFPB anticipates that the rule will enhance competition and lower prices in the financial services sector, empowering consumers to switch to providers offering better rates and services.
• The Pennsylvania Supreme Court ruled that voters whose mail-in ballots are rejected due to errors, such as an incorrect date or missing envelope, can still cast provisional ballots at their polling place. The ruling allows more voters in the state to participate, even if their mail-in ballots are disqualified. Although the dispute arose in a specific county, the American Civil Liberties Union of Pennsylvania views the decision as applying to all counties across the state. This Pennsylvania ruling is one of many recent decisions across the nation that continue to clarify voting processes ahead of the 2024 election.
• The U.S. Drug Enforcement Administration (DEA) issued a final rule that classifies ethylphenidate, a central nervous system stimulant with a high potential for abuse, as a Schedule I substance under the Controlled Substances Act. The rule imposes civil and criminal sanctions on individuals who manufacture, distribute, or possess ethylphenidate. The DEA noted that ethylphenidate shares pharmacological similarities with methylphenidate, a Schedule II stimulant primarily used to treat attention deficit hyperactivity disorder (ADHD), but, unlike methylphenidate, ethylphenidate “has no currently accepted medical use.”
• The Federal Highway Administration proposed a rule that would revise a federal regulation that requires recipients of federal funding for highway construction to investigate traffic noise impacts and explore potential noise mitigation measures. The rule would clarify the factors used to evaluate the effectiveness of noise abatement measures and focus abatement efforts on projects most likely to cause traffic noise impacts. The proposal is also intended to expand eligibility for noise studies “to ensure everyone receives due consideration for impacts and the possibility of receiving abatement.”
• The Federal Aviation Administration (FAA) issued a final rule outlining qualifications and training for pilots and instructors flying powered-lift aircraft, a new aircraft category that includes air taxis and cargo operations. These aircrafts, which can take off like helicopters and fly like planes, represent the first new civil aircraft category since the 1940s. The new rule creates a third category of aircraft, beyond the traditional rotor and fixed-wing designs and electric vertical takeoff and landing (eVTOL) aircrafts, and marks a key step toward commercializing air taxis in the near future. The rule updates existing regulations and introduces new regulations to ensure pilots are able to operate the new vehicles.

WHAT WE’RE READING THIS WEEK

• In a Brookings Institution report, Keon L. Gilbert, a fellow, and Carly Bennett, a research analyst, both in the Governance Studies Program at The Brookings Institution, argued that additional research and regulation are needed to ensure the safety of menstrual hygiene products such as tampons and sanitary napkins. Gilbert and Bennett explained that some menstrual hygiene products contain concerning amounts of toxic substances, including lead and arsenic, and argued that research is needed “to explore the consequences” of vaginally absorbed toxins. Gilbert and Bennett noted that, although the U.S. Food and Drug Administration (FDA) does not currently require that menstrual products be tested for chemical contaminants, FDA recently announced a plan to investigate toxic chemicals and metals in tampons.
• In an article in the Michigan Law Review, Bennett Capers, Stanley D. and Nikki Waxberg Professor of Law and Director of the Center on Race, Law, and Justice at Fordham Law School, and Gregory Day, associate professor at the University of Georgia, considered how antitrust law’s narrow focus on “colorblind” consumer welfare overlooks the disproportionate harm that anticompetitive practices inflict on marginalized communities, particularly communities of color. Using insights from critical race theory, Capers and Day argued that antitrust law should instead adopt a “community welfare” standard that recognizes the distinct ways racial minorities suffer under these economic practices. They also asserted that because antitrust law focuses on the structure and impact—rather than the intent—of anticompetitive conduct, it is “ideally suited” to challenge systemic and structural racism.
• In an article in the Harvard Environmental Law Review, Susan S. Kuo and Benjamin Means, both Professors of Law at the University of South Carolina School of Law, proposed establishing independent climate monitors to regulate the biggest corporate emissions contributors. Kuo and Means argued that climate change compliance among major corporations is essential to mitigating future environmental harm and found that current efforts to hold corporations accountable have produced mixed results. To help regulate the “Carbon Majors”—the top 90 companies responsible for the majority of global carbon emissions—Kuo and Means recommend establishing independent compliance monitors that would enforce governance changes and prevent corporate greenwashing. They explained that this approach may compel these companies to contribute to decarbonization efforts to help prevent a climate crisis.

EDITOR’S CHOICE

• In an essay in The Regulatory Review, Anita L. Allen, a professor at the University of Pennsylvania Carey Law School, emphasized the need for more data privacy regulation and the creation of a federal Data Protection Agency. Allen noted that a new agency with sweeping policymaking and law enforcement authority could “make a difference in data privacy regulation” by punishing violators of privacy regulators and studying data-collection practices. Although such an agency may not allow Americans to “reclaim control over all their data,” Allen argued that it could provide strong protections against “exploitation, manipulation, and discrimination” by companies.