The Regulatory Week in Review: February 10, 2017

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Trump’s travel ban remains halted, Senate confirms DeVos as Education Secretary, and more…

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IN THE NEWS

  • A panel of three judges on the U.S. Court of Appeals for the Ninth Circuit denied the Trump administration’s request to stay a nationwide temporary restraining order, issued by Judge James Robart of the U.S. District Court for the Western District of Washington, that halted enforcement of President Trump’s executive order on immigration from seven majority-Muslim nations. Applying the legal standard for a motion for an emergency stay, the Ninth Circuit panel held that the government had not “shown a likelihood of success on the merits,” and noted that “the government has pointed to no evidence that any alien from any of the countries named in the order has perpetrated a terrorist attack in the United States.”
  • The U.S. Senate narrowly confirmed Betsy DeVos to lead the U.S. Department of Education (DOE). A tie was broken by Vice President Mike Pence, resulting in a 51-50 vote after a contentious week of debate that saw two Republican Senators—Susan Collins (R-Maine) and Lisa Murkowski (R-Alaska) break rank to vote against DeVos. Senator Murkowski reportedly expressed concern with DeVos’ lack of experience with the public school system, but Senator James Lankford (R-Okla.) reportedly criticized that argument by saying that it assumes DeVos “would go into each state and each district and force them to take on public charter schools or offer private schools in rural or urban areas” when in reality her job would be “to assist local areas and states to be able to do education as they choose to.”
  • By a vote of 52-47, the U.S. Senate confirmed Jeff Sessions—a former U.S. Attorney, Alabama attorney general, and, most recently, U.S. Senator representing Alabama—as Attorney General. Sessions, whose confirmation process was marked by strong criticism from Democrats and the invoking of Senate Rule 19 in response to comments made by Senator Elizabeth Warren (D-Mass.), will begin his tenure as Attorney General in the midst of a legal battle over President Trump’s controversial executive order on immigration from seven majority-Muslim countries.
  • President Trump signed an executive order that announced a set of “Core Principles” for regulating the financial system, which include improving the efficiency of regulation, bolstering the competitiveness of U.S. companies, and “empower[ing] Americans to make independent financial decisions.” The order directs the Treasury Secretary to review laws, regulations, and policies in light of the Core Principles, a step that could reportedly pave the way for changes to the Dodd-Frank Wall Street Reform and Consumer Protection Act. Relatedly, President Trump also signed a presidential memorandum that directs the U.S. Department of Labor (DOL) to review its Fiduciary Rule, an Obama Administration regulation aimed at ensuring that financial advisers “give advice that is in the best interest of their customers.”
  • Following months of protest, the U.S. Army granted an easement necessary for the construction of the Dakota Access Pipeline—a decision which follows President Trump’s recent memorandum directing the U.S. Army Corps of Engineers to expedite review of the project and which is a reversal of the Army Corps’ decision in November to deny the easement and consider alternate routes for the pipeline.
  • The Natural Resources Defense Council, the Communications Workers of America, and Public Citizen brought a suit against the Trump administration in the U.S. District Court for the District of Columbia, claiming that President Trump’s executive order that two regulations be repealed for every one new regulation exceeds presidential authority and that, because it requires agencies to consider the costs of regulations but not benefits, it could require federal agencies to regulate in a way that violates their governing statutes.
  • The Federal Communications Commission (FCC) —under the leadership of new FCC Chairman Ajit Pai—reportedly ceased its investigations into “zero-rating,” a practice in which an internet provider ignores customers’ data usage for favored applications but not others. Pai reportedly reasoned that such “free-data plans have proven to be popular among consumers…and have enhanced competition in the wireless marketplace,” but other consumer groups have reportedly complained that such policies can make it hard for non-favored companies to compete. WHAT WE’RE READING THIS WEEK
  • In a Brookings report, Professor Rachel Augustine Porter of the University of Virginia discusses how President Trump’s recent efforts to roll back the regulatory state have “limited scope.” One reason is that, due to the extensive procedural requirements for both repealing existing regulations and creating new ones, “carrying out this deregulatory movement will require the cooperation of a small army of bureaucrats.”
  • Writing for The Hill, Adonis Hoffman, an adjunct professor at Georgetown University and a former chief of staff and senior legal advisor to Federal Communications Commission (FCC) Commissioner Mignon Clyburn, discussed how new FCC Chairman Ajit Pai would alter the agenda of the FCC, arguing that the FCC under Pai “will become known for its pro-business bent,” which stands in stark contrast to former Chairman Tom Wheeler’s “pro-consumer bias.” Among the areas where Hoffman expects to see major changes are privacy regulations and net neutrality.
  • University of California—Berkeley School of Law Professor John Yoo, well-known for his work at the U.S. Department of Justice (DOJ) Office of Legal Counsel during the George W. Bush Administration, recently published an op-ed in which he argues—based on President Trump’s executive orders on a number of fronts—that “even Alexander Hamilton, our nation’s most ardent proponent of executive power, would be worried by now.” Yoo subscribes to what he describes as a “robust vision” of presidential power, but nonetheless takes issue with several of President Trump’s actions by, for example, describing the President’s recent executive order on immigration “an ill-conceived policy made vulnerable to judicial challenge.”