Week in Review

IN THE NEWS

• By a 223-204 vote, the U.S. House of Representatives passed gun control legislation in response to the mass shootings in Uvalde, Texas and Buffalo, New York. The legislation would prohibit the sale of semi-automatic guns to individuals under the age of 21, ban the sale of large-capacity magazines, and compensate people who give up such magazines under a buyback program. Passage of the bill took place after a House of Representatives hearing at which lawmakers and victims of gun violence pleaded for stricter gun control. Experts do not expect the legislation to pass in the U.S. Senate, but claim that a group of Senators are negotiating a narrower gun-control package focused on strengthening background checks and mental health assessments.
• The U.S. Supreme Court held that workers involved in loading and unloading airplane cargo are a “class of workers engaged in foreign or interstate commerce” exempted from the Federal Arbitration Act, which otherwise requires courts to enforce arbitration agreements. Many large corporations implement such agreements, which require arbitration as an alternative to adjudication in court. Although the Court ruled in favor of cargo workers, it rejected their argument that the exemption applies to “virtually all employees of major transportation providers.” Rather, the Court reasoned that cargo workers were unlike employees in an airline’s accounting department because handling cargo is intrinsic to “interstate commerce.” The Court noted that to determine whether an employee falls under the exemption “will not always be so plain,” when job duties do not relate directly to the transport of goods across borders.
• President Joseph R. Biden announced new executive actions in support of U.S. clean energy manufacturing. The President invoked the Defense Production Act to authorize the U.S. Department of Energy to expand domestic manufacturing of clean energy technologies by accelerating the production of solar panel parts. The President also outlined new federal procurement measures intended to stimulate the domestic solar manufacturing industry. In addition, the President initiated a two-year period during which solar modules from Cambodia, Malaysia, Thailand, and Vietnam can be imported free of certain duties. The President announced a pause on new solar tariffs amid an ongoing U.S. Department of Commerce investigation into whether Chinese solar manufacturers have avoided tariffs by moving their operations into Southeast Asia. The President stated that his latest measures are intended to ensure that the United States will have an adequate supply of solar modules until domestic manufacturing can expand to meet the country’s needs.
• The U.S. Department of Health and Human Services (HHS) launched a review of the U.S. Food and Drug Administration’s (FDA) inspection of Abbott Laboratories’ Michigan manufacturing plant and the agency’s handling of Abbott’s infant formula recall. HHS announced that it aims to determine whether FDA followed appropriate policies and procedures in inspecting the manufacturing facilities and overseeing Abbott’s voluntary recall. FDA Commissioner Robert Califf testified before a U.S. Senate committee that FDA was “too slow” in inspecting the Abbott facility after reports of possible bacteria contamination.
• The Chair of the U.S. Securities and Exchange Commission (SEC), Gary Gensler, gave a speech previewing forthcoming updates to SEC market rules governing the purchase and sale of stocks. Gensler noted that the new rules will target six key areas, including “payment for order flow,” which is a form of monetary incentive that allows retail trading platforms, such as Robinhood, to make money for executing stock trades. This practice, Gensler explained, can distort the market and hurt customers by creating stock price variability based on the size of the incentive. Robinhood Financial’s chief legal officer, Dan Gallagher argued that SEC regulation of payment for order could make it harder for inexperienced investors, who often opt for commission-free services such as Robinhood, to start trading stocks.
• New York Governor Kathy Hochul signed a ten-bill legislative package to strengthen the state’s gun-control laws. The legislative package includes bills that prohibit individuals under the age of 21 from purchasing semiautomatic rifles and require social media networks to outline how they will respond to credible threats of gun violence. The legislative package also amends the state’s existing firearm licensing statute to ensure that county officials consider risk reports provided by mental health professionals before issuing an individual a firearm license.
• A federal judge in Oklahoma ruled that the state’s lethal injection method is constitutional. The ruling followed an eight-year-old lawsuit in which inmates argued that the sedative midazolam—a component of Oklahoma’s three-drug execution method—does not adequately anesthetize inmates and creates a risk of severe suffering in violation of the Eighth Amendment. The judge reasoned that the plaintiffs had “fallen well short of clearing the bar set by the Supreme Court” for lethal injection challenges and that midazolam renders inmates largely insensitive to pain. Oklahoma Attorney General John O’Connor plans to seek execution dates for the 43 inmates on Oklahoma’s death row.
• HHS extended the American Rescue Plan Act spending deadline for states to expand home and community-based services, such as home health care, meal deliveries, and case management services, for people receiving Medicaid. States originally had a three-year period, from April 1, 2021 through March 31, 2024, to use American Rescue Plan funds to strengthen and enhance home and community-based services under Medicaid. The extended deadline will allow Medicaid beneficiaries to continue to receive high-quality care in the setting of their choice for an additional year. Centers for Medicare & Medicaid Services Administrator Chiquita Brooks-LaSure stated that the extension provides states with “the time and resources to strengthen connections to care at home and in communities.”

WHAT WE’RE READING THIS WEEK

• In an article issued by the Center for American Progress, Mia Ives-Rublee, director for the Disability Justice Initiative, Rose Khattar, associate director for rapid response and analysis, and Lily Roberts, managing director for economic policy, argued that the federal government must take steps to remove employment obstacles faced by disabled individuals. Ives-Rublee, Khattar, and Roberts noted that the 2021 unemployment rate among Americans with a physical, mental, or emotional disability was 10.1 percent, compared to 5.1 percent among those without such a disability. Given this disparity, Ives-Rublee, Khattar, and Roberts proposed that policy measures removing employment obstacles could increase overall economic growth and achieve more equitable employment outcomes. They called upon the federal government to increase funding for the Equal Employment Opportunity Commission and to eliminate Section 14(c) of the Fair Labor Standards Act (FLSA), which permits employers to pay disabled employees less than the federal minimum wage.
• In an article in the Stanford Law Review, Alexandra Klass, a professor at the University of Minnesota Law School, and several coauthors considered how clean energy can support a more stable, low-carbon electric grid. They argued that disjointed regulatory and governance schemes result in energy policy that fails to achieve environmental and reliability goals, despite technological feasibility. To address disaggregation, Klass and her coauthors emphasized the need for energy transmission grid planning and expansion coordinated across regions at the federal level.
• In a Brookings Institution report, Kenneth Wong, a professor at Brown University, and Coral Flanagan, a doctoral student at Vanderbilt University, compared federal regulation of education policy during the Trump and Biden presidencies. Wong and Flanagan found that President Biden was more likely than President Donald Trump to take unilateral executive action in education, particularly on equity issues. Wong and Flanagan also argued that when Trump took executive action in education, he revoked protections for historically marginalized students, such as non-discriminatory discipline and investigations into civil rights violations, while advocating for protections for private school and religious students, including the right to pray in schools. Wong and Flanagan suggested that, although both President Biden and President Trump used executive and administrative actions to impact education policy, states often resisted these acts when they pertained to issues such as requiring vaccine mandates and teaching critical race theory.

EDITOR’S CHOICE

• In an essay for The Regulatory Review, Paul Stephan, an associate at Cohen Milstein, argued that to limit the executive branch’s emergency powers, a clear definition of what constitutes an emergency is needed. Stephan explained that, although an emergency may seem sudden, many emergent events are the result of longstanding problems. Stephan cautioned that ignoring a problem can result in an emergency, which can allow executives to ignore problems so as to capitalize on emergencies to remake policy.