Week in Review

IN THE NEWS

• The U.S. Supreme Court granted certiorari in Becerra v. Braidwood Management and will hear a constitutional challenge to the U.S. Preventive Services Task Force, which is part of the Department of Health and Human Services. The case concerns the manner in which the government identifies which preventative treatments must be covered by health insurance. The Supreme Court will decide whether the U.S. Court of Appeals for the Fifth Circuit erred in holding that “the structure of the task force violated the Constitution’s appointments clause” and declining to cut the statutory provision that it found to “unduly insulate the task force from the Health & Human Services secretary’s supervision.”
• The U.S. Supreme Court declined to hear an appeal of a United States Court of Appeals for the Tenth Circuit decision involving the constitutionality of for-cause protections that limit the President’s ability to remove heads of independent agencies. A corporation that makes consumer products for pregnant women and infants challenged the statutory for-cause removal protections afforded to the Consumer Product Safety Commission’s commissioners as violating Article II of the Constitution and the separation of powers doctrine. The corporation also asked the Court to overrule Humphrey’s Executor v. United States, a 1935 case upholding for-cause removal protections for officers of independent agencies who do not perform purely executive functions. The Tenth Circuit denied the corporation’s request for an injunction in June 2024, finding that “proceedings before an agency whose officials allegedly have unconstitutional protection against removal” are not sufficient to establish that the corporation would suffer “irreparable harm” if the injunction was denied.
• President Joseph R. Biden signed an executive order establishing a framework to secure the nation’s leadership in artificial intelligence (AI) development. The order contains strategies to enhance national security, economic competitiveness, and clean energy integration by prioritizing intensive AI infrastructure. Key directives include promoting public-private collaborations, prioritizing sustainable energy sources, and securing supply chains. The order requires agencies to expedite permits, leverage the use of federal lands to advance geothermal power development, and ensure efficient and secure AI infrastructure development.
• The Federal Drugs Administration issued a proposed rule to limit the amount of nicotine in cigarettes and other tobacco products, aiming to reduce addiction and smoking-related health issues. The rule would cap nicotine levels at non-addictive thresholds to deter new users and help current smokers quit. Public health advocates praised the move as a major step forward in reducing smoking rates and tobacco-related deaths. Tobacco companies have criticized the proposal, arguing it could lead to a black market for higher-nicotine products. The rules, if finalized, would mark one of the most significant tobacco control measures in decades.
• The Department of Homeland Security (DHS) and the Transportation Security Administration issued a final rule granting federal agencies flexibility in implementing REAL ID regulations, which take effect on May 7, 2025. The rule will permit agencies to use a “phased enforcement plan” to roll out REAL ID requirements for driver’s licenses and identification cards, considering factors such as “security, operational feasibility, and public impact.” The rule will require that agencies coordinate their enforcement plans with DHS and achieve full enforcement of REAL ID regulations by May 5, 2027.
• The Consumer Financial Protection Bureau (CFPB) released a proposed interpretative rule enhancing consumer protections in digital transactions, including virtual currencies in video games, by addressing transparency and fairness concerns. The rules require digital service providers, such as gaming companies, to provide clear disclosures about pricing, refund policies, and transaction terms for virtual currencies to ensure transparency and fairness. The CFPB emphasized that virtual currency transactions often lack the same protections as traditional financial exchanges, leaving consumers vulnerable to fraud or exploitation. The regulations aim to build on the agency’s broader efforts to bring digital payment providers under privacy and payments laws, reflecting a growing focus on ensuring accountability in digital marketplaces.
• The Consumer Financial Protection Bureau proposed a rule prohibiting clauses in consumer contracts that attempt to waive “substantive consumer legal rights and protections” granted by federal or state statutes, including the Consumer Financial Protection Act and the Truth in Lending Act. The rule would also prohibit contract terms that limit free expression by threatening consumers with account closures, fines, or breach of contract claims. The proposed rule aims to prevent large consumer financial companies from using contracts of adhesion—contracts “presented to consumers on a ‘take it or leave it’ basis”—to infringe on consumer rights.
• The U.S. Fish and Wildlife Service proposed a rule to restore federal protections for grizzly bears in the Northern Rockies, reversing a Trump-era decision to delist them as a threatened species. The proposed rule would reinstate Endangered Species Act protections for grizzlies in parts of Montana, Idaho, and Wyoming, where populations remain vulnerable due to habitat loss and human conflicts. The rule would also prohibit grizzly hunting in these areas and require federal oversight of conservation efforts. Critics—including local ranchers and hunters—argue that these protections will hinder land management and economic activities. Supporters emphasize that these measures are essential to ensuring the long-term survival of grizzly populations amid ongoing environmental pressures.

