The Regulatory Review highlights the top regulatory news and scholarship of 2021, 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 major U.S. Supreme Court rulings, congressional bills, agency actions, and more. We are also pleased to highlight some of the regulatory scholarship featured this year in the Week in Review.
- Supreme Court Justice Stephen Breyer announced that he will retire in October, at the end of the current Supreme Court term. President Joseph R. Biden has pledged to nominate a Black woman to the Court to fill the vacancy and intends to do so by the end of February. Justice Breyer’s retirement announcement provides relief to the Democratic Party, which feared that a delay in Justice Breyer’s retirement and a loss of its majority in the U.S. Congress could preclude its ability to confirm a liberal successor to the Court.
- The Supreme Court agreed to hear challenges to policies considering race in college admissions—often referred to as affirmative action. The challenges arose out of one lawsuit filed against Harvard University and one against the University of North Carolina at Chapel Hill by a group called Students for Fair Admissions. The Supreme Court previously upheld the University of Texas at Austin’s use of race in its admissions process in 2016 by a vote of four to three following the death of Justice Antonin Scalia and the recusal of Justice Elena Kagan. Legal scholars posit that the changed composition of the court since 2016 means that the court could now rule differently on the constitutionality of the use of race as a factor in admissions processes.
- The Supreme Court restored congressional maps in Alabama after a district court ordered the state to redraw them before holding primary elections in March. The district court had concluded that the maps likely violated the Voting Rights Act by suppressing Black votes. In a dissenting opinion, Justice Kagan wrote that the majority decision “forces Black Alabamians to suffer” under “clear vote dilution.”
- The Supreme Court agreed to hear arguments in a lawsuit that challenges a Colorado law that protects against discrimination based on sexual orientation. The petitioner, a wedding website designer seeking to refuse services to same-sex couples, alleged that the law violates her First Amendment right to freedom of speech. Law professor at Columbia Law School, Jamal Greene, wrote that the legal question the Court presented—whether the Colorado anti-discrimination law impermissibly forces the web designer “to speak or stay silent”—is “too broad.” Greene argued that this question misrepresents the case because it encourages the public to choose sides in “a broader culture war rather than focusing on its particular facts and the specific claims each side is making.”
- President Biden nominated Judge Ketanji Brown Jackson as a Justice of the Supreme Court to replace the retiring Justice Stephen Breyer. Judge Jackson’s confirmation hearing will reportedly begin on March 21. In his State of the Union address, President Biden praised Judge Jackson as one of the “top legal minds” and a “consensus builder.” If confirmed, Judge Jackson will serve as the first Black woman and former public defender on the Supreme Court. Law professor at the University of Wisconsin-Madison Law School, Steph Tai, praised Judge Jackson for sticking “to the requirements of the Administrative Procedure Act,” which Tai noted “allows a lot of deference to agencies.”
- A Texas judge continued to block Texas Governor Greg Abbott’s order that empowered the Texas Department of Family and Protective Services to investigate parents who allow gender-affirming care for their transgender children for child abuse. Texas appealed the court’s initial invalidation of the order, but the court again determined that the order was likely unconstitutional. The court will hear this case on July 11 to issue a final judgment on the order. Texas Attorney General Ken Paxton tweeted that despite the court’s ruling, he had appealed the case and investigations of families could proceed. Executive director of Equality Texas, Ricardo Martinez, responded that Texas could not legally continue investigations, and families still under investigation should “reach out to ACLU and Lambda Legal’s help desk immediately.”
- The U.S. Department of Justice issued a final rule modernizing its definition of a firearm to include “parts kits that are readily convertible to firearms,” otherwise known as ghost guns. The rule would subject ghost guns to the same regulations as any other firearm. This new rule requires manufacturers to add serial numbers, retailers to comply with tracing and record requirements, and potential purchasers to undergo background checks. The Justice Department expects this rule to mitigate the proliferation of unmarked firearms and aid law enforcement in relevant criminal investigations.
- European Union countries agreed to legislation that will require digital platforms to take greater action to remove illegal content and disinformation from their platforms. The new European Digital Services Act contains a number of provisions that apply to tech companies, including banning certain types of targeted advertising, creating an appeals process for illegal content removal, and requiring large platforms such as Facebook to disclose the algorithms they use to recommend content to users. The law will “ensure that platforms are held accountable for the risks their services can pose to society and citizens” according to European Commissioner for Content Margrethe Vestager.
- The Supreme Court held that the city of Boston’s refusal to fly a religious group’s flag outside its city hall violated the group’s freedom of speech. Boston had denied the request to fly the flag to avoid violating the Establishment Clause of the First Amendment, which prohibits the government from promoting any particular religion. City officials worried that flying the flag implicated Establishment Clause concerns because the flag “promoted a specific religion.” But the Court found that raising the flag did not constitute government speech. Rather, the Court held that Boston had denied the religious group’s speech, which amounted to discrimination.
- An Alabama law that bans gender-affirming care for individuals under 19 years old took effect on May 8, 2022. Parents of transgender minors challenged the constitutionality of the law and asked the court to block its enforcement, but the court has yet to issue a ruling, allowing the law to go into effect. The Alabama law criminalizes providing gender-affirming care, including the prescription of hormones and puberty blockers, as a felony punishable by up to 10 years in prison. The law also prohibits public school employees and staff from withholding information about a minor’s gender identity from their family with the same penalty.
- The Supreme Court, in a 6-3 decision, overturned Roe v. Wade, the landmark 1973 decision recognizing a constitutional right to abortion before fetal viability. The Court upheld a Mississippi law that bans abortion after 15 weeks of pregnancy and restored states’ ability to ban abortions. The majority stated that its decision would not affect other constitutional rights that do not concern abortion. Justice Clarence Thomas, however, argued in his concurrence that the Court should reconsider longstanding substantive due process rulings, including Griswold v. Connecticut, which established the right for married couples to obtain contraception, and Obergefell v. Hodges, which protects the right to same-sex marriage. Although about half of the states have already banned abortions or have laws in place that could quickly ban or severely restrict abortions in the future, other states are expanding protections. California Governor Gavin Newsom, for example, signed a bill protecting abortion recipients and providers in California from lawsuits from other states that outlaw abortion or that may make it illegal for a person to travel to California to receive an abortion.
- The Supreme Court, in another 6-3 decision, ruled that the U.S. Environmental Protection Agency (EPA) does not have the power—absent an express authorization from Congress—to set emissions caps for power plants in a way that would drastically alter the U.S. energy system. The Court held that Congress, in the Clean Air Act, did not grant EPA the authority to make “decisions of vast economic and political significance” in regulating carbon emissions. In this ruling based on the major questions doctrine, the Court concluded that EPA needed to have “clear congressional authorization” to make such regulations. The Court’s ruling significantly narrows EPA’s climate-related regulatory power and restricts the Biden Administration’s ability to mitigate the effects of climate change. Justice Kagan, in her dissent, stated that the Court’s majority, with its decision,“appoints itself—instead of Congress or the expert agency—the decision-maker on climate policy.”
- The U.S. Department of Health and Human Services (HHS) issued a proposed rule that would implement a section of the Affordable Care Act that prohibits discrimination against LGBTQ+ individuals. The proposed rule would affirm the Act’s enforcement against gender identity and sexual orientation-based discrimination and would expand enforcement to include outpatient care under Medicare Part B. The Trump Administration issued the governing rule interpreting the Act, which limits its scope to exclude LGBTQ+ protections. HHS announced that the proposed rule would align the Act’s protections with the Supreme Court’s 2020 decision in Bostock v. Clayton County, which held that discrimination on the basