Week in Review

IN THE NEWS

• In response to the coronavirus outbreak, the U.S. House of Representatives and the U.S. Senate passed a funding package of $8.3 billion to help contain the virus. The U.S. Food and Drug Administration (FDA) authorized the use of respirators that are not currently regulated by FDA to increase the number of respirators available. FDA has also issued guidance permitting laboratories to engage in diagnostic testing before the agency has completed review of the laboratories’ Emergency Use Authorization requests. In addition, the U.S. Center for Disease Control and Prevention issued guidance for higher education institutions on suspending classes, preventing discrimination against people of Chinese and Asian descent, and implementing best hygiene practices for faculty, students, and staff.
• The U.S. Supreme Court agreed to hear a case on the Patient Protection and Affordable Care Act’s (ACA) individual mandate, which requires individuals without health insurance to pay a tax penalty. The U.S. Court of Appeals for the Fifth Circuit had previously held that the mandate was unconstitutional because the attributes that once meant the individual mandate should be treated as a tax “no longer exist.” “Pre-existing condition protections are on the chopping block just as our health care system is preparing for a public health crisis,” warned Senator Ron Wyden (D-Ore.).
• The U.S. District Court for the District of Columbia blocked a Michigan law that would require non-elderly, able-bodied adults to work to qualify for Medicaid. Democratic Governor Gretchen Whitmer, who filed the motion to block the law, had previously urged state lawmakers to enact new legislation delaying the requirements. Amber McCann, spokesperson for Michigan Senate Majority Leader Mike Shirkey (R), reportedly expressed disappointment with the ruling, stating that the requirements were “necessary to help people lead healthy lives and reach their highest personal productivity.”
• The U.S. Environmental Protection Agency’s Science Advisory Board released a critical analysis of the Trump Administration’s proposed vehicle emissions rule. The emissions proposal would set average fuel economy targets at 37 miles per gallon through 2026; the current target, established by the Obama Administration in 2012, is to reduce average fuel economy to 54.5 miles per gallon by 2025. The Board’s analysis identified “significant weaknesses in the scientific analysis of the proposed rule” and suggested that the 2012 standards “might provide a better outcome for society than the proposed revision.”
• The U.S. Court of Appeals for the Ninth Circuit reinstated a federal court order blocking the Trump Administration’s so-called Remain in Mexico policy, which would require non-Mexican asylum applicants at the nation’s southern border to wait in Mexico while their applications are processed. Noting that the “proper scope of injunctions against agency action is a matter of intense and active controversy,” however, the court limited the ban on enforcement to two states, Arizona and California. Judy Rabinovitz, special counsel for the American Civil Liberties Union’s Immigrants’ Rights Project, promised to “continue working to permanently end this illegal and inhumane policy.”
• A coalition of 19 states sued the Trump Administration for reallocating $3.8 billion in approved military spending to pay for the wall along the United States’ southern border. The complaint alleges that the appropriation violated constitutional limits concerning separation of powers and Congressional appropriations, as well as the National Environmental Protection Act. In its notice to Congress, the Administration stated that the reallocation was necessary to protect border areas “that are being used by individuals, groups, and transnational criminal organizations as drug smuggling corridors.”
• The U.S. District Court of the District of Columbia ruled that Director Kenneth Cuccinelli of the United States Citizenship and Immigration Services was unlawfully appointed to his post in violation of the Federal Vacancies Reform Act of 1998 (FVRA). Judge Randolph Moss noted that the FVRA’s default rule requires a person to serve as First Assistant of USCIS before being appointed Acting Director. He stated, “He never did and never will serve in a subordinate role—that is, as an ‘assistant’—to any other USCIS official.” Cuccinelli said, “This ruling is really something of an outlier. This is a methodology that has been used in the past.”
• President Donald J. Trump nominated U.S. Representative John Ratcliffe (R-Texas) to be the Director of National Intelligence. President Trump nominated Ratcliffe for the same position last year, but Ratcliffe withdrew after allegations surfaced that he had exaggerated as to prior national security experience. In response to this week’s nomination, U.S. Senator Mark Warner (D-Va.) said “the last time this nomination was unsuccessfully put forward, serious bipartisan questions were raised about Rep. Ratcliffe’s background and qualifications. It’s hard for me to see how anything new has happened to change that.”
• The Florida Public Service Commission (PSC) approved a proposal to create the country’s largest subscription solar program. In proposing its SolarTogether program, Florida Power & Light stated it would build 20 new solar plants and generate customer savings of $249 million. PSC chair Gary Clark said “the Commission approved the Settlement Agreement because this unique solar program is in the public interest of the State of Florida, and offers FPL customers the opportunity to advance renewable energy in Florida.”

WHAT WE’RE READING THIS WEEK

• In an article for the Seattle Journal of Technology Environmental & Innovation Law, Michael Spiro of Smartsheet Inc. argued that the Federal Trade Commission is the agency most adept at handling issues related to artificial intelligence (AI). Spiro reasoned that because AI is subject to algorithmic decision-making processes, it can act as a form of governance. He wrote, “There is well-founded hope that AI can be more objective than human decision-makers, can augment human judgment in useful ways, and can reduce bias, leading to better outcomes overall.” Spiro cautioned regulators to wait before regulating an area that has only recently developed.
• In an essay for Notice and Comment, Blake Emerson of the University of California, Los Angeles School of Law argued that the U.S. Supreme Court’s “nondelegation” and “major question” doctrines—both of which limit Congress’s capacity to delegate policymaking power to administrative agencies—may be counterproductive. Proponents of nondelegation argue that limits on Congressional delegation are necessary to address “the risk that delegation of authority to executive agencies may undermine democracy,” Emerson wrote. But in practice, he suggested, “both doctrines reallocate legislative power from the executive to the courts,” and thus “worsen the malady they attempt to cure.”
• State regulations targeting abortion and financial burdens unique to the operation of abortion clinics are making it increasingly difficult for clinic providers to make ends meet, wrote Cynthia Koons and Rebecca Greenfield in a new article for Bloomberg Businessweek. Abortion opponents’ successful use of this two-pronged attack, Koons and Greenfield noted, means that providers are footing legal bills while also incurring additional operating expenses, from providing security officers to paying higher rates to contractors and laborers worried about their safety while working at an abortion clinic site. Rising expenses and an increasingly hostile legal climate are raising serious concerns about abortion access, the authors concluded.

FLASHBACK FRIDAY

• In a 2018 essay for The Regulatory Review, Daniel Araya discussed the challenges of regulating cryptocurrency. He stated that regulators primarily struggle to categorize and regulate initial coin offerings. According to Araya, policymakers are concerned about initial coin offerings being used as a vehicle for money laundering or terrorism. But, Araya noted, there is growing concern that overregulation will stifle innovation in a developing industry.