The Regulatory Review highlights the top regulatory news and scholarship of 2020, as selected by our staff.
In lieu of our regular Friday feature—the Week in Review—The Regulatory Review is recapping some of the top regulatory news from the past year, including the coronavirus pandemic, the 2020 presidential election, and more. We are also pleased to highlight some of the regulatory scholarship featured this year in the Week in Review.
- The World Health Organization (WHO) declared the outbreak of the coronavirus from Wuhan Province in China a Public Health Emergency of International Concern. WHO’s declaration triggered a coordinated response from 196 countries working to detect and report events related to the coronavirus. This is only the fifth international public health emergency WHO has declared, with past emergencies including H1N1, polio, Ebola, and the Zika virus.
- The European Parliament voted 621-49 to ratify the Brexit agreement governing Britain’s withdrawal from the European Union. After the vote, European Parliament President David Sassoli stated that “we will all have to work hard to build a new relationship,” noting that this effort “will not be simple.” The agreement went into effect on January 31, 2020.
- After Alex Azar, secretary of the U.S. Department of Health and Human Services, declared a public health emergency for the coronavirus outbreak, President Donald J. Trump appointed Vice President Mike Pence to head the federal government’s response to the coronavirus pandemic. President Trump reportedly stated that “the risk to the American people remains very low,” because of federal efforts to prevent non-citizens from coming into the United States from China, screen people from infected areas, and quarantine those who show symptoms.
- The U.S. Supreme Court lifted the final stay on the Trump Administration’s public charge rule, making the rule enforceable nationwide. The rule allows government officials to deny permanent legal status to immigrants deemed likely to require future public assistance. The final stay was in response to a lawsuit brought by Cook County, Illinois. The county’s state’s attorney Kimberly Foxx responded to the Court’s decision by stating that her office “is unwavering in our commitment to oppose discrimination and stand up for immigrant families in Cook County.”
- 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 U.S. Supreme Court allowed the Trump Administration to continue enforcing its so-called Remain in Mexico policy, overturning a federal court order issued the previous week that had temporarily blocked the policy. Under the policy, non-Mexican asylum applicants who enter the United States at the nation’s southern border must wait in Mexico while their applications are processed. The Supreme Court’s brief order noted that Justice Sonia Sotomayor would have allowed the order blocking the policy to remain in place.
- The Trump Administration finalized an interagency rule cutting back Obama-era standards for fuel economy and vehicle emissions. The new rule will require automakers to increase the stringency of vehicle emissions in new models at a significantly lower rate than what was previously required. U.S. Environmental Protection Agency (EPA) Administrator Andrew Wheeler defended the move by stating that the “final rule puts in place a sensible one national program that strikes the right regulatory balance that protects our environment, and sets reasonable targets for the auto industry.” A former senior engineer and policy adviser at EPA said that the rule “will be an environmental and economic disaster.”
- The Centers for Medicare and Medicaid Services (CMS) issued temporary waivers that allow health systems to deliver care and services to uninfected patients at locations other than main hospital facilities, such as hotels and dormitories—an effort the federal agency calls “Hospitals Without Walls.” The waivers also seek to expand the health care workforce by permitting hospitals to hire local health professionals who are not fully credentialed to address the increased volume of patients. CMS Administrator Seema Verma called the relaxation of current health care delivery requirements an “unprecedented” effort to allow frontline providers to “focus on patient care in the most flexible and innovative ways possible.”
- Two weeks after President Donald J. Trump’s executive order invoking the Defense Production Act to ensure that meat and poultry processors continued operations, counties with major beef or pork slaughterhouses reportedly experienced a 40 percent rise in confirmed COVID-19 cases in the week following their reopening—double the national average increase in cases. Isolated communities apparently showed an even greater surge in cases, indicating a risk of creating new hot spots if the plants remain open.
- In an official certification to the U.S. Congress, the U.S. Department of State declared that Hong Kong is no longer regarded as autonomous from China. Under the Hong Kong Policy Act, Secretary of State Mike Pompeo is required to certify to Congress on an annual basis whether Hong Kong continues to maintain economic and civil liberties sufficient to justify its autonomous status. The revocation of Hong Kong’s autonomous status enables the United States to end the special trade relationship with the territory and impose tariffs from which Hong Kong had been previously exempt. In his statement, Pompeo expressed that “while the United States once hoped that free and prosperous Hong Kong would provide a model for authoritarian China, it is now clear that China is modeling Hong Kong after itself.”
