Week in Review

IN THE NEWS

• Andrew Puzder, President Trump’s nominee to lead the U.S. Department of Labor withdrew his nomination from consideration by the U.S. Senate, following a contentious confirmation process that involved delayed hearings and concerns related to Puzder’s personal finances and a divorce. Senator Mitch McConnell (R-Ky.) reportedly informed the White House that Puzder did not have enough votes to be confirmed after several Republican senators decided to withhold support. Senator Chuck Schumer (D-N.Y.) hailed the decision, reportedly stating that Puzder “should never have even been nominated” in the first place. In Puzder’s place, President Trump nominated Florida International University College of Law Dean Alexander Acosta.

• President Trump signed into law legislation repealing a U.S. Securities and Exchange Commission rule that required resource extraction companies to disclose payments made to foreign governments. The legislation—a Joint Resolution of disapproval—came under the Congressional Review Act (CRA), and marks the first time in 16 years, and only the second time ever, that a regulation has been repealed using the CRA.

• President Trump signed a second Congressional Review Act resolution into law—this one repealing the U.S. Department of the Interior’s stream protection rule—which was issued in December 2016, making it one of the last major regulations issued by the Obama Administration, and which was intended to protect streams from the impact of coal mining by requiring that mining permits not be issued unless “the proposed operation would not result in material damage to the hydrologic balance outside the permit area.”

• The insurance company Humana reportedly announced that in 2018 it will stop selling health insurance plans on the state exchanges established under the Affordable Care Act (ACA). The decision will make Humana the “first major insurer to fully exit Obamacare,” although other insurers have reportedly expressed concern about the ACA’s uncertain future and a possible replacement. President Trump cited the decision by Humana as evidence of the ACA’s failure and reiterated his promise to repeal and replace the law.

• By a vote of 53-47, the U.S. Senate confirmed Steve Mnuchin as Secretary of the U.S. Department of the Treasury. Mnuchin, a former Goldman Sachs executive, was sharply criticized by Democrats for his time in the banking industry, with Democratic National Committee interim Chairwoman Donna Brazile reportedly saying that, as a result of Mnuchin’s confirmation, “[t]he muck in President Trump’s swamp just got neck-deep.” Senate Republicans responded by criticizing what Senate Majority Leader Mitch McConnell (R-Ky.)  reportedly called a “historic level of obstruction” in the Cabinet confirmation process.

• The U.S. House of Representatives and the U.S. Senate continued to pass Congressional Review Act resolutions to revoke regulations issued at the end of the Obama Administration. The House voted to repeal a rule issued by the U.S. Department of Labor (Labor Department) that would have restricted when states could require applicants for unemployment benefits to pass a drug test, and voted to repeal two other Labor Department rules setting guidelines for states and municipalities creating retirement savings programs for low-income workers. The Senate passed a resolution, which had already passed the House, repealing a Social Security Administration rule that would have restricted Social Security recipients with certain mental disabilities from owning guns.

• Senator Ted Cruz (R-Texas) and Representative John Ratcliffe (R-Texas) introduced legislation that would eliminate the Consumer Financial Protection Bureau (CFPB) by repealing the section of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank) that establishes the agency. Sen. Cruz stated that the CFPB has done “little to protect consumers” and that the new legislation will give “Congress the opportunity to free consumers and small businesses from the CFPB’s regulatory blockades,” but other commentators have speculated that eliminating the CFPB might be difficult, in part because of significant investments already made by banks to comply with Dodd-Frank.

• The Trump administration signaled a reverse from Obama Administration policy by submitting a motion to withdraw a motion to stay the temporary injunction issued by Judge Reed O’Connor of the U.S. District Court for the Northern District of Texas in response to a challenge brought by 12 states against the U.S. Department of Education’s guidance instructing public schools to allow transgender students to use the bathroom corresponding to their gender identity. Specifically, the U.S. Department of Justice is withdrawing a motion that asks the court to apply the injunction only to the states involved in the lawsuit.

• The U.S. Senate continued to confirm President Trump’s nominees for executive branch positions. This week, the Senate confirmed Linda McMahon, the co-founder and former CEO of World Wrestling Entertainment, to serve as the Administrator of the Small Business Administration, and Representative Mick Mulvaney (R-S.C.) to lead the Office of Management and Budget.

WHAT WE’RE READING THIS WEEK

• In an article for Bloomberg View, Professor Cass Sunstein of Harvard Law School praised an interim guidance document issued by the Trump Administration to clarify President Trump’s executive order requiring that two regulations be repealed for every one regulation issued because the guidance “sensibly” and concisely answered many of the questions raised by the executive order. Nonetheless, Sunstein noted, “the whole idea of ‘one in, two out’ has a gimmicky quality” and “[t]he simpler approach would be to ensure that any new regulations really are justified, while also carefully scrutinizing old regulations and eliminating those that are unjustified.”

• The Heritage Foundation recently released its 2017 Index of Economic Freedom, which evaluates the degree of “economic freedom”—defined as “the fundamental right of every human to control his or her own labor and property”—in countries around the world based on a number of factors. The United States received its lowest numerical score ever and ranked as the 17^th most free economy in the world. Countries ranked above the United States include Australia, Canada, and the United Kingdom.

• Writing for Vox, Jeff Clements, the president of American Promise, and John Coates, a professor at Harvard Law School, argue that corporations are misusing the First Amendment in an attempt to circumvent regulations. Drawing comparisons to the tobacco industry, the authors discuss a recent suit brought by Exxon Mobil against the attorneys general of Massachusetts and New York, in which Exxon claimed “a previously unrecognized corporate right under the Constitution both to ‘speak’ and to ‘not speak’ about climate change any way it wants.”