Week in Review

IN THE NEWS

• The U.S. Court of Appeals for the Fifth Circuit ruled that the Patient Protection and Affordable Care Act’s requirement that every American have health insurance was unconstitutional. It sent the case back to a federal district court to decide whether the entire law should be struck down. President Donald J. Trump called the decision a “win for all Americans” but claimed that it “will not alter the current healthcare system.”
• The U.S. Department of Health and Human Services (HHS) proposed two new rules intended to increase the availability of organs by removing financial barriers to organ donation and improving accountability of organizations involved in organ procurement. “Our broken system of procuring organs and supporting kidney donors’ costs thousands of American lives each year,” HHS Secretary Alex Azar said, adding that “we’re going to stop looking the other way while lives are lost.”
• The U.S. Food and Drug Administration (FDA) announced marketing approval for two new brands of cigarettes that contain significantly reduced levels of nicotine. FDA stated that authorization of the sale of these new cigarettes, called Moonlight and Moonlight Menthol and manufactured by 22nd Century Group, “is appropriate for the protection of the public health because of, among several key considerations, the potential to reduce nicotine dependence in addicted adult smokers.”
• The Internal Revenue Service issued a proposal to expand the category of businesses whose top executives would be limited in the tax deductions they may claim for performance-based pay. The rule would prevent executives from taking deductions on performance-based compensation over $1 million if they work for publicly held companies—those that register their securities with the U.S. Securities and Exchange Commission (SEC) and sell them on a public exchange.
• The SEC proposed amending the definition of “accredited investor” to increase access in startups before going public. Chair Jay Clayton stated that the current definition “takes a binary approach to who does and does not qualify based only on a person’s income or net worth.” The test would still require a salary of at least $200,000 and a net worth above $1 million.
• The U.S. Department of Agriculture (USDA) extended public comment for its final rule on hemp production. The rule would clarify regulations governing hemp’s legal production. U.S. Senators Mark Warner (D-Va.) and Tim Kaine (D-Va.) asked USDA to relax current regulations, including the maximum level of tetrahydrocannabinol (THC). They explained that “hemp growers could take all the necessary steps and precautions to produce hemp according the guidelines and still produce hemp plants that exceed the 0.5% THC concentration.”

WHAT WE’RE READING THIS WEEK

• Partisan conflict causes increased use of administrative rulemaking procedures, Graeme T. Boushey of the University of California, Irvine Department of Political Science and Robert J. McGrath of the Schar School of Policy and Government at George Mason University argued in an article for the Journal of Public Administration Research and Theory. Boushey and McGrath found that states with legislatures divided along party lines had a three to seven percent increase in the number of proposed and adopted rules. They concluded that bureaucracies “may play an essential role in policymaking when legislative polarization is high” by ensuring that “the wheels of government do not simply grind to a halt.”
• Professor Richard Frankel of the Drexel University School of Law argued that courts should not adhere to Chevron deference—siding with an agency’s interpretation of a rule so long as that interpretation is reasonable—in the immigration context. Frankel described how Chevron deference applies to “agency” interpretations, and the Attorney General, rather than an agency, makes immigration decisions. He proposed applying a lower standard of deference to ensure the Attorney General does not gain unilateral power without any significant checks.
• A new report by Alex Tausanovitch, Chelsea Parsons, and Rukmani Bhatia of the Center for American Progress examined the link between partisan gerrymandering and state legislation on gun control. The authors argued that, despite shifts in public opinion, several state legislatures have failed to adopt gun reforms because gerrymandering keeps conservative lawmakers in control of state policymaking. To remedy this problem, they concluded, state district boundaries should be drawn by independent state commissions and based on voter preference.

FLASHBACK FRIDAY

• In a 2017 essay for The Regulatory Review, Sean Speer of Canadian think tank Macdonald-Laurier Institute and Washington, DC think tank R Street described approaches to the review of executive regulation favored by nations with parliamentary systems of government. Speer argued that lessons from these countries could inform U.S. lawmakers on how best to strengthen congressional oversight of executive action and to further the Trump Administration’s deregulatory agenda.