Week in Review

IN THE NEWS

• The U.S. Food and Drug Administration (FDA) issued full approval for the Pfizer COVID-19 vaccine for individuals ages 16 and older. The Pfizer COVID-19 vaccine had previously been granted emergency use authorization for individuals ages 12 and older. FDA continued the Pfizer vaccine’s emergency use authorization for individuals between 12 and 15 years old. Peter Marks, director of the Center for Biologics Evaluation and Research at FDA, stated that although FDA approved the vaccine “expeditiously,” the approval “was fully in keeping with FDA’s existing high standards for vaccines in the United States.”
• The U.S. Supreme Court declined to pause enforcement of a federal court decision requiring the Biden Administration to reinstate the Trump-era Migrant Protection Protocols Program, also known as the “Remain in Mexico” program. The program allows the U.S. Department of Homeland Security to deport individuals seeking entry to the United States from Mexico while their applications for asylum are evaluated. The Supreme Court reasoned that the federal government, which requested the Court to halt the reinstatement of the program, is unlikely to demonstrate that its rescission of the program “was not arbitrary and capricious” under the Administrative Procedure Act.
• In a vote along party lines, the U.S. House of Representatives approved the John R. Lewis Voting Rights Advancement Act, a bill aimed at protecting equal access to voting. The bill would require states with histories of racial discrimination to submit any proposed change to voting laws to the U.S. Department of Justice for approval. The Voting Rights Act of 1965 included a similar preclearance measure, but the Supreme Court invalidated the measure in Shelby County v. Holder. In Shelby County, however, Chief Justice John Roberts indicated that the U.S. Congress could create a different formula to determine which states would be subject to the preclearance requirement. The U.S. Senate must pass the bill before it can become law.
• A California Superior Court judge ruled that a California law designating gig workers as independent contractors was unconstitutional under the state’s constitution. The decision follows the 2020 passage of Proposition 22, which prevented gig workers from receiving the full benefits that would be granted to workers classified as employees. Companies can avoid providing certain benefits and protections, such as unemployment insurance, to workers classified as independent contractors under existing labor regulations. A spokesperson for the coalition of stakeholders who favor keeping the law in place reportedly stated that the coalition will file an appeal immediately.
• Texas Governor Greg Abbott issued an executive order prohibiting state governmental entities along with private entities that receive public funding from mandating COVID-19 vaccinations or requiring vaccine passports. The executive order modified Abbott’s previous order, which prohibited vaccine mandates and passports for vaccines that were issued under an emergency use authorization, rather than full FDA approval. The change in language comes after FDA approved the Pfizer vaccine earlier this week. Abbott, who tweeted that he is vaccinated, said that it was “important to avoid a patchwork of vaccine mandates” across the state.
• The U.S. Department of the Treasury announced several new policies designed to provide emergency rental assistance more quickly. The Emergency Rental Assistance Program provides financial assistance for rent or utility payments during the COVID-19 pandemic. The Treasury Department found that many of the program’s grantees, who distribute the funds through rental assistance programs, have not acted sufficiently quickly to provide assistance to eligible households. The new policies allow grantees to rely on a household applicant’s self-attested eligibility without requiring additional documentation––such as proof of income––to demonstrate that they meet the eligibility criteria. Other new policies involved working more closely with nonprofits, landlords, and utilities to speed up assistance.
• Japan suspended the use of 1.6 million doses of the Moderna COVID-19 vaccine, reportedly as a precautionary measure after Moderna’s Japanese distributor reported contaminants to the Japanese government. Spanish pharmaceutical company Rovi, which bottles Moderna vaccines outside of the United States, stated that the purported contaminants may have started in one of Rovi’s manufacturing lines and that it would “assist proactively with the investigation.” The European Medicines Agency stated that it was investigating whether the alleged contamination in Japanese products affects the European Union’s supply of Moderna vaccines.
• The Federal Trade Commission (FTC) announced a fee increase for telemarketers accessing phone numbers on the National Do Not Call Registry. Telemarketers are required to download numbers from the registry to avoid calling numbers that have been registered with the list. The FTC will increase the fee from $65 to $69 in 2022 for all phone numbers with a common area code. The FTC created the National Do Not Call Registry to prevent consumers from receiving unwanted sales calls.

WHAT WE’RE READING THIS WEEK

• In a recent working paper, Jessica R. Gunder, professor at the University of Idaho College of Law, argued that individuals at high risk for severe COVID-19 complications fall into the status of disabled under the American Disabilities Act (ADA). As a result, Gunder argued that state policies that delay these individuals’ access to vaccines could violate federal law. Gunder emphasized that states did not uniformly incorporate the Centers for Disease Control and Prevention’s (CDC) vaccine prioritization recommendations because the recommendations are not mandatory. Rather, Gunder contended that some states deprioritized individuals for vaccination due to the scarcity of the COVID-19 vaccine if those individuals have certain underlying health conditions, such as being overweight. Such measures constitute state discrimination that violates the ADA. Gunder proposed that states follow CDC vaccine distribution recommendations without altering them to prevent similar discrimination in the future.
• In a report for the American Economic Liberties Project, Reed Showalter, a fellow at the project, argued that an industry’s power to influence government is correlated with the degree of concentration in the industry. Showalter used several different industry case studies to demonstrate how concentration leads to increased lobbying expenditures. He concluded that antitrust enforcement should not be limited only to instances where consumer welfare may be harmed, but that antitrust should also be used to address “the political ramifications of economic concentration.”
• In a recent working paper, William A. Haseltine, president of ACCESS Health and trustee at The Brookings Institution, proposed a multi-layered strategy for COVID-19 mitigation. Haseltine argued that, although vaccines are important, they alone will not end the pandemic. Haseltine suggested that antiviral drugs should be funded and developed to combat the shortcomings of vaccines. In addition, Haseltine contrasted the U.S. approach to public health containment with countries that have managed the virus more effectively and argued that U.S. officials should ramp up testing and contract tracing efforts. Haseltine concluded that global collaboration would be key to containing and ending the COVID-19 pandemic.

FLASHBACK FRIDAY

• In an essay in The Regulatory Review, Daniel Tokaji, dean and professor at the University of Wisconsin Law School, argued that two decisions from the 2016 term of the Supreme Court—Bethune-Hill v. Virginia State Board of Elections and Cooper v. Harris—limited the ability of elected officials to use the Voting Rights Act to draw voting districts for partisan advantage. Tokaji predicted that states that set numerical racial targets to manipulate demographics in favor of the party in power when drawing voting districts would be “vulnerable to constitutional challenges” in the wake of the decisions. Tokaji concluded, however, that although the decisions were good for the Democratic Party at the time, the decisions could pose challenges for leaders of majority-minority districts, as they were elected in districts with numerical racial targets.