- The American Civil Liberties Union of Southern California filed an emergency lawsuit on behalf of Black Lives Matter Los Angeles and several individuals to challenge the nightly curfews imposed by Los Angeles city and county. In a statement, the American Civil Liberties Union of Southern California stated that the curfews violated the U.S. Constitution by suppressing political protests and movement in the evening hours. Melina Abdullah, co-founder of Black Lives Matter Los Angeles, reportedly stated that the curfews “suppress our ability to mobilize fully and focus full attention on the true issue of concern in the protests—police violence against Black people.” The lawsuit was filed two days after President Donald J. Trump addressed the nation in response to the death of George Floyd, warning that “those who threaten innocent life and property will be arrested, detained, and prosecuted to the fullest extent of the law.”
- In a 6-3 decision, the U.S. Supreme Court determined that employers who discriminate against employees for being gay, lesbian, or transgender violate the 1964 Civil Rights Act. The Court held that the federal law’s prohibition of employment discrimination based on sex includes a ban on discrimination based on sexual orientation or gender identity. In the majority opinion, Justice Neil Gorsuch wrote that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” In the dissenting opinion, Justice Samuel Alito argued that the common understanding of sex discrimination in 1964 was bias against women or men rather than bias based on sexual orientation or gender identity. Prior to this decision, it was legal in more than half of the nation’s 50 states for an employer to fire an employee for being gay, lesbian, or transgender.
- In a 5-4 unsigned opinion, the U.S. Supreme Court held that the federal government can execute people on death row using a single lethal injection. In its decision, the Court overturned a federal district court’s suspension on federal executions. Three liberal justices dissented, and Justice Stephen Breyer separately dissented, questioning the constitutionality of the death penalty by any method. Soon after the Court reversed the district court injunction, the federal government executed an incarcerated person for the first time since 2003, going on to execute ten people this year.
- In a 7-2 decision, the U.S. Supreme Court upheld a rule that allows employers to deny contraceptive coverage under the Patient Protection and Affordable Care Act based on employers’ religious or moral beliefs. The Court’s decision validated the Trump Administration’s expanded exemption for employers from the requirement that employers provide contraceptive coverage to employees under their insurance plans. In her dissent, Justice Ruth Bader Ginsburg wrote that “for the first time, the Court casts totally aside countervailing rights and interests in its zeal to secure religious rights to the nth degree.”
- U.S. Environmental Protection Agency (EPA) Administrator Andrew Wheeler announced two final rules for the oil and gas industry that roll back Obama-era methane emissions standards and eliminate federal requirements that oil and gas companies install technology to detect and fix methane leaks. David Doniger, senior strategic director of the Natural Resources Defense Council, said that EPA has given industry stakeholders “a green light to keep leaking enormous amounts of climate pollution into the air.”
- The U.S. Department of the Interior announced that oil and gas companies may lease portions of approximately 1.5 million acres of Alaska’s Arctic National Wildlife Refuge for drilling beginning on January 6, 2021. Conservation activists, tribal groups, and 15 states have already filed lawsuits seeking to invalidate the sale, and the incoming Biden Administration could still prevent drilling. Adam Kolton, executive director of the Alaska Wilderness League, strongly rebuked the planned sale, likening the move to President Trump’s “own Teapot Dome scandal.”
- A federal court ruled that the U.S. Census Bureau cannot halt door to door collection of household data a month before the original end date. Kristen Clarke, president and executive director of the Lawyers’ Committee for Civil Rights Under Law, reportedly called the 2020 U.S. Census “one of the most important civil rights issues of the day,” and committed to ensuring the Trump Administration’s accountability for “its repeated attempts to omit people of color, immigrants, and other vulnerable populations from the 2020 Census.”
- The Centers for Disease Control and Prevention issued an order to slow the spread of COVID-19 by prohibiting residential housing evictions until December 2020. Housing advocates have expressed support for the order—which they say will prevent homelessness during the pandemic—but they raise concerns about the flood of evictions that could follow after the temporary prohibition expires.
- The U.S. Food and Drug Administration (FDA) approved the antiviral drug remdesivir for the treatment of COVID-19, making it the first FDA-approved treatment of its kind since the coronavirus outbreak in the United States. In a statement, FDA Commissioner Stephen Hahn emphasized that FDA’s approval is “supported by data from multiple clinical trials that the agency has rigorously assessed,” noting that the approval “represents an important scientific milestone in the COVID-19 pandemic.”
- In a 52-48 vote, the U.S. Senate confirmed Justice Amy Coney Barrett to the U.S. Supreme Court, following a swift nomination and hearing process. Senators voted along party lines, with the exception of Senator Susan Collins (R-Maine) who voted against Barrett’s confirmation. Senate Minority Leader Chuck Schumer (D-N.Y.) claimed that the Republican Senate majority is “doing the exact opposite of what it promised four years ago” when it refused to hold hearings for President Barack Obama’s Supreme Court nominee, Judge Merrick Garland, about 80 days prior to the 2016 presidential election.
