Week in Review

IN THE NEWS

• In his State of the Union address, President Donald J. Trump proclaimed that the U.S. economy was “the best it has ever been,” arguing that “companies are coming back to our country in large numbers thanks to our historic reductions in taxes and regulations.” President Trump also suggested that health care would be his “next major priority” and urged lawmakers to pass legislation to “lower the cost of health care and prescription drugs and protect patients with pre-existing conditions.” U.S. House of Representatives Speaker Nancy Pelosi (D-Calif.), however, stated that the President’s speech “gave no comfort to the 130 million Americans with pre-existing conditions” and accused him of lying about “his actions in court to destroy pre-existing condition protections.”
• President Trump expanded his Administration’s “travel ban”—which imposes travel and immigration restrictions on citizens of certain countries—to include six additional countries. Under the new rules, citizens of Nigeria, Myanmar, Eritrea, and Kyrgyzstan are barred from applying for all U.S. immigrant visas, while citizens of Sudan and Tanzania are barred from the Diversity Visa Program. House Speaker Pelosi criticized the ban, stating that it “threatens our security, our values and the rule of law.”
• Alex Azar, Secretary of the U.S. Department of Health and Human Services, declared a public health emergency for the coronavirus outbreak. In tandem, the White House issued temporary travel restrictions on individuals who might have come into contact with the virus. Secretary Azar acknowledged that the United States might see more coronavirus cases, but stressed that “the full weight of the U.S. government is working to safeguard the health and safety of the American people.”
• The U.S. Food and Drug Administration (FDA) issued emergency approval for the coronavirus diagnostic test. FDA Commissioner Stephen Hahn stated, “We’ve been working closely with our partners across the U.S. government and around the globe to expedite the development and availability of critical medical products.” To date, about 25,000 people have been infected in other parts of the world, especially China and other parts of Asia, but FDA maintained that “the threat to the general American population from this virus is relatively low.”
• The U.S. Environmental Protection Agency (EPA) re-approved the use of glyphosate in pesticides despite concerns over the chemical’s health impacts. The World Health Organization concluded in 2015 that glyphosate is “probably carcinogenic to humans,” and in March 2019 a jury awarded $80 million to a plaintiff whose cancer the court found to be partly caused by exposure to the pesticide Roundup. Nonetheless, in its interim re-evaluation of glyphosate use, EPA stated that “there was insufficient evidence to conclude that glyphosate plays a role in any human diseases.”
• The U.S. Department of Agriculture (USDA) approved a Texas state plan for industrial farming of hemp. Texas Governor Greg Abbott (R) approved a bill legalizing the production and sale of hemp—including edible cannabidiol (CBD)—in July 2019, but federal law requires USDA to approve state plans before the state can issue its own regulations and begin production. Texas Department of Agriculture Commissioner Sid Miller called USDA’s approval “a victory for Texas farmers.”
• The U.S. Department of Defense’s Office of the Inspector General launched its investigation into the Defense Department’s handling of  PFAS—chemicals linked to cancer and hormone disruption—on military land. The investigation comes at the request of a bipartisan Congressional PFAS Task Force created by U.S. Representative Dan Kildee (D-Mich.) in response to increasing evidence of PFAS-contaminated drinking water on military bases.
• The U.S. Court of Appeals for the Eleventh Circuit found that Alabama could be sued for imposing racially discriminatory election practices. Alabama had argued that states were immune from lawsuits, but Judge Charles Wilson wrote that the Voting Rights Act was “intended to intrude on state sovereignty to eradicate state-sponsored racial discrimination in voting.” In dissent, Judge Elizabeth Branch disagreed, writing that “Congress did not unequivocally abrogate state sovereign immunity under Section 2 of the Voting Rights Act.”
• The Federal Court of Appeal of Canada dismissed an appeal by Indigenous groups of the Canadian government’s decision to approve the contentious Trans Mountain pipeline expansion, clearing a major obstacle to the project’s completion. In a unanimous opinion, the court held that the government met its constitutional duty to conduct “reasonable” and “meaningful” consultations with Indigenous people affected by the project. “We will do everything in our power to ensure our sole source of drinking water is protected,” Coldwater Indian Band Chief Lee Spahan stated, adding that “the court’s decision today does not change that.”

WHAT WE’RE READING THIS WEEK

• The so-called nondelegation doctrine—which suggests that the U.S. Constitution limits Congress’s ability to delegate legislative authority to administrative agencies—cannot be squared with the founders’ original understanding of the Constitution, according to Julian Davis Mortenson and Nicholas Bagley of the University of Michigan Law School. In a new working paper, Mortenson and Bagley argued that the founders had no objection to Congress delegating the power to make law, as long as it did not completely abdicate its legislative responsibilities. Moreover, they suggested, the distinction between legislative and non-legislative powers would have made little sense to the founders, who understood governmental powers in relational rather than binary terms.
• There are lessons to be learned from recent experiments in regulating medical devices, wrote Nathan Cortez of the Southern Methodist University Dedman School of Law in a new article for the Yale Journal of Law and Technology. Cortez argued that the U.S. Food and Drug Administration’s regulatory framework for medical devices was in desperate need of review and that new initiatives, although flawed, are encouraging signs of the agency’s willingness to improve regulation in the absence of Congressional guidance.
• In an article in the Arizona Journal of Environmental Law & Policy, Professor Justin R. Pidot of the University of Arizona College of Law described a phenomenon known as “environmental nihilism” that involves efforts to subvert substantive environmental regulation by suppressing information. Current regulations, Pidot argued, constrain the government’s ability to use relevant information, obfuscate data, or prevent new information from being generated. Although he recognized that this approach is not a widespread phenomenon, he highlighted multiple contemporary examples to suggest environmental nihilism is becoming more ubiquitous.

FLASHBACK FRIDAY

• In a 2014 essay for The Regulatory Review, Charles G. Kels, lieutenant-colonel in the U.S. Air Force and then an attorney for the U.S. Department of Homeland Security’s Office of the General Counsel, argued that streamlining interstate licensing standards for physicians could improve the availability of medical services. Kels discussed model legislation drafted by the Federation of State Medical Boards that would allow physicians to obtain expedited licenses in other participating states. In part due to the spread of electronic health services and other technologies, Kels argued, adopting expedited licensing laws could better empower physicians to serve patients in understaffed areas and in times of public emergency.