Week in Review

IN THE NEWS 

• The U.S. Supreme Court stayed the rulings of two lower courts that restricted the Biden Administration’s ability to communicate with social media platforms to monitor the spread of misinformation about COVID-19 and elections, pending further proceedings. Two lower courts found that the Biden Administration likely had violated the First Amendment by pressuring social media platforms to adopt certain moderation practices. The Supreme Court agreed to hear the case to decide whether the Biden Administration had encouraged censorship of social media posts in violation of the First Amendment. In a dissent to petitioners’ stay application, Justice Alito expressed concern that the ruling “will be seen by some as giving the Government a green light to use heavy-handed tactics to skew the presentation of views” on social media. 
• The U.S. Supreme Court declined to reinstate a Missouri law that would have prevented local and state officials from enforcing federal gun legislation. A lower court had ruled that the law was unconstitutional because—in most cases—state law cannot supersede federal law. Writing for the majority, Justice Neil Gorsuch agreed with the lower court’s prohibition on the “implementation and enforcement” of the state law by public officials in Missouri. The law included provisions that extended the application of the right to bear arms in the Second Amendment, and stated that any federal restrictions on gun ownership would deprive “law-abiding citizens” in Missouri of their right to own and use guns. 
• The U.S. Senate confirmed the nomination of Michael Whitaker to lead the Federal Aviation Administration (FAA) in a 98-0 vote. Whitaker previously served as deputy administrator at the FAA from 2013 to 2016. Prior to joining the FAA, he worked at several major airlines, including working as director and senior vice president of United Airlines. Whitaker will fill the position, which has been vacant for 18 months, and will lead the FAA while it addresses air traffic controller shortages and a sharp increase in near-miss accidents at airports.
• The Georgia Supreme Court upheld the state’s six-week abortion ban. The court overturned a lower court’s ruling declaring the ban unconstitutional. Writing for the majority, Justice Verda Colvin explained that Georgia courts have “no authority to defy now-controlling United States Supreme Court precedent” and referenced the U.S. Supreme Court’s Dobbs v. Jackson Women’s Health Organization decision, which held there was no constitutional right to abortion. Georgia Governor Brian Kemp praised the decision for “ensuring the lives of Georgians at all ages are protected.” Andrea Young, executive director of the ACLU of Georgia, expressed that the “ruling is not the end of this fight for women’s health care.”
• The Department of Homeland Security issued a proposed rule to revise the H1-B program, which allows domestic employers to hire nonimmigrant workers for skilled occupations. The proposed rule would clarify that permit applicants must have a degree in the field for which they are seeking employment in the United States. Other provisions in the proposed rule are designed to create greater flexibility for employers seeking to provide benefits for applicants and to improve the integrity of the application process. The Department noted that some proposed changes may impact other nonimmigrant employee programs, such as the program for temporary agricultural employees.
• The U.S. Environmental Protection Agency (EPA) announced a proposal to ban most uses of trichloroethylene (TCE), an “extremely toxic” chemical used in furniture cleaning products, brake cleaners, and auto repair services. EPA’s proposed rule would halt most uses of TCE within a year, with limited exceptions for electric vehicle batteries and other uses. EPA previously found that TCE causes cancer, damages immune and reproductive systems, and damages fetal development. The proposed ban is part of the Biden Administration’s initiative to protect Americans from carcinogens in their workplaces and homes. 
• The U.S. Consumer Product Safety Commission proposed a rule that would set safety standards for infant and toddler rockers to reduce the risk of injury to children. The proposed rule would set mandatory safety standards for the rockers; current standards for infant product safety are voluntary. The proposed standards are designed to address dangers related to the structural integrity of the rockers and would mandate “performance requirements, warnings, and instructional literature.” 
• The U.S. Environmental Protection Agency (EPA) found that lead emissions from certain aircraft engines could endanger public health, qualifying those aircraft for emissions regulation under the Clean Air Act. Under the Clean Air Act, EPA must issue regulations whenever the agency finds that a source of emissions poses a danger to the public health or welfare. EPA noted in its findings that the Federal Aviation Administration predicts that American aircraft will burn nearly 185 million gallons of fuel containing lead by 2026, posing significant public health risks. EPA Administrator Michael S. Regan argued that the finding allows EPA “to propose new standards to protect all communities from the serious threat of lead pollution from aircraft.”

WHAT WE’RE READING THIS WEEK

• In a working paper released by the National Bureau of Economic Research, Benjamin J. McMichael, a professor at the University of Alabama School of Law, and Sara Markowitz, a research professor of economics at Emory University, argued that language used in state laws that limits nurse practitioners’ scope of practice creates difficulties for researchers and policymakers. McMichael and Markowitz explained that there is little uniformity in the wording of various state laws concerning what patient care a nurse practitioner can provide without physician supervision. McMichael and Markowitz recommended that policymakers use the terms “practice authority” and “prescription authority” to describe the work of nurse practitioners to support clearer analyses on how scope of practice laws impact public health.
• In an article in the North Carolina Journal of Law and Technology, Justin Hurwitz, academic director at the Center for Technology, Innovation, and Competition at Penn Carey Law, argued that regulators should wait to issue rules on “dark patterns,” design features of websites meant to influence specific customer behavior, such as hiding subscription cancellations in a maze of menus. In response to Congressional hearings on regulating coercive algorithms online, Hurwitz explained that dark patterns are not always distinguishable from ordinary advertising, so regulation without clear definitions could harm designers and companies. Hurwitz concluded that regulators should refrain from issuing broad rules because Section 5 of the Federal Trade Commission Act, which prohibits “unfair or deceptive practices,” affords the government enough authority to rein in the most harmful dark patterns. 
• In a study for Resources for the Future (RFF), Jordan Wingenroth a research associate at RFF, and RFF fellows Brian C. Prest and Kevin Rennert evaluated the expected economic benefits of meeting the worldwide decarbonization goals of the Paris Agreement. Wingenroth, Prest, and Rennert estimated that if the global community can reach the most ambitious of the Paris Agreement’s climate goals, staying within 1.5° Celsius of pre-industrial global temperature levels, the global economy would generate over $600 trillion in total benefits by the year 2100. According to Wingenroth, Prest, and Rennert, these predictions show that short-term reductions in greenhouse gas emissions can prevent almost half of the expected economic losses from global climate change.

EDITOR’S CHOICE

• In an essay in The Regulatory Review, Bill Baer, former director of the Bureau of Competition at the Federal Trade Commission, and Caitlin Chin-Rothmann, a fellow at the Center for Strategic and International Studies, analyzed whether antitrust law has the power to regulate how social media companies police speech on their platforms. Baer and Chin argued that antitrust laws, which promote competition and prohibit monopolies, do not provide regulators enough authority to force dominant tech platforms to rein in the harmful effects of unregulated speech, including 2020 election fraud and COVID-19 misinformation. Baer and Chin concluded that, without changes to antitrust law or courts’ attitude toward it, major social media companies are relatively free to permit the dissemination of disinformation.