- Former Vice President Joe Biden was elected to become the 46th President of the United States, beating incumbent President Donald J. Trump after winning 290 electoral college votes. United States Senator Kamala Harris (D-Calif.) will become the first Black, Asian, and woman Vice President of the United States, marking a historic win. President Trump, however, refused to concede victory to President-Elect Biden, challenging the election results in a series of unsuccessful lawsuits over the weeks following the election.
- Voters in New Jersey, Arizona, Montana, and South Dakota approved state plans to legalize and tax recreational marijuana use for adults, while voters in Mississippi approved plans for a medical marijuana program through the state’s Department of Health. In New Jersey, the approved plan requires New Jersey Governor Phil Murphy to provide oversight of the industry through the Cannabis Regulatory Commission, which currently manages New Jersey’s medical marijuana program. In Oregon, voters approved a plan to decriminalize—but not legalize—all drugs, including cocaine and heroin.
- The U.S. Food and Drug Administration issued emergency use authorizations for two COVID-19 vaccines developed by Pfizer-Biontech and Moderna. Following federal health officials’ recommendations, state and local governments will first distribute the vaccines to hospitals and long-term care facilities, whose health care workers and residents will be the first in the country to receive the vaccines before they become available to the wider public.
- The Federal Trade Commission filed a lawsuit against Facebook alleging that the social media company illegally created a monopoly through unfair anti-competition practices. The agency accused Facebook of illegally acquiring two competitors, Instagram and WhatsApp, and “suppressing, neutralizing, and deterring serious competitive threats.” Forty-eight state attorneys general filed a separate lawsuit alleging similar violations.
WHAT WE WERE READING THIS YEAR
- In a working paper, Chris Brummer, professor at Georgetown University Law Center, reported a glaring lack of African Americans in senior leadership roles at federal financial agencies. Brummer emphasized that both political parties have unilaterally failed to hire and nominate African Americans to these positions. Brummer considered several theories that might partially explain this failure but emphasized the need for more robust qualitative evidence to understand the problem fully.
- In a paper for the Journal of the American Medical Association, Lawrence O. Gostin, a professor at Georgetown University Law Center, and Lindsay F. Wiley, director of the Health Law and Policy Program at the American University Washington College of Law, examined the scope of state governments’ public health powers during the coronavirus pandemic. Gostin and Wiley found that states and localities have the authority to close businesses, limit public gatherings, and issue curfews to protect public health if the restrictions do not target a specific group. Gostin and Wiley argued that the power to issue long-term, compulsory stay-at-home orders has not yet been assessed by the courts, but the legality of these actions will likely depend on whether the restrictions imposed are proportional to the public health threat.
- In a paper for the Washington University Law Review, Kathryn Kovacs, professor at Rutgers Law School, argued that the President should be required to adhere to specific provisions of the Administrative Procedure Act (APA) such as public notice and comment and the requirement to provide policy justifications that courts review. Kovacs critiqued the U.S. Supreme Court’s 1992 decision in Franklin v. Massachusetts—in which the Court held that the President was not subject to APA requirements—for ignoring parts of the statute and legislative history indicating that the U.S. Congress intended that some presidential actions be covered under the APA. Based on this theory, Kovacs speculated that President Trump’s order barring immigration from certain Muslim-majority countries would have violated the APA.
- In a new report for the Center for American Progress, Andres Vinelli, Christian E. Weller, and Divya Vijay evaluated the domestic economic impact of COVID-19. Vinelli, Weller, and Vijay emphasized the limited utility of using economic consequences of the 2003 SARS outbreak as a model for 2020, noting the anticipated impact of coronavirus on supply chains and financial markets. Although they applauded the Federal Reserve Board for lowering interest rates, Vinelli, Weller, and Vijay concluded that Congress and the Trump Administration must implement economic stimulus policies to ease impacts on business and vulnerable groups.
- Professors Cary Coglianese of the University of Pennsylvania Law School and Shana Starobin of Bowdoin College used social science frameworks—including those from political science, economics, psychology, and sociology—to identify how human behavior created today’s environmental problems. Some of the major problems, according to Coglianese and Starobin, include power asymmetries, externalities, and the tragedy of the commons. Coglianese and Starobin noted that recognizing the behavioral patterns that caused these problems is critical to finding their solutions.
- Shi-Ling Hsu, professor of law at the Florida State University, argued in an unpublished essay that the Trump Administration is fostering an anti-science attitude in the U.S. public consciousness. Hsu acknowledged that areas of science that relate to regulation have always been at risk of losing legitimacy due to political influence. He argued, however, that the Trump Administration is unique in its practice of attacking areas of science that have nothing to do with regulation, such as when President Donald J. Trump criticized Anthony Fauci, director of the National Institute of Allergy and Infectious Diseases, for contradicting the President’s assessment of a vaccine production timeline. Hsu concluded that this phenomenon represents an attempt to “use science as part of a political culture war, reviving a populist suspicion of intellectuals that has a long and cyclical history in American culture.”