Week in Review

IN THE NEWS

• The U.S. Food and Drug Administration (FDA) lifted strict restrictions on mifepristone, a medication used to terminate early pregnancies. Like other prescription medications, patients typically take the pill at home. But unlike other prescription medications, FDA required patients to see a medical provider in-person to receive the pill, despite its strong safety record. The Biden Administration temporarily lifted the in-person requirement during the COVID-19 pandemic, allowing patients to receive the pill by mail following a telehealth appointment. FDA has made that change permanent, enabling patients to continue accessing the abortion pill from home post-pandemic. Advocates argue that this move is particularly helpful for low-income patients and those who live in rural areas far from the nearest clinic.
• President Joseph R. Biden signed an executive order primarily aimed at updating federal agencies’ digital platforms. The order instructs several federal department heads to improve the ability of individuals to access public services. The order included three dozen improvements, such as updating online capabilities for passport renewal, Medicare enrollment, student loan repayment, and worker’s compensation claims. President Biden also directed agencies toward joint projects, such as research collaboration between the Office of Management and Budget and multiple agencies to improve how Tribal governments and customers access grants and services.
• In a one-sentence order, the U.S. Supreme Court denied a request to block New York’s vaccine mandate. The regulation requires all New York health care workers to get vaccinated against COVID-19, unless they have a qualifying medical reason to not get vaccinated. A group of New York health care workers requested that the Court prevent the mandate from going into effect because it does not provide a religious exemption. Justice Neil Gorsuch wrote the dissenting opinion, chiding the Court for not upholding the constitutional right of freedom of religion. He stated that “we do not just fail the applicants, we fail ourselves.”
• The Biden Administration released an electric vehicle charging action plan outlining steps for federal agencies to deploy electric vehicle charging stations throughout the country. Funded by the Infrastructure Investment and Jobs Act, the plan will accelerate adoption of electric vehicles for private and public use, “target equity benefits for disadvantaged communities,” and create more union jobs. The first step in the plan is to create a Joint Office of Energy and Transportation to oversee the project, led by the U.S. Department of Energy and the U.S. Department of Transportation.
• The Energy Department issued a final rule that reduces some of its internal rulemaking requirements. The changes will grant agency officials more flexibility in issuing new rules, undoing a 2020 attempt to “create a standardized rulemaking process.” The prior standardized process added steps, including additional analysis of policy options, to the agency’s rulemaking process beyond any statutory requirement. The Energy Department claims the rollback of these requirements will allow the agency to clear its “backlog of missed rulemaking deadlines.”
• The U.S. Department of State issued a temporary rule that allows flexibility for consular officials to waive in-person requirements for certain groups of repeat visa applicants. The temporary rule lasts for two years and lets applicants bypass the usual in-person requirement if they received approval for the same class of visa after August 4, 2019. These applicants can also affirm the validity of their application materials over the phone or by email. The State Department also issued a final rule to reestablish in-person requirements after the two-year period ends.
• Two food safety and environmental advocacy groups filed a lawsuit against the U.S. Environmental Protection Agency (EPA), claiming the agency failed to classify pesticide-coated crop seeds as pesticides. Such classification would subject the seeds to registration and labeling requirements under the Federal Insecticide, Fungicide, and Rodenticide Act. The advocacy groups petitioned EPA to regulate the seeds in 2017, but EPA has not yet granted or denied their request. The groups allege that this delay violates the Administrative Procedure Act, which requires agencies to act on requests “within a reasonable time.” The groups claim the unrestricted use of pesticide-coated seeds has contributed to a reduction of the bee population in the United States.
• The Office of Information and Regulatory Affairs (OIRA) released the Biden Administration’s first semi-annual regulatory Unified Agenda of Regulatory and Deregulatory Actions. The Agenda includes a set of documents detailing each federal agency’s plan for new actions and for implementing legislative mandates, such as requirements in the American Rescue Plan and the Infrastructure Investment and Jobs Act. The Agenda promotes transparency and offers “blueprints for how the Administration plans to continue delivering on the President’s agenda.” Agencies detailed how they will implement the President’s goals of handling the COVID-19 pandemic, fighting discrimination in the housing sector, and reducing the effects of climate change, along with specific plans for new rules in 2022.

WHAT WE’RE READING THIS WEEK

• A team of environmental health and public policy researchers led by Ernani F. Choma of the Harvard University T.H. Chan School of Public Health assessed the health benefits of vehicle emissions regulation in a study published in the Proceedings of the National Academy of Sciences. Choma’s team determined that the United States saved $270 billion in costs and reduced mortality linked to emissions from 2008 to 2017. They also noted that, even though overall air pollution has decreased, greenhouse gas emissions still have increased in the same time frame. The team concluded that to reduce future emissions, lawmakers must enact more stringent policies, such as promoting vehicle electrification and investments in mass transportation.
• The Presidential Commission on the Supreme Court of the United States released their final report summarizing its findings on the role and operation of the Court and analysis of potential Court reforms. The Commission first emphasized the “importance of protecting or enhancing the Court’s legitimacy; the role of judicial independence in our system of government; and the value of democracy and its relationship to the Supreme Court’s decision-making.” It then provided an analysis of the history and reform debates related to the Court and further discussed reforms such as increasing the size of the court, imposing term limits, and limiting the Court’s role. The Commission did not make concrete recommendations but rather provided context, history, and expert opinion on various reforms.
• In an article published in the Stetson Law Review, University of Nebraska-Lincoln’s Laurie Thomas Lee argued that the Fourth Amendment should protect the privacy of personal data collected by smart home devices such as smart speakers, TVs, and doorbells. The Supreme Court has held that the Fourth Amendment requires the government to obtain a search warrant when society has a reasonable expectation of privacy. But because smart home devices share data with third parties such as internet providers, the data fall under an exception to the Fourth Amendment’s protection, Lee explained. But in 2018, the Supreme Court ruled that this third-party exception does not apply to cell-site location data, because even though it is shared with cell phone providers, users have a reasonable expectation of privacy in data that is not shared voluntarily. Lee suggested that as smart home devices become more common, the data they collect should similarly receive Fourth Amendment protection, especially given the heightened expectation of privacy in the home.

FLASHBACK FRIDAY

• In an essay in The Regulatory Review, Simon Haeder, public policy professor at Penn State University, and Susan Webb Yackee, public affairs and political science professor at the University of Wisconsin-Madison, discussed OIRA’s understudied yet important influence on regulatory affairs. Haeder and Yackee emphasized the outsized influence that lobbying groups can have on OIRA in their review and approval of agency regulations. For instance, they found that increased lobbying activity directly correlated with more textual changes in drafted rules. Haeder and Yackee concluded that OIRA’s role as a gatekeeper should not be ignored as the agency “holds crucial implications for rulemaking and the content of public policy.”