Week in Review

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Court invalidates Labor Department’s interpretation of the coronavirus legislation, President Trump orders government agencies to prioritize hiring U.S. citizens, and more…

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IN THE NEWS

  • A federal court invalidated several features of a U.S. Department of Labor final rule that restricted eligibility for paid sick and family leave during the coronavirus pandemic. The court held that the Labor Department exceeded its authority under the Families First Coronavirus Response Act when it implemented a work availability requirement that made workers ineligible for benefits if their employers had no work to give to them. The court also nullified conflicting documentation requirements and employer consent requirements for intermittent leave requests. New York Attorney General Letitia James called the ruling an “important win” to ensure access to critical benefits for workers during the coronavirus pandemic.
  • President Donald J. Trump signed an executive order directing federal agencies to prioritize American workers over foreign workers in their hiring practices. The executive order directed the U.S. Department of Labor and U.S. Department of Homeland Security to take action to protect American workers from the “adverse effects on wages and working conditions caused by the employment of H-1B visa holders.” President Trump issued the executive order shortly after the Tennessee Valley Authority, a federally owned corporation providing utility services, reportedly announced its plan to lay off over 60 American federal information technology employees in favor of a foreign outsourcing plan.
  • Iowa Governor Kim Reynolds signed an executive order restoring voting rights to formerly incarcerated people who have completed their felony sentences. Iowa was the only state with a lifetime ban on voting for people convicted of a felony. Governor Reynolds signed the executive after the Republican-controlled Iowa Senate declined to vote on a constitutional amendment to restore voting rights to people who have been convicted of felonies. Restoration of voting rights is one of Governor Reynolds’s top priorities, but the legislature has refused to pass the amendment in the past two sessions. Reynolds acknowledged that the executive order is “at best, a temporary solution” that “can be changed at the drop of a pin by the next governor,” as governors before her have done. Reynolds is committed to making the change permanent, and reiterated her commitment to pressing the state legislature to pass an amendment to the Iowa constitution.
  • The Federal Aviation Administration signaled its preliminary approval of Boeing’s proposed changes to the 737 MAX airplane, including new safety requirements designed to prevent crashes like those that occurred in October 2018 and March 2019. In a notice of proposed rulemaking, the agency indicated that Boeing would be required to implement new safeguards, including updated flight control and display system software and a full revision of the existing airplane flight manual. Michael Stumo, whose daughter died in the flight crash of March 2019, reportedly expressed skepticism that the proposed changes would be enough, commenting that “obviously there is economic pressure to get the plane up in the air. Safety isn’t first.”
  • President Donald J. Trump issued an executive order intended to improve health care access in rural communities by increasing access to telehealth services. The order directed the U.S. Department of Health and Human Services to review temporary measures put in place during the coronavirus pandemic, such as waiving regulatory barriers to virtual doctor appointments, and then to propose permanent regulation to extend these measures beyond the public health emergency. Seema Verma, Centers for Medicare and Medicaid Services administrator, applauded the executive order and stressed the importance of telehealth in improving access to quality health care.
  • SpaceX Services requested authorization from the Federal Communications Commission to quintuple the number of user terminals that will provide high-speed internet through Starlink, the company’s forthcoming satellite internet service. SpaceX received a license from the agency in March to deploy up to one million user terminals, but after receiving nearly 700,000 requests to sign up for Starlink before the service was even formally announced, SpaceX filed a request to increase the license to five million user terminals. The request from SpaceX came a day after the Federal Communications Commission authorized Amazon to launch over three thousand internet-providing satellites as part of its Project Kuiper, a direct competitor to SpaceX’s Starlink service.
  • Democrats in the U.S. House of Representatives introduced the Federal Reserve Racial and Economic Equity Act, a bill which would require the Federal Reserve to include the reduction of racial economic inequality within its mission. This would be the first significant change to the Federal Reserve’s mandate since 1977. The Act would require the Board of Governors of the Federal Reserve System and the Federal Open Market Committee to report “plans, activities, and actions…to minimize and eliminate racial disparities in employment, wages, wealth, and access to affordable credit” to the Senate Committee on Banking. Chair of the Federal Reserve Jerome H. Powell has said that the Federal Reserve lacked the tools to address “distributional disparate outcomes.” The Federal Reserve has faced increased pressure to address inequality, with calls from Democratic presidential nominee, former Vice President Joe Biden, and economists to address the gap between white and Black unemployment.
  • Hong Kong Chief Executive Carrie Lam announced that Hong Kong’s upcoming legislative elections will be postponed by one year due to rising coronavirus cases in the region. Under Hong Kong’s Legislative Council Ordinance, Lam may exercise her authority as Chief Executive to delay an election when there is “any danger to public health or safety.” Joshua Wong, a prominent pro-democracy activist in Hong Kong, tweeted that “the election is de facto called off, not postponed” and that Lam’s announcement presaged a move by Beijing to appoint a new government composed of legislators loyal to the mainland.
  • The Health Officer for Montgomery County, Maryland, Travis Gayles, directed private schools to suspend in-person instruction until October 1, 2020. The order came a week after Gayles mandated that private and parochial schools begin classes online in the fall, a move that received criticism from parents, some of whom filed a lawsuit. In response to Gayles’s initial order, Maryland Governor Larry Hogan issued an emergency amended executive order that leaves reopening decisions to schools rather than local health departments. Following the governor’s executive order, Gayles rescinded his original directive and replaced it with the new guidelines, citing as authority state code provisions that empower local health officers to “take any action or measure necessary to prevent the spread of communicable disease.”