WHAT WE’RE READING THIS WEEK

• In a forthcoming article, Nia Johnson, an Assistant Professor of Law at Duke University School of Law, argued that structural racism undermines the effectiveness of U.S. insurance reform. Johnson explained that despite initiatives to reduce health disparities—such as the Affordable Care Act—significant racial disparities persist due to systemic barriers to housing and public health resources. Using Flint, Michigan as a case example, Johnson highlighted the impact of historical segregation and environmental injustices on already vulnerable communities. Johnson proposed implementing expansive public health reforms beyond insurance policies to dismantle the structural inequalities preventing equitable outcomes.
• In an article published in the Journal of Air Law and Commerce, Daniel Friedenzohn, a Senior Associate Dean and professor at Embry-Riddle Aeronautical University, and Trevor Simoneau, a graduate research assistant at Embry-Riddle Aeronautical University, argued that even though potential jurisdictional conflicts exist between federal and state laws concerning drone noise regulation, both levels of authority must be used to address community-specific needs. Friedenzohn and Simoneau highlighted that drones, operating at lower altitudes with high-pitched buzzing sounds, create unique noise impacts that existing Federal Aviation Administration metrics do not adequately address. Friedenzohn and Simoneau proposed revising noise metrics, exploring indirect regulatory measures, and fostering collaboration among federal, state, and local entities to mitigate the disruptive effects of drone noise.
• In a recent Brookings Institution article, William G. Gale, Miller Chair in Federal Economic Policy at Brookings, Oliver Hall, a senior research assistant in Economic Studies at Brookings, and John Sabelhaus, a visiting fellow at the Urban-Brookings Tax Policy Center, considered how the “Great Wealth Transfer”—the historically large set of intergenerational wealth transfers anticipated in the coming decades—should be taxed. Gale, Hall, and Sabelhaus contended that “appropriately and judiciously” taxing this flow of wealth could raise revenue for the federal government and improve the tax system’s fairness, but noted that existing tax policy is “ill-equipped” to meet those goals. They suggested converting the current estate tax, which taxes property at the time of the owner’s death, into an inheritance tax that would be paid by the recipient of such property. Gale, Hall, and Sabelhaus argued that an inheritance tax would raise revenue and be more effective by targeting individual transfers of wealth.

EDITOR’S CHOICE

• In an essay in The Regulatory Review, Mark Thomson, a former deputy director of research at the Administrative Conference of the United States, and John F. Cooney, a former senior fellow at the Administrative Conference of the United States, examined federal agencies’ growing reliance on artificial intelligence (AI) for tasks such as adjudication, enforcement, and data analysis. Thomson and Cooney argued that this use of AI raises significant challenges, including a loss of human discretion leading to potential biases or lack of transparency in decision-making. They discussed a statement issued by the Administrative Conference of the United States that provides guidelines to help agencies address these concerns, emphasizing principles such as transparency, accountability, privacy, and oversight. Thomson and Cooney emphasized the value of this guidance, noting its potential to assist agencies in leveraging AI’s benefits while mitigating associated risks.