Week in Review

IN THE NEWS

• President Trump retreated from last week’s promise to include a citizenship question on the 2020 census form. The President had directed the U.S. Department of Justice to pursue legal avenues to add the question despite the U.S. Supreme Court’s June 27 decision that the Commerce Department failed to justify inclusion of the citizenship question on the census with a genuine rationale. In the coming days, President Trump reportedly will issue an executive order directing federal agencies to share available citizenship data with the Commerce Department.
• The U.S. District Court for the District of Columbia invalidated a regulation from the U.S. Department of Health and Human Services (HHS) requiring pharmaceutical companies to disclose drug prices during advertisements on television. “No matter how vexing the problem of spiraling drug costs may be,” Judge Amit Mehta ruled, “HHS cannot do more than what Congress has authorized.” HHS spokesperson Caitlin Oakley reportedly stated that HHS had hoped for a more favorable ruling because “putting drug prices in ads is a useful way to put patients in control and lower costs.”
• The California State Assembly passed a bill that requires companies to provide benefits for independent contractors, citing analysis suggesting that independent contractors make up 30 percent of workers in California. Uber CEO Dara Khosrowshahi, Lyft CEO Logan Green, and Lyft co-founder John Zimmer previously had warned that such a bill would affect the flexibility and freedom that ride-sharing drivers have. “They can sit here and say they care about workers and they would love to provide them benefits,” California State Assembly member Lorena Gonzalez reportedly stated, concluding that companies would not provide such benefits “unless we force them to.”
• The U.S. Court of Appeals for the Second Circuit ruled that President Donald J. Trump violated the First Amendment of the U.S. Constitution by blocking certain Twitter users. U.S. Circuit Judge Barrington Parker wrote that “once the President has chosen a platform and opened up its interactive space to millions of users and participants, he may not selectively exclude those whose views he disagrees with.” Later that day, two New York politicians sued U.S. Representative Alexandria Ocasio-Cortez (D-N.Y.) on similar grounds.
• The House Committee on Homeland Security conducted a hearing on federal use of facial recognition technology and its impact on individual privacy, civil liberties, and data security. The hearing follows the recent emergence of evidence suggesting that multiple federal agencies, including the Federal Bureau of Investigation and U.S. Immigration and Customs Enforcement, have used facial recognition technology to identify individuals found in state drivers’ license databases. Senator Patrick Leahy (D-Vt.) called federal searches of state license records “a massive breach of privacy and trust,” noting that “Americans don’t expect—and certainly don’t consent—to be surveilled just because they get a license or ID card.”
• U.S. Commerce Secretary Wilbur Ross announced that the U.S. Department of Commerce will allow American companies to sell products to Chinese telecommunications giant Huawei “where there is no threat to national security.” Huawei, however, will remain on the Department’s so-called Entity List, a list of foreign entities that must acquire a special license before doing business with American companies. The change comes after President Trump reportedly stated that he would ease restrictions on Huawei following a meeting with Chinese President Xi Jinping.
• The U.S. Court of Appeals for the Fourth Circuit held that the state of Maryland and the District of Columbia lacked legal standing to bring a lawsuit alleging that President Trump’s financial interest in properties owned by the Trump Organization violated the so-called Emoluments Clause of the U.S. Constitution. Noting the “attenuated and abstract” nature of the plaintiffs’ asserted interest in the case, U.S. Circuit Judge Paul Niemeyer questioned “whether this action against the President is an appropriate use of the courts, which were created to resolve real cases and controversies between the parties.” Maryland Attorney General Brian Frosh and District of Columbia Attorney General Karl Racine called the decision “clear error” and stated that they will continue “efforts to hold President Trump accountable for violating the Nation’s original anti-corruption laws.”
• The American Lung Association (ALA) and the American Public Health Association (APHA) filed a petition in the U.S. Court of Appeals for the D.C. Circuit, challenging the U.S. Environmental Protection Agency’s (EPA) new Affordable Clean Energy rule. The rule, scheduled to go into effect in September, would scale back the Obama Administration’s Clean Power Plan to reduce power plant greenhouse gas emissions. The ALA and APHA claimed that “in repealing the Clean Power Plan and adopting the ACE rule, EPA abdicates its legal duties and obligations to protect public health under the Clean Air Act.”
• After four years of discussions, African leaders introduced a landmark free-trade agreement across 55 nations known as the African Continental Free Trade Agreement (AfCFTA). If ratified, AfCFTA would unite over a billion people and create a $3.4 trillion economic bloc. Despite reports that Nigerian officials were concerned about the possibility that AfCFTA would flood low-priced goods into the Nigerian market, President Muhammadu Buhari signed the agreement, stating, “Our position is simple, we support free trade as long as it is fair and conducted on an equitable basis.”

WHAT WE’RE READING THIS WEEK

• Immigration judges should not receive absolute judicial immunity, according to a new article by Jacqueline Stevens of Northwestern University, Heather Schoenfeld of Boston University, and Elizabeth Meehan, a PhD candidate at George Washington University, in Law & Inequality: A Journal of Theory and Practice. The authors examined a 2017 decision from the U.S. Court of Appeals for the Eleventh Circuit, which relied on the so-called absolute immunity doctrine in finding that an immigration judge could not be held liable for ordering guards to force an observer from an immigration hearing. In concluding that the Eleventh Circuit erred in its decision, the authors argued that the growing politicization of the immigration judge appointment process increases the importance of public access to hearings. Providing absolute judicial immunity to immigration judges who block this access, the authors said, is counter to the rule of law.
• The U.S. legal system systematically favors automobiles over other forms of transportation, according to Gregory Shill of University of Iowa College of Law in The Atlantic. Shill catalogued various ways that American law encourages car use, including through zoning laws that mandate low-density development, tax breaks that reward car owners, and comparatively lax vehicle safety regulations. Reducing car use and improving pedestrian safety could be accomplished through legislative action and recognition of a constitutional right to walk, Shill argued.
• Daniel Horowitz, an organic chemist and former managing director of the U.S. Chemical Safety Board, wrote an op-ed in The New York Times urging U.S. agencies to ban the use of hydrogen fluoride. Hydrogen fluoride, according to Horowitz, is particularly hazardous to human health because its chemical properties can cause severe burns and result in internal hemorrhaging. Horowitz highlighted how the recent oil refinery explosion in Philadelphia last month could have resulted in a number of fatalities had the facility’s stored hydrogen fluoride been released.