Week in Review

IN THE NEWS

• The U.S. Department of Justice’s Drug Enforcement Administration proposed a new rule that would reclassify marijuana from Schedule I to Schedule III of the Controlled Substances Act. This rule reflects the scientific and medical evaluation undertaken by the Department of Health and Human Services (HHS) in response to a request from President Joe Biden to review the scheduling of marijuana. HHS considered factors such as marijuana’s accepted medical use, abuse potential, and potential for creating physical or psychological dependence. A rescheduling of marijuana would not legalize marijuana for adult use, but it would categorize marijuana alongside some prescription drugs and allow certain federal tax deductions for marijuana businesses.
• South Carolina Governor Henry McMaster signed a bill into law banning gender-affirming care for minors. The law prohibits doctors from providing “gender transition procedures,” such as puberty-blocking drugs, cross-sex hormones, and gender reassignment surgery. The law only applies to these acts when done “for the purpose of assisting an individual with a physical gender transition” and doctors may still perform them for the treatment of diseases, such as prostate or breast cancer. South Carolina is the 25th state to ban or restrict gender-affirming care for minors.
• The Consumer Financial Protection Bureau (CFPB) issued an interpretive rule clarifying the consumer protections available under “Buy Now, Pay Later” loans, which allow consumers to purchase a product fully via credit and an initial down payment with the expectation that they will pay back the loan’s remainder over several installments. A CFPB study stated that the Buy Now, Pay Later loans encourage overextension and excessive debt accumulation. The rule explains that consumers are entitled to many of the same Truth in Lending Act protections that apply to traditional credit cards. For instance, lenders must provide disclosures spelling out fees, pricing structures, and their rights involving billing disputes and refunds.
• The U.S. Department of Transportation’s Federal Railroad Administration (FRA) announced two final rules mandating that railroads “develop certification and training programs for train dispatchers and signal employees.” These rules reflect ongoing efforts from the Biden Administration to strengthen rail safety in light of recent train derailments and data indicating concerns from rail workers, their families, and the general public. The rules require railroads to submit certification programs to the FRA for a competency and safety assessment and ensure employees receive periodic safety training. Transportation Secretary Pete Buttigieg stated that these rules will guarantee that there are “competent, qualified teams managing railroad operations.”
• The U.S. Federal Communications Commission (FCC) issued a final rule that reestablished the agency’s jurisdiction over “broadband internet access services.” The FCC reclassified these access services as telecommunication services as defined in Title II of the Communications Act. The rule also reinstated prohibitions of manipulating what content access services display based on paid arrangements with those content providers. In addition, the rule established general conduct standards for the access providers which will operate on a “case-by-case basis” to cover access provider policies not explicitly addressed by the rule. Some lawyers have described this rule change as a step toward a “fast, open, and fair” internet for all consumers.
• The Centers for Medicare & Medicaid Services proposed a rule that would establish a new mandatory Medicare payment model to test the impact of performance-based incentive payments on the kidney transplant system. The Increasing Organ Transplant Access Model (IOTA Model) would test whether incentive payments paid to participating kidney transplant hospitals will increase access to kidney transplants for patients with end-stage renal disease while preserving the quality of patient care and reducing Medicare expenditures. The IOTA Model aims to increase access to kidney transplants, improve the quality of care for people seeking transplants, reduce disparities among individuals undergoing the transplant process, and increase the efficiency and capability of participating hospitals.
• The U.S. Department of Energy published a final rule revising procedures for including a Social Security Number (SSN) on mailed documents from the Energy Department. The revisions put the Energy Department in compliance with the SSN Fraud Prevention Act of 2017 mailing restrictions. The rule, however, allows for the Energy Department to include SSNs on documents if the inclusion of the SSN is “necessary.” The rule defines necessary as when it is required by law or when it fulfills a “compelling business need.”

WHAT WE’RE READING THIS WEEK

• In a Brookings Institution report, Zoe Wynn, a former Research Intern for the Governance Studies Program at The Brookings Institution, Hannah Fried, Executive Director for All Voting is Local, and Norman Eisen, a Senior Fellow for the Governance Studies Program at The Brookings Institution, argued that confidentiality provisions, if codified into state law, could help protect female election officials amid the expected surge of election denialism in the 2024 presidential election. The Wynn team explained that female election officials receive the majority of threats and harassment from election deniers—which are typically generated by men and often include sexual or misogynistic language. Wynn and her coauthors noted that, given that females are overrepresented in the electoral workforce, these threats raise concerns about election security. The Wynn team suggested a solution that accounts for the gendered nature of the issue: adopting confidentiality provisions in state legislation to protect the personal information of female election officials, modeled after the Violence Against Women Act of 1994.
• In a report published by the Urban-Brookings Tax Policy Center, Janet Holtzblatt and Robert McClelland, both senior fellows at the Tax Policy Center, and Gabriella Garriga, a Tax Policy Center research analyst, examined racial disparities in the benefits families receive from the U.S. tax code’s home mortgage interest deduction. The Holtzblatt team found Black families received 54 percent and Hispanic families received 38 percent of the average benefit for all families in 2019, whereas white families received 21 percent more than the average benefit. Although incoming changes to the Tax Cuts and Jobs Act will double the share of total families who claim this deduction, racial disparities in benefits will not significantly diminish. Holtzblatt and her coauthors suggested that President Joseph Biden’s proposed tax credit for first-time homebuyers may help bridge the racial gap in homeownership and improve Black and Hispanic families’ access to tax subsidies, such as the home mortgage interest deduction.
• In a forthcoming article in the Georgetown Journal of International Law, Francesco Paolo Patti, a professor of law at the University of Bocconi, discussed the European Union’s Market in Crypto Assets (MiCA) regulation and its potential impacts on Initial Coin Offerings (ICOs). An ICO raises funds for a company or project by offering the public an option to invest in cryptocurrency like an initial public offering does for public companies. Patti explained how legal uncertainty in recent years has led to fewer ICOs and contends that regulations like MiCA could cause a resurgence in the number of ICOs. For example, Patti described how MiCA standardizes information being published about crypto assets in ICOs and provides for legal liability for incomplete or misleading information, which can better help investors compare assets and make informed investment decisions. Patti concluded these regulations may create a resurgence in ICOs.

EDITOR’S CHOICE

• In an essay in The Regulatory Review, Andrew Garber, a counsel within the Voting Rights and Elections Program at the Brennan Center for Justice, and Will Wilder, a Singer fellow for the Brennan Center for Justice’s Voting Rights and Elections Program, argued that election officials’ regulatory discretion is essential for protecting voting access. Garber and Wilder explained that this regulatory discretion allows election officials to protect voting access by, for example, allocating resources to increase accessibility for disabled voters or establishing regulations that prohibit impeding or harassing voters. Garber and Wilder argued that, following emergency efforts by election officials during the COVID-19 pandemic, many state legislatures have sought to restrict election officials’ regulatory power, which would threaten election officials’ ability to protect voting access.