Week in Review

IN THE NEWS

• The U.S. Court of Appeals for the First Circuit upheld an order blocking President Donald J. Trump’s executive order limiting birthright citizenship, making it the third federal appellate court to do so. The executive order seeks to limit birthright citizenship for children born in the United States to non-citizen parents who are in the country unlawfully or on temporary visas. The executive order faced significant legal challenges for allegedly violating the 14th Amendment of the U.S. Constitution. Although the government argued that the plaintiffs lacked standing to bring the claim, Chief Judge David Barron, writing for the unanimous panel, held that the government failed to make a “developed argument” about why the executive order should be upheld.
• President Trump withdrew his nomination of former U.S. Representative David Weldon (R-Florida) as director for Centers for Disease Control and Prevention Director hours before Weldon’s confirmation hearing. Weldon, like Robert F. Kennedy Jr., the head of the U.S. Department of Health and Human Services, has a reported reputation of vaccine skepticism. Weldon’s nomination had also been criticized as one of President Trump’s “worst” selections in terms of qualifications. No new nomination has been made yet.
• The U.S. Environmental Protection Agency (EPA) Administrator Lee Zeldin announced 31 deregulatory actions in an effort that Zeldin deemed the “greatest day of deregulation our nation has seen.” Key initiatives include reconsidering emission standards for power plants, oil and gas industries, and vehicle emissions, as well as revisiting the 2009 Endangerment Finding, which classified greenhouse gases as harmful to human health. Zeldin claimed that these measures will lower living costs, boost energy production, and revitalize industries such as automotive manufacturing. Environmental advocates and former EPA officials have criticized the move, warning that it could undermine public health protections and exacerbate climate change.
• The U.S. Supreme Court agreed to hear a case challenging a Colorado law banning licensed mental health professionals from practicing conversation therapy on minors. Conversion therapy is the use of various methods, here therapeutic, to attempt to change a person’s sexual orientation or gender identity. A licensed counselor sued, arguing that the ban violates her First Amendment right to free speech and her freedom to exercise religion. Colorado defended the law by citing evidence of the harmful effects of conversion therapy, likening the ban to one on professional conduct rather than speech. The Supreme Court’s review could affect similar bans in over 20 states.
• The U.S. House of Representatives passed a resolution aimed at rolling back a Biden Administration regulation concerning digital asset reporting. This regulation attempted to expand federal reporting requirements for those involved in decentralized digital asset transactions. The effort to repeal had some bipartisan support. U.S. Representative Mike Carey’s (R-Ohio) resolution intends to avoid stifling innovation and placing undue burdens on the digital asset industry. The resolution to repeal will go to the U.S. Senate for consideration.
• The Federal Trade Commission (FTC) requested a delay in its trial against Amazon for deceptive practices related to Amazon’s Prime subscription program, citing severe resource limitations and budgetary challenges due to President Trump’s funding cuts and layoffs. Amazon attorneys reportedly pushed back against the request, asserting both their readiness for trial and the fact that the FTC’s attorneys assigned to the case are largely still employed at the agency. The FTC’s legal team pointed to specific obstacles, including restrictive rules on purchasing court documents, travel limitations, and an impending office relocation, as contributing factors to their need for additional preparation time. U.S. District Judge John Chun, who is overseeing the proceedings, will make his decision on this delay request in the coming weeks.

WHAT WE’RE READING THIS WEEK

• In an article in the Yale Journal on Regulation, Joshua C. Macey, an associate professor at Yale Law School, and Brian Richardson, an associate professor at Cornell Law School, examined the influence of public utility regulation on modern administrative law. Macey and Richardson analyzed the history of public utility regulation, arguing that it has fundamentally shaped constitutional and administrative law by shifting power from the judiciary to legislatures. They contended that public utilities, historically viewed as industries “affected with the public interest,” provided the legal foundation allowing the administrative state to expand. The pair claimed that modern legal debates about the administrative state, including challenges to agency power and deregulation, ignore the importance of the historical roots of public utility regulation.
• In an article in the Yale Journal on Regulation, Erika M. Douglas, associate professor at Temple University Beasley School of Law, explored the phenomenon of “antitrust abandonment,” which refers to the long-term disuse of antitrust enforcement powers by industry regulators despite their statutory authority. Douglas specifically examined three industries—ocean shipping, rail, and meatpacking—all of which have largely failed to act against anticompetitive practices. Douglas argued that antitrust law has gradually abandoned its initial purpose of promoting consumer welfare and now focuses on market competition efficiencies, leading to significant gaps in competition oversight. Douglas discussed the implications of this shift, noting risks to consumers in highly concentrated markets. Douglas concluded by calling for a reevaluation of antitrust priorities to better balance consumer protection with market regulation priorities.

EDITOR’S CHOICE

• In an essay in The Regulatory Review, Katie Eyer, a professor of law at Rutgers Law School, argued that an Arkansas bill prohibiting gender-affirming medical care for transgender youth violated the Equal Protection Clause of the U.S. Constitution. Eyer contrasted the Arkansas ban with laws prohibiting conversion therapy for minors, explaining that even though these bills aim to prevent harm and are supported by medical organizations, the Arkansas ban specifically targets transgender individuals. Eyer argued that this specific focus indicates discriminatory intent, citing the language used in the course of debates surrounding the bill, including references to transgender people as an “abomination” and likening treatments to “snake oil” and “chemical mutilation.” Eyer pointed out that the same medical treatments, however, are legal when used by non-transgender minors, amplifying the ban’s “invidious discrimination” against transgender youth.