Week in Review

IN THE NEWS

• A coalition of 19 states and the District of Columbia filed a lawsuit against the U.S. Department of Homeland Security (DHS) challenging new regulations that modify the Flores Settlement, which provides protective standards for placing children in detention centers. Although the Flores Settlement prevented DHS from detaining children for more than 20 days, the new rule would permit detention of families seeking asylum until their immigration hearings. The coalition argued that the new rule would undermine state agencies’ mandate to ensure child welfare, and California Attorney General Xavier Becerra said that the rule “callously puts at risk the safety and well-being of children.”
• In a 3—1 ruling, the National Labor Relations Board (NLRB) held that misclassifying workers as independent contractors does not violate federal labor law, reversing a past decision. Under the National Labor Relations Act (NLRA), it is illegal for an employer to punish workers for unionizing. The NLRB, however, stated that misclassifying workers did not “inherently threaten” the workers for unionizing. In dissent, board member Lauren McFerran argued that the majority failed “to recognize the chilling effect of ‘pure’ misclassification on employees’ exercise of statutory rights” and that the majority turned the NLRA “on its head.”
• President Donald J. Trump nominated Eugene Scalia—son of the late Supreme Court Justice Antonin Scalia and a partner at Gibson, Dunn & Crutcher LLP—to be the U.S. Secretary of Labor. President Trump previously had announced his intent to nominate Scalia, whom he described as “a lawyer with great experience working with labor and everyone else.” Opposing Scalia’s nomination, Lee Saunders, president of the American Federation of State, County, and Municipal Employees, had stated that Scalia’s record as a lawyer “indicates support for unchecked corporate power and neglect of the welfare of working people.”
• Federal Election Commission (FEC) Vice Chair Matthew Petersen submitted his resignation and will step down formally at the end of August, leaving the FEC with only three of six commissioners. Without a quorum of four commissioners, the FEC cannot vote on proposed regulatory or enforcement actions. FEC Chair Ellen Weintraub promised that the remaining commissioners would “shine a strong spotlight on the finances of the 2020 campaign,” but emphasized that President Trump should quickly nominate new commissioners.
• The U.S. Drug Enforcement Agency (DEA) announced that it will approve more companies to grow marijuana legally for scientific and medical research after it creates new regulations that will govern the marijuana growers program. In 2016, the DEA created a program allowing companies to apply to become registered growers, but applications received under the program have not yet been processed. National Organization for the Reform of Marijuana Laws executive director Erik Altieri criticized the decision, stating that “the DEA has failed to take any steps to follow through on its promise to facilitate clinical cannabis research, and today’s announcement makes it clear that this foot-dragging will continue.”
• The U.S. Court of Appeals for the Seventh Circuit upheld an order that prevented Indiana from removing voters from using a program, the Interstate Voter Registration Crosscheck, to remove voters from voting rolls without any notice. Holding that the law violated the National Voter Registration Act of 1993 (NVRA), Judge Tanya Walton Pratt wrote that “Indiana equates double registration with double voting. But the two are quite different.” She added that removing a voters name without notice would undo all the work someone had spent registering, stating “laws such as the NVRA ensure that the states do not undo that work without good reason.”
• Judge Howard Sachs of the U.S. District Court for the Western District of Missouri temporarily blocked a new Missouri law banning abortions after eight weeks gestational age. Existing law in Missouri restricts access to abortion before fetal viability, currently defined by state statute as “that stage of fetal development when the life of the unborn child may be continued indefinitely outside the womb,” and which current science generally places between 22 and 24 weeks. “What little abortion access in Missouri is left will stay in place for the time being,” said Alexis McGill Johnson, acting president and CEO of Planned Parenthood Federation of America.
• Wisconsin Governor Tony Evers directed the state’s Department of Natural Resources to address polyflouroalkyl substances (PFAS), also known as “forever chemicals,” that can contaminate water supplies and threaten human health. His statement comes a week after issuing an executive order focused on the regulation of PFAS, including developing standards to protect public health and examining whether the natural resources damages claims under state and federal law could compensate PFAS impacts to natural resources. He stated that he is “committed to protecting our state’s natural resources and ensuring every Wisconsin has access to clean drinking water.”
• The province of Ontario appealed a decision by the Court of Appeal for Ontario that upheld the Canadian government’s carbon tax program as constitutional to the Supreme Court of Canada. In the decision, the Court of Appeal rejected Ontario’s argument that the carbon tax violated principles of federalism, holding that the act fell within the federal government’s jurisdiction over matters of “national concern.” A spokesperson for Canadian Finance Minister Bill Morneau reportedly called the appeal “costly and unnecessary.”

WHAT WE’RE READING THIS WEEK

• According to Micah Berman of The Ohio State University Moritz College of Law, the Family Smoking Prevention and Tobacco Control Act of 2009 has failed to achieve any meaningful reduction in tobacco use. Although the Tobacco Control Act granted the U.S. Food and Drug Administration broad authority to regulate the sale and distribution of tobacco products, Berman noted that the agency’s major tobacco-related regulatory initiatives have faltered or been blocked by the courts. Berman attributed the apparent impotence of the Act to structural barriers, including internal agency politics and the complexity of the rulemaking process.
• Ashiq Ali of the University of Texas at Dallas, Jill Fisch of the University of Pennsylvania Law School, and Hoyoun Kyung of the University of Missouri at Columbia examined how manager behavior changed after the U.S. Securities and Exchange Commission issued the Regulation Fair Disclosure, which was intended to reduce the amount of unequal access to market information and level the playing field for small investors. They found that, after the regulation, managers circumvented the disclosure requirements by favoring implicit communication with larger investors, reducing the effectiveness of Regulation Fair Disclosure. As a result, Ali, Fisch, and Kyung argued, publicly available information—which did not reflect implicit communications—gave an overly positive outlook on companies, inflating their stock prices.
• Urban housing insecurity is increasing faster than U.S. Department of Housing and Urban Development (HUD) statistics indicate, argued Brian Goldstone of the Media & Journalism Initiative at Duke University’sFranklin Humanities Institute. Last year, HUD reported a 23 percent decline in the rate of family homelessness based on their biannual homeless census conducted in 2017. Goldstone noted that the HUD census counted only those living in homeless shelters or on the streets, failing to consider families forced into relatives’ crowded apartments or living in hotels or cars. Alternate homelessness censuses undertaken by state agencies and housing nonprofits, Goldstone wrote, indicate that the number of families experiencing some level of homelessness may be more than 10 times greater than HUD’s census suggests.