Week in Review

• The U.S. Court of Appeals for the Fifth Circuit in a 2-1 decision blocked federal efforts to remove razor-wire fencing that Texas placed along its border with Mexico to deter illegal migration. The majority sided with Texas on the border fence, stating that the federal government waived its sovereign immunity under the Administrative Procedure Act. The majority also held that Texas was seeking to protect its own property, not “regulate” the U.S. Board Patrol.
• The Consumer Financial Protection Bureau (CFPB) proposed a rule to restrict data brokers from selling personal and financial information. The rule would classify data brokers as “consumer reporting agencies,” requiring them to comply with safeguards under the Fair Credit Reporting Act. The rule would limit the sale of “personal identifiers such as Social Security Number and phone numbers,” ensuring that people’s data is “only shared for legitimate purposes.” The CFPB seeks to mitigate harms caused by current data broker practices, including national security risks, criminal exploitation, stalking, and other threats to personal safety.
• The Department of Homeland Security added 29 Chinese companies to the Uyghur Forced Labor Prevention Act Entity List. The list identifies entities implicated in the use of forced labor. These additions aim to combat forced labor in Xinjiang, a region critical to global exports such as cotton and solar components. According to data from the U.S. Customs and Border Protection, about $3.66 billion in shipments have been at least temporarily blocked since the law took effect in June 2022.
• The Internal Revenue Service (IRS) proposed a rule that would exempt unmarked vehicles used by firefighters, members of rescue squads, and ambulance crew members from certain requirements for tax deductions. The rule would allow taxpayers with these “qualified nonpersonal use vehicles” to claim deductions without the detailed documentation typically required for vehicle-related expenses. The rule is intended to provide the same tax treatment to firefighters, members of rescue squads, and ambulance crew members as is currently provided to law enforcement officers who use similar unmarked vehicles.
• The U.S. Food and Drug Administration (FDA) issued the 2024 edition of the Voluntary National Retail Food Regulatory Program Standards, offering a foundation for continuous improvement in retail food safety. The program standards provide guidance for state, local, tribal, and territorial regulatory agencies to create regulatory programs for retail food products. The 2024 edition includes changes such as an extended timeline for meeting the standards, new curriculum for achieving compliance, updated audit procedures, and updated terminology.
• The U.S. Food and Drug Administration (FDA) released guidance for predetermined change control plans for AI-enabled medical devices. Predetermined change control plans outline intended medical device modifications. FDA recommends that the plans include anticipated modifications to the device, the relevant methodology to “develop, validate, and implement those modifications,” and an assessment of their impact. This guidance aims to promote the development of safe and effective medical devices that use AI technology.
• The U.S. Department of Agriculture and the Food and Nutrition Service proposed a rule that would revise the Supplemental Nutrition Assistance Program (SNAP) to better reflect the cost of food in Hawaii. SNAP benefits in Hawaii are calculated based exclusively on food prices in Honolulu. The proposed rule would update the calculation that determines maximum allotment levels for Hawaii residents receiving SNAP benefits to include food prices throughout all of Hawaii. The rule is intended to address the higher cost of a “healthy, practical, cost-effective diet” in the Neighbor Islands of Hawaii due to additional importation and distribution costs.
• The IRS announced a final rule that revises and clarifies eligibility standards for a tax credit for investments in clean energy property. The rule defines multiple energy properties that are constructed on contiguous land or under a single construction contract as a single “energy project” for tax purposes. The rule also clarifies that owners of offshore wind farms can claim the credit for certain equipment they own and explains that owners of underground coils can claim the credit if they own at least one geothermal heat pump that is used with the coils. The rule is intended to give clean energy developers the “clarity and certainty to undertake major investments” and “strengthen America’s clean energy economy.”

WHAT WE’RE READING THIS WEEK

• In a working paper, Jane Arnold Lincove, a professor of public policy at the University of Maryland, Catherine Mata, a research associate at Brown University, and Kalena E. Cortes, a government professor at Texas A&M University, studied the impact of Maryland’s state-wide ban on out-of-school suspensions for kindergarten through second-grade students. They found a significant decrease in the total amount of disciplinary action in the grades affected by the ban. Lincove, Mata, and Cortes, however, did not find an impact on suspensions in unaffected grades or evidence that the ban decreased disparities in suspension rates between student groups.
• In a recent Brookings Institution article, Kevin A. Bryan, a professor at the University of Toronto, and Florenta Teodoridis, a professor at USC Marshall School of Business, argued that over-regulation of artificial intelligence (AI) technology hinders experimentation and exacerbates underinvestment in AI advancements. Bryan and Teodoridis contended that promoting socially beneficial AI will require not only technical and legal knowledge, but also “lessons from economics and management in how the trajectories of new technologies unfold.” They suggested that policymakers regulating AI focus on improving the process of innovation rather than merely the outcomes by encouraging collaboration and consider how regulation in areas of “technological uncertainty” is different from typical product liability regulation.
• In a recent article in the Texas Law Review, Joshua Braver, an assistant professor of law at the University of Wisconsin Law School, and Ilya Somin, a professor of law at George Mason University, argued that exclusionary zoning, a framework that restricts the amount and types of housing permitted, violates the  Fifth Amendment’s Takings Clause and imposes immense social and economic costs. Braver and Somin contended that the 1926 Village of Euclid v. Ambler Realty decision, which upheld zoning regulations by justifying them as police power, entrenched an inequitable system that prioritizes government-imposed control over property rights. Braver and Somin argued that the ruling not only undermined property owners’ rights to use their land but also exacerbated housing shortages, racial and economic segregation, and national inequality. Braver and Somin proposed dismantling these regulatory barriers through constitutional litigation and political reforms.

EDITOR’S CHOICE

• In an essay in  The Regulatory Review, Anne Joseph O’Connell, the Adelbert H. Sweet Professor of Law at Stanford University, argued that vacancies in federal agencies often leave critical roles to be filled by acting officials or delegated to unconfirmed personnel. O’Connell raised concerns about compliance with the Vacancies Act, which governs the temporary filling of vacant federal positions and imposes strict time limits on acting service. O’Connell emphasized the need for agencies to post publicly information about acting officials, clarify delegation processes, and improve reporting systems to the U.S. Government Accountability Office. O’Connell stated that these recommendations will promote greater accountability and efficiency in agency leadership while enhancing public awareness of who governs their government.