Week in Review

IN THE NEWS

• The U.S. Department of Justice filed two lawsuits against jurisdictions with sanctuary policies that hinder U.S. Immigration and Customs Enforcement’s (ICE) pursuit of undocumented immigrants. One suit challenges New Jersey Attorney General Gurbir Grewal’s 2018 policy directing state law enforcement not to share immigration status data on prisoners with ICE unless required by law. A second suit against King County in Washington protests a local order barring ICE from using King County Airport for deportation purposes. U.S. Attorney General William Barr called the suits “a significant escalation in the federal government’s efforts to confront the resistance of ‘sanctuary cities.’”
• The U.S. House of Representatives voted to extend the deadline to ratify the Equal Rights Amendment (ERA). The ERA’s original deadline expired in 1982, but after the Virginia General Assembly became the last state needed to include the amendment in the U.S. Constitution, members of Congress have made efforts to remove the deadline. “The absence of the ERA has meant that women can be paid less for their work, violated with impunity, and discriminated against simply for being who they are,” said Representative Jackie Speier (D-Calif.).
• The U.S. Department of Transportation’s Inspector General released a report that the U.S. Federal Aviation Administration (FAA) permitted Southwest Airlines to operate planes that did not meet required safety standards. The report stated that Southwest Airlines continues to operate planes with unresolved safety concerns and accused the FAA of failing to provide inspectors with guidance on properly analyzing risk assessment. Southwest Airlines reportedly released a statement that “any implication that we would tolerate a relaxing of standards is absolutely unfounded.”
• The U.S. District Court for the Southern District of New York rejected a challenge brought by a coalition of states to the proposed merger between telecom companies T-Mobile and Sprint. In a statement, T-Mobile CEO John Legere said that the decision was “a huge victory.” Connecticut Attorney General William Tong, however, called the proposed merger “a bad deal for consumers” and stated that he would be “discussing next steps with our multistate partners.”
• Planned Parenthood and a group of individual plaintiffs sued the Trump Administration over its new rule requiring health care providers participating in the Patient Protection and Affordable Care Act individual marketplaces to send separate bills for abortion services. “This rule exists for one reason: to make it more difficult for people to access safe, legal abortion,” Alexis McGill Johnson, Acting President and CEO of Planned Parenthood said. In a press release accompanying the rule, the government stated that the separate billing requirement was intended to “alert consumers that their health plan covers abortion services, allowing them to make fully informed decisions about their coverage.”
• The Justice Department dropped its investigation into the four largest automakers—Ford, Honda, BMW, and Volkswagen—for alleged antitrust violations. The Justice Department launched an investigation in September after the automakers decided to follow California fuel economy standards, defying President Donald J. Trump’s rollbacks. “These trumped up charges were always a sham—a blatant attempt by the Trump administration to prevent more automakers from joining California and agreeing to stronger emissions standards,” said California Governor Gavin Newsom (D).
• The Trump Administration’s new budget request describesa plan to move regulation of tobacco away from the U.S. Food and Drug Administration (FDA). The Center for Tobacco Products would continue to regulate tobacco and would still fall under the authority of the U.S. Department for Health and Human Services, but would not report to FDA. Although Joe Grogan, director of the Administration’s Domestic Policy Council, has called FDA’s regulation of tobacco “a huge waste of time,” former FDA Commissioner Scott Gottlieb insisted it was in fact “one of the most productive uses of my time.”
• The U.S. District Court for the District of Maryland blocked ICE from detaining and deporting undocumented immigrants living in Maryland and currently in the process of obtaining permanent residency following marriage to a U.S. citizen. Judge George J. Hazel wrote that a ban on detention “bars arbitrary agency action toward vulnerable immigrant communities, and diminishes the emotional and financial impact on families participating” in the permanent residency process.
• New York State Attorney General Letitia James sued the Trump Administration over its new policy restricting New Yorkers from enrolling or re-enrolling in the federal government’s Trusted Traveler programs, such as Global Entry or NEXUS. The Trump Administration imposed the restrictions in response to New York’s Green Light law, which prohibits the state’s Department of Motor Vehicles from sharing certain information with the federal government. In a statement, Attorney General James accused the Administration of using “our nation’s security as a political weapon.”

WHAT WE’RE READING THIS WEEK

• Large private companies play an increasingly central role in enforcing public policy, according to Professor Rory Van Loo of Boston University School of Law. In a forthcoming article for the Virginia Law Review, Van Loo argued that administrative agencies have conscripted private entities into regulatory enforcement programs—for example, by imposing mandatory contract clauses that shape companies’ interactions with other private actors. Although such practices may allow agencies to reach beyond their limited resources, Van Loo cautioned that private enforcement may also “risk creating a vast sphere of regulatory arbitrage out of public sight and judicial review.”
• A new report by Dany Bahar and Meagan Dooley of the Brookings Institution focused on the loss in human capital caused by the refugee crisis. Bahar and Dooley argued that media and policy fixation on integration challenges for the 1 percent of refugees resettled in western countries takes away from the larger story about the underutilization of refugee populations as a resource for skill and expertise. Domestic policy, they concluded, should reframe the discussion of refugees to focus on newcomers as an asset rather than a burden to their destination countries.
• In an article in the Pepperdine Law Review, Professor Clay Calvert of the University of Florida described how courts apply varying levels of scrutiny when examining First Amendment challenges to sexual orientation conversion therapy for minors. According to Calvert, the U.S. Supreme Court should stop avoiding the question of what level of scrutiny to apply because courts currently lack uniformity in their decisions. He recommended adopting a proportionality test to evaluate whether protecting minors from conversion therapy outweighs First Amendment concerns, given its flexibility to balance both parties’ interests.

FLASHBACK FRIDAY

• In a 2019 essay for The Regulatory Review, Professor Herbert Hovenkamp of the University of Pennsylvania Law School discussed whether concerted agreements to comply with a state’s regulatory framework violated antitrust laws. Hovenkamp noted that such an agreement “very likely” meets the exemption for state action but would also survive if the combined companies lacked sufficient market power. He wrote that if the Justice Department pursued such an antitrust claim—as the agency did with the four largest automakers complying with California fuel-economy standards—it would be a “waste of public resources.”