Week in Review

IN THE NEWS

• President Joseph R. Biden withdrew areas on U.S. coastlines from oil or natural gas leasing indefinitely in the name of environmental conservation. The ban will have limited impact on existing drilling and much of the withdrawn area does not have oil prospects. The move could be difficult, however, for President-Elect Donald J. Trump to undo. The Lands Act allows Presidents to withdraw areas from consideration but does not grant them legal authority to overturn prior bans. A reversal of this withdrawal likely requires congressional action..
• The U.S. Department of Justice, together with several state governments, filed a lawsuit against RealPage, Inc., and several other major landlords, alleging anticompetitive practices in the rental market. The Justice Department claims that RealPage’s pricing software enabled landlords to share sensitive rental data, leading to inflated rents and reduced competition. The plaintiffs argue that this behavior harmed tenants and allowed RealPage to dominate the revenue management software market. Greystar Real Estate Partners LLC, a defendant in the case, reportedly stated that it “at no time” engaged “in any anti-competitive practices,” and that it would defend itself “vigorously” in the lawsuit.
• The Federal Trade Commission and New York Attorney General Letitia James filed a lawsuit against Handy Technologies, Inc., accusing the gig economy platform of engaging in deceptive practices that misled its workers. The complaint alleges that Handy made exaggerated claims about potential earnings, failed to disclose hidden fines and fees that reduced pay, and unfairly penalized workers for incomplete jobs, even when customers were at fault. The plaintiffs seek an injunction and monetary relief, arguing that Handy’s actions violated federal and state consumer protection laws and harmed financially-vulnerable workers.
• The Food and Drug Administration (FDA) proposed new guidelines for blood oxygen monitoring devices to improve the machines’ performance across different skin tones. These machines attach to a fingertip and use infrared light to measure oxygen in the blood. Growing evidence, however, suggests these devices are not as accurate on darker skin tones. FDA’s draft guidelines recommend to manufacturers how they should gather clinical data to evaluate effectiveness on various skin tones.
• The U.S. Department of Health and Human Services (HHS) issued a notice of proposed rulemaking detailing security standard modifications for Health Insurance Portability and Accountability Act (HIPAA) protected health information. The focus of the proposed changes is to better protect confidentiality and integrity of electronic HIPAA information. Among other recommendations, HHS calls for updated encryption and compensation tools, regular review and testing procedures, and administrative safeguards such as sanction policies and access controls.

WHAT WE’RE READING THIS WEEK

• In a forthcoming article in the California Law Review, Brian DeLay, the Preston Hotchkis Chair in the History of the United States at the University of California, Berkeley, critiqued the U.S. Supreme Court’s 2022 decision in New York State Rifle & Pistol Association v. Bruen. According to DeLay, Bruen mandated “history, text, and tradition” as the sole criteria for evaluating the constitutionality of firearm regulations. DeLay described how this decision has led gun-rights advocates to argue that contemporary gun culture reflects a tradition dating back to the founding of the United States. Challenging this view, DeLay contended that today’s “consumerist, government-phobic, and individualist” gun culture contrasts sharply from the “utilitarian, government-led, and collective” nature of founding-era gun ownership. In addition, he outlined the significant technological differences between today’s guns and founding-era firearms, noting that when automatic and semi-automatic weapons became widely available, governments responded with restrictions on their ownership and use.
• In a forthcoming working paper, Cass R. Sunstein, the Robert Walmsley University Professor at Harvard Law School, argues that the Supreme Court has been impacted by a “Grand Narrative.” This narrative contended that the U.S. Supreme Court historically allowed for Congress to excessively defer to administrative agencies—causing administrative agencies to exceed their constitutional powers. Sunstein further argued that this Grand Narrative has driven the Court’s recent decisions to curb agency power. Sunstein explained following the Grand Narrative may lead to previously settled administrative law being reconsidered, such as Humphrey’s Executor v. United States, which created the “quasi-judicial” and “quasi-legislative” distinction for agencies that make rules and adjudicate. Sunstein noted that even though the Grand Narrative is necessary to understand modern administrative law, there may be reason to question the narrative’s validity, which raises questions about its potential future impact.

EDITOR’S CHOICE

• In an essay in The Regulatory Review, James Goodwin, the Policy Director of the Center for Progressive Reform, explored the implications of Project 2025—the Heritage Foundation-led policy initiative “now awaiting implementation” by the incoming Trump Administration. According to Goodwin, the initiative’s “vision of a Christian nationalist” society will require an expansion of the administrative state and an erosion of federalism principles—a proposal that Goodwin explained “notably departs” from traditional conservative policy goals. Goodwin called for progressives to develop a robust and affirmative vision of the administrative state as a counterpoint to the “authoritarian model” proposed in Project 2025. He also emphasized the need for reforms rooted in the rule of law and democratic values.