Week in Review

IN THE NEWS

• The U.S. Department of Homeland Security announced that it will waive federal procurement law to speed up construction of the border wall between the United States and Mexico. Procurement law governs the processes through which the federal government contracts with private businesses to provide goods and services, but under federal immigration law the government may waive those procurement requirements if necessary to prevent unauthorized entry into the United States. Scott Amey, general counsel at the Project on Government Oversight, reportedly said the government’s use of a waiver “could be a recipe for shoddy work and paying a much higher price than they should.”
• The U.S. Food and Drug Administration (FDA) released a statement anticipating a medical product shortage as a result of the coronavirus. FDA emphasized that it would do everything in its power to mitigate any shortage. FDA Commissioner Stephen Hahn stated, “There are no vaccines, gene therapies, or blood derivatives licensed by the FDA that are manufactured in China.” The U.S. Department of State and U.S. Department of Health & Human Services will coordinate with FDA to respond to any upcoming crisis.
• Student advocates sued U.S. Secretary of Education Betsy DeVos, alleging that few defrauded students will be able to meet the U.S. Department of Education’s new standards for fraud victim debt relief. “There is no question this rule is illegal and will not stand up in court,” Project on Predatory Student Lending director Toby Merrill said, adding that it “relies on explanations that defy logic and rest on no evidence.” In its rule, the Education Department stated that the new standards were intended in part to “reduce the strain on the government, and the delay to borrowers” due to excessive claims.
• The U.S. Government Accountability Office (GAO) launched an investigation of the U.S. Department of Agriculture’s (USDA) aid program for farmers impacted by the Trump Administration’s protectionist tariffs. The investigation comes at the request of the Senate Committee on Agriculture, Nutrition, and Forestry, following USDA’s failure to respond to evidence that the aid program was inequitable in its distribution of funds. GAO will assess whether USDA’s aid distribution model distributes funds in proportion to tariff impact and the level of payments made to big agricultural corporations.
• The U.S. Fish and Wildlife Service (FWS) requested comment on a study of the impact of arctic oil and gas exploration surveys on maternal polar bear dens. Andrew Rosenberg, director of the Center for Science and Democracy, reportedly said that the FWS would only take the unusual step of releasing a single report for comment if they wanted to give “industry the opportunity to negate the study.” In its September 2019 environmental impact statement, the U.S. Department of the Interior recommended opening the Arctic National Wildlife Refuge to oil and gas drilling.
• The U.S. Court of Appeals for the Eleventh Circuit unanimously upheld an injunction blocking a Florida law that bars ex-felons unable to pay fines or fees from voting. The court held that “denying access to the franchise to those genuinely unable to pay solely on account of wealth” is not permissible. Myrna Perez, director of the Voting Rights and Elections program at the Brennan Center for Justice, called the decision “a great win for voting rights.”
• The U.S. District Court for the District of Maryland blocked a rule from the U.S. Department of Health and Human Services (HHS) that barred federally-funded clinics from discussing abortions with women. HHS claimed that women’s health would not be harmed and that medical professionals “are not prohibited in any way from providing medically necessary information to clients.” Judge Richard Bennett wrote that “HHS has inadequately explained its decision to ‘disagree’ with comments by every major medical organization regarding the Final Rule’s contravention of medical ethics.”
• Facebook published a white paper calling for “new regulatory frameworks for online content” and offering recommendations for governments seeking to curb abusive online content. Although it recognized increasing concern about online abuse, the white paper suggested that “some of the laws passed so far do not always strike the appropriate balance between speech and harm, unintentionally pushing platforms to err too much on the side of removing content.” European Commission Internal Market and Services Commissioner Thierry Breton pushed back, stating that “it’s not for us to adapt to this company, it’s for this company to adapt to us.”
• The U.K. government announced its plan to deny visas to low-skilled workers and those who cannot speak English. The proposal stated, “We need to shift the focus of our economy away from a reliance on cheap labor from Europe,” noting also that “employers will need to adjust.” First Minister of Scotland Nicola Sturgeon said, “It is impossible to overstate how devastating this U.K. policy will be for Scotland’s economy. Our demographics mean we need to keep attracting people here.”

WHAT WE’RE READING THIS WEEK

• In a research paper for Vanderbilt Law School, Professor Kip Viscusi and Scott Jeffrey of Vanderbilt Law School argued that municipalities could increase civil penalties to deter police shootings. Viscusi and Jeffrey noted that the compensation amount for wrongful deaths by police officers are well below the value that other government regulations outline for other wrongful deaths. The authors undertook a comprehensive benefit-cost analysis to calculate the cost of police shootings from 2015 to 2018, which the authors determined to be $39.3 billion.
• Policymakers must implement regulatory solutions to protect children from lead poisoning, argued the authors of a new article in the Yale Journal of Health Policy, Law, and Ethics. The authors noted that the President’s Task Force on Environmental Health Risks and Safety Risks to Children recently retreated from its prior goal to eliminate childhood lead poisoning, instead seeking merely to reduce it. Should agencies fail to re-engage with the original goal, they concluded, the nation will face both loss of life and increased governmental costs. Authors of the article are Emily Benfer of Columbia Law School, Emily Coffey and Kate Walz of the Shriver Center on Poverty Law, Allyson Gold of the University of Alabama School of Law, Mona Hanna-Attisha of the Michigan State University-Hurley Children’s Hospital Pediatric Public Health Initiative, Bruce Lanphear of Simon Fraser University, Helen Li, formerly of Connecticut Legal Services, Ruth Ann Norton of the Green & Healthy Homes Initiative, and David Rosner of the Columbia University Mailman School of Public Health.
• In a new article for CityLab, attorney Jesse Halfon of Dykema suggested that cities address safety concerns about electric scooter and bikesharing programs by creating new administrative bodies to address disputes. Because riders are frequently required to sign agreements shielding program operators from liability, Halfon argued, injured users are frequently left with no legal remedy. To address the problem, Halfon suggested that cities create “Mobility Claims Boards” empowered to evaluate injury claims and provide redress in appropriate cases.

FLASHBACK FRIDAY

• In a 2018 essay for The Regulatory Review, Jennifer Baxter of economic consulting firm Industrial Economics wrote that, in meeting the Trump Administration’s mandate to reduce regulation, agencies must quantify and mitigate uncertainty. The challenges of quantifying costs and benefits of deregulation are, Baxter argued, even greater than similar processes undertaken when regulations are created. Deregulating agencies may need to look beyond their walls to industry stakeholders willing to partner with agencies—and to commit research dollars—in evaluating the costs and risks of deregulation, Baxter concluded.