WHAT WE’RE READING THIS WEEK

  • In a report for the Institute for Justice, Jennifer McDonald revealed that the U.S. Department of Homeland Security and U.S. Customs and Border Patrol seized over $2 billion from airport travelers from 2000-2016. McDonald analyzed a previously restricted database maintained by the U.S. Department of the Treasury that documented federal civil forfeitures. She found that over two-thirds of these forfeitures did not result in formal arrests, suggesting that the majority of travelers who were subjected to civil seizures failed to report their assets and were not found culpable of any of the underlying crimes that the forfeiture system is designed to deter. As the first researcher to scrutinize the scope of federal airport forfeitures, McDonald called on Congress to reform the civil forfeiture system to protect innocent airport travelers from arbitrary seizures.
  • In a blog post for the Urban Institute, Mary Cunningham, Abby Boshart, and Ananya Hariharan, researchers at the Metropolitan Housing and Communities Policy Center, shared recommendations to prevent a spike in evictions from the economic effects of the COVID-19 pandemic. Cunningham and her coauthors proposed four key strategies to prevent eviction of American renters: (1) extend unemployment benefits for at least six more months; (2) create a rental assistance fund; (3) pass a national eviction moratorium; and (4) fund legal assistance and ensure legal counsel for eviction proceedings. Without these steps, Cunningham and her coauthors cautioned that the country may face a crisis similar to the Great Depression, when the lack of federal response to an economic crisis contributed to an unprecedented surge in homelessness.
  • In a report for the Brookings Institution, research analyst at the Metropolitan Policy Program, Hanna Love, and several co-authors argued that for marginalized communities to recover from the COVID-19 crisis, economic rehabilitation must include addressing the systemic causes of historic disinvestment and empowering local community investment. Love and her co-authors offered policy suggestions such as using location-based approaches, building on and investing in pre-existing community assets, working across multiple levels of governance, addressing problems holistically, and identifying accountability structures to commit to long-term change.

FLASHBACK FRIDAY

  • In a 2019 essay in The Regulatory Review, Sarah Paoletti, professor at the University of Pennsylvania Law School, analyzed the Supreme Court’s ruling in Department of Commerce v. New York, which sent back to the lower court the Secretary of Commerce’s proposed citizenship question on the 2020 census. As Paoletti explained, the census question was criticized as being politically motivated and an attempt to “negatively impact the response rate and lead to population undercounts, particularly in already marginalized communities and communities of color,” in violation of the Enumeration Clause of the U.S. Constitution, the Census Act, and the Administrative Procedure Act (APA). Although the Supreme Court dismissed the claims under the Enumeration Clause and Census Act, it narrowly held that the Administrative Procedure Act required a better reasoned explanation for such a question. Paoletti suggested that this decision held “open the door for extraordinary deference to the executive branch” and was especially pressing given that the Trump Administration “pushed the limits of the APA” as it overhauled the immigration system.