Week in Review

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Congress passes additional legislation to combat COVID-19, the D.C. Circuit hears oral arguments by phone, and more…

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IN THE NEWS

  • Out of concern for the effects of the COVID-19 pandemic on small businesses, U.S. Senator Elizabeth Warren (D-Mass.) and U.S. Representative Alexandria Ocasio-Cortez (D-N.Y.) will introduce the Pandemic Anti-Monopoly Act, which would freeze mergers and acquisitions involving corporations worth over $100 million. The proposal would also halt mergers with firms owned by hedge funds or private equity ventures and mergers that include patents on products related to the pandemic such as medical supplies. “As we fight to save livelihoods and lives during the coronavirus pandemic, giant corporations and private equity vultures are just waiting for a chance to gobble up struggling small businesses and increase their power through predatory mergers,” Warren reportedly expressed. Although progressive public officials have advocated limits on corporate power amid the health crisis, the bill is expected to face strong pushback from the Republican-controlled U.S. Senate and White House
  • President Donald J. Trump signed the Paycheck Protection Program and Health Care Enhancement Act into law to fund small business loans and testing during the COVID-19 pandemic. The Act allocates an additional $250 million toward the Paycheck Protection Program (PPP), a loan program intended to incentivize small businesses affected by the coronavirus crisis to keep workers on their payroll. U.S. House Speaker Nancy Pelosi (D-Calif.) lamented that the first round of PPP loans had been exhausted “almost immediately” and implied that the new legislation would help “ensure that even those underbanked, that the smallest businesses” would now have an opportunity to obtain a loan.
  • The Centers for Disease Control and Prevention together with the Occupational Safety and Health Administration released interim guidance for meat and poultry processing workers and employers amid the coronavirus crisis. Noting that factors endemic to the workplace environment such as close proximity to other workers and the use of shuttles and carpools “may contribute substantially to…potential exposures,” the interim guidance directs plants to identify a qualified workplace coordinator to helm internal COVID-19 assessment and control planning efforts. The guidance preceded President Donald J. Trump’s executive order authorizing the U.S. Department of Agriculture “to take all appropriate action…to ensure that meat and poultry processors continue operations.” The industry’s predominant union called on state and federal leaders to “enforce clear guidelines to ensure every employer lives up to the high safety standards these workers deserve and the American people expect.”
  • In a recent advisory statement, the U.S. Food and Drug Administration urged hand sanitizer manufacturers to discourage ingestion by adding denatured alcohol to their products, which would create a bitter, unappealing taste. As more Americans rely on hand sanitizer to protect against COVID-19, the National Poison Data System has reported a 79 percent increase in incidents of hand sanitizer consumption—the majority of which involved children under five years old. State and local health departments have also reportedly experienced increases in emergencies related to ingestion of disinfectant products following recent statements from President Donald J. Trump about the possibility  of injecting disinfectants into the body to treat COVID-19. The hygiene company Lysol has emphasized that disinfectant products are not intended for consumption and should only be used according to label and safety information.   
  • The U.S. Court of Appeals for the District of Columbia Circuit heard oral arguments by phone in a case implicating the question of whether Congress can sue the executive. The question stems from two lawsuits against the Trump Administration urging the court to intervene after the Administration allegedly appropriated funds without congressional approval and the President separately ordered White House counsel to defy a congressional subpoena. The U.S. Department of Justice reportedly characterized the appropriations matter as “the type of dispute that is committed to the political branches,” while counsel for the U.S. House Judiciary Committee argued that an unfavorable decision could “effectively eliminate Congressional oversight as we know it.”
  • Democrats in the U.S. Senate recently announced a bill that aims to establish an emergency federal medical supply chain and produce more essential medical equipment amid the COVID-19 pandemic. The legislation would address problems of shortages and competition among states for medical equipment by mandating the Secretary of Defense to appoint an “executive officer for critical medical equipment and supplies” who would supervise supply production and distribution, provide updated information on needed supplies, and manage purchase orders under the Defense Production Act. U.S. Senator Chris Murphy (D-Conn.) said of the legislation, “The current system, in which states and hospitals are competing against each other for scarce equipment is both unnecessary and barbaric. Enough is enough. It is time to centralize the critical medical supply chain and distribution during this public health crisis.”
  • The Centers for Disease Control and Prevention (CDC) recently updated its coronavirus guidelines to include pets, warning of the potential transmission of the virus from people to animals. The advisory comes after the World Organisation for Animal Health reported that some minks, dogs, and cats—including domestic tigers—have tested positive for COVID-19. The organization reports that cats appear to be the most susceptible species to contracting the virus according to laboratory findings. Although it remains unclear how the virus could impact animals differently than humans, the CDC recommends taking similar social distancing precautions with pets such as limiting public interaction with people or other animals, maintaining six feet distance when walking dogs, and avoiding contact with pets if the owner is sick, among other safety measures.
  • New York State Attorney General Letitia James renewed a challenge to the Trump Administration’s public charge rule in federal district court, days after the U.S. Supreme Court denied the state’s request for emergency relief. In support of its motion, the state asserted that the continued operation of the public charge rule is “gravely hindering” efforts to “stop the spread of COVID-19 and protect the health and well-being of our residents” by “deterring immigrants from accessing publicly funded health care.” The U.S. Citizenship and Immigration Services, which enforces the public charge rule, has advised anyone with COVID-19 symptoms—including aliens—to seek treatment and preventative services, asserting that accessing such care “will not negatively affect any alien as part of a future public charge analysis.”
  • In an 8-1 decision, the U.S. Supreme Court ruled that the federal government must pay back $12 million to health insurers for their participation in the former risk corridors program under the Patient Protection and Affordable Care Act. The risk corridors program was designed to mitigate the risk that insurance companies took on when participating in health care marketplace exchanges with a larger pool of consumers by establishing a federal fund for these insurers. Although the Court reasoned that its ruling reflects the longstanding principle that “the government should honor its obligations,” Justice Samuel Alito dissented, arguing that “billions of taxpayer dollars will be turned over to insurance companies that bet unsuccessfully on the success of the program in question.” 

WHAT WE’RE READING THIS WEEK

  • In a symposium on the future of the Office of Information and Regulatory Affairs (OIRA), a host of contributors debate the agency’s role in progressive governance. Rajesh Nayak and Todd Tucker argue that OIRA could be modernized to perform the role of an “industrial planning facilitator.” Among the changes would be the establishment of a regulatory planning office to identify under-regulated areas. On the other side of the debate, Kalen Pruss argues that “no amount of reform can rehabilitate an agency designed to subvert progressive goals.”
  • In a new policy analysis, Randal O’Toole reports significant declines in the use of urban transit, despite significant increases in spending and an apparent $100 million maintenance backlog for the industry. Asserting that most low-income workers are now forgoing public transit and that most urban transit “emits more greenhouse gases per passenger mile than the average automobile,” O’Toole advocates replacing subsidies with privatization. According to O’Toole, such a plan “would result in the concentration of transit services in dense cities and near job centers, where people use it the most, but the reduction or elimination of services in low-density suburbs, where relatively few people rely on transit.”
  • A review published in Frontiers in Marine Science outlines the economic potential and environmental danger of deep seabed mining. In the review, the University of Exeter’s Kathryn Miller and her coauthors explain that many minerals critical to modern life can be harvested from the seafloor using dredges attached to boats. However, Miller and her coauthors also note that seabed mining may pose significant risks to the environment, including direct death and habitat destruction to sea-floor dwelling organisms, sediment plumes, and methane releases. Finally, Miller and her coauthors argue that more research is required to understand potential risks before the International Seabed Authority finalizes proposed regulations permitting mining in the area of the ocean without national rights.

FLASHBACK FRIDAY

  • In a 2019 essay for The Regulatory Review, Allison Hoffman, professor of law at the University of Pennsylvania Law School, argues that to improve the U.S. health care system Americans’ values about health care must change. Hoffman explains that consumerist theories of health care have influenced health policy and are deeply ingrained in the market-centered focus of the U.S. health care system. This focus on market choice and competition, however, has failed to control spending and to help consumers make meaningful choices about their health insurance options, Hoffman demonstrates through her empirical research. Hoffman calls on policymakers to redirect their attention toward universal health care access—a policy that has gained increasing support among Americans.