Week in Review

IN THE NEWS

• The U.S. Congress passed the Families First Coronavirus Response Act, which allows employees to take paid sick leave, expands unemployment benefits, requires free testing for COVID-19, and provides additional nutritional assistance for students whose schools are closed. President Donald J. Trump signed the bill into law, as he had previously voiced his support. House Speaker Nancy Pelosi (D-Calif.), who introduced the bill along with other top House Democrats, promised that the law would protect “the health, economic security and well-being of the American people while stimulating the economy.”
• In response to COVID-19, President Trump advised all Americans to avoid gathering in groups of ten or more, to limit discretionary travel, and to abstain from visiting bars or restaurants. In addition, President Trump invoked the Defense Production Act, which will require private companies to accept and prioritize contracts from the government to maximize domestic medical supplies. During the same press briefing, Vice President Mike Pence urged everyone to abstain from visiting nursing homes, retirement homes, or long-term care facilities.
• In an action considered to be the most extreme since the 2008 financial crisis, the Federal Reserve Board lowered interest rates to zero to 0.25 percent in an attempt to stabilize the economy in the wake of COVID-19. The Federal Reserve also announced that it will purchase at least $700 million in government-backed securities over the coming months to help to keep rates low. In a statement to the press about the impact of COVID-19, Chair of the Board of Governors Jerome Powell said that “while the primary response to this challenge will come from our health care providers and policy experts, economic policymakers must do what we can to ease hardship caused by the disruptions to the economy and to support a swift return to normal once they have passed.”
• Some states and municipalities restricting business operations due to COVID-19 are classifying medical marijuana dispensaries as “essential” businesses like grocery and drug stores. Guidance from the New York State Department of Health, for example, states that marijuana dispensaries will be exempted from any business shutdown order, and relaxes regulations on marijuana delivery and patient pickup to accommodate social distancing. Michigan and Illinois have followed suit in relaxing delivery regulations. The Department of Public Health in San Francisco, where both medical and recreational marijuana use is legal, initially required dispensaries to close, but protests citing some users’ medical need for the drug prompted the agency to reverse its position.
• The U.S. District Court for the District of Columbia temporarily blocked a rule that would have placed new restrictions on the federal government’s food assistance program, known as SNAP. If enforced, the rule might have removed nearly 700,000 people from the program. “Especially now, as a global pandemic poses widespread health risks, guaranteeing that government officials at both the federal and state levels have flexibility to address the nutritional needs of residents and ensure their well-being through programs like SNAP, is essential,” Chief District Judge Beryl A. Howell wrote.
• The American Civil Liberties Union (ACLU) sued the U.S. Immigration and Customs Enforcement (ICE) seeking the release of detainees who have a high-risk of catching COVID-19 while in a detention center near Seattle. In the complaint, the ACLU wrote, “People who are confined in prisons, jails, and detention centers will find it virtually impossible to engage in the necessary social distancing and hygiene required to mitigate the risk of transmission.” In a statement, ICE said the agency would temporarily adjust its enforcement procedures and “exercise discretion to delay enforcement actions until after the crisis or utilize alternatives to detention.”
• The U.S. Department of Justice announced that it will no longer allow companies that violate environmental laws to reduce the cost of their penalties by funding environmental projects. In a memorandum posted on the agency’s website, Assistant Attorney General Jeffery Bossert Clark of the Justice Department’s Environment and Natural Resources Division wrote that ending the practice was necessary “both in light of their inconsistency with law and their departure from sound enforcement practices.” The practice may also contravene constitutional principles of separation of powers, Clark argued, since it permits administrative agencies, rather than Congress, to direct the use of government funds.
• The National Highway Traffic Safety Administration (NHTSA) issued a proposal to relax Federal Motor Vehicle Safety Standards for autonomous vehicles. Acting Administrator James Owens said the rule would remove requirements that autonomous vehicles include equipment designed to ensure the safety of human drivers, emphasizing that NHTSA does not “want regulations enacted long before the development of automated technologies to present an unintended and unnecessary barrier against innovation and improved highway safety.” But Jason Levine, executive director of the Center for Auto Safety, reportedly criticized the proposal, saying that in light of the current COVID-19 pandemic, agencies “should be focusing on existing safety measures which work to keep America moving forward when this crisis ends, not corporate giveaways desired by lobbyists and questioned by experts.”
• The U.S. District Court for the Eastern District of California dismissed a challenge by the Trump Administration to California’s cap-and-trade agreement with the Canadian province of Quebec. Rejecting the federal government’s claim that the agreement is a binding international treaty beyond the powers of the state to enact, U.S. District Judge William B. Shubb held that the agreement is non-binding since California is “free to withdraw at any time.” Litigation will continue on two additional claims.

WHAT WE’RE READING THIS WEEK

• Do local governments take action and allocate resources in ways that align with the preferences of their constituencies? In a new report for the Cato Institute, Victoria Perez, Justin Ross, and Kosali Simon of the Paul H. O’Neill School of Public and Environmental Affairs at Indiana University Bloomington sought to answer this question using data on voter support for the Affordable Care Act and publicly-funded health care. Perez and his coauthors found that, in areas with the strongest support for President Obama in 2012—a proxy for support of increased federal spending on health care—local governments failed to respond to this preference by spending less on local hospitals and allocating resources to alternative social programming, and instead increased local hospital funding.
• In a forthcoming article for the Cornell Law Review, Joshua D. Blank of the University of California, Irvine School of Law and Leigh Osofsky of the University of North Carolina School of Law argued that the automated advice tools increasingly used by administrative agencies to dispense legal guidance—such as “Emma,” the online chatbot developed by U.S. Citizenship and Immigration Services to provide immigration advice—may lead to “less precise advice, and potentially inaccurate legal positions.” To address these concerns, Blank and Osofsky recommended that agencies should introduce more robust oversight and review mechanisms and should allow individuals who rely on automated guidance to “avoid certain penalties and sanctions.”
• In an article published by the Vanderbilt Journal of Transnational Law, Professor Tsung-Ling Lee of Taipei Medical University argued that global leaders fail to prioritize funding for controlling infectious diseases because they perceive the threat to be low once a crisis is over. Lee posited that had an independent organization, such as the World Health Organization (WHO), stepped in earlier during the Ebola virus crisis, then more lives would have been saved. In addition, if the International Health Regulations were more robust and properly funded, then WHO would be empowered to achieve its constitutional mandate, Lee noted.

FLASHBACK FRIDAY

• In a 2018 essay for The Regulatory Review, Professor Alice Kaswan of the University of San Francisco School of Law argued for an environmental justice approach to the clean energy transition. In contrast to the mainstream environmental movement’s narrow focus on pollution reduction, Kaswan argued, the environmental justice movement’s holistic, place-based approach foregrounds the impact of environmental policy on the quality of life and economic opportunity of vulnerable communities. Moreover, to be effective, Kaswan suggested that proponents of the environmental justice movement forge political alliances not just with currently vulnerable groups but also with working people likely to be displaced by the clean energy transition, such as fossil fuel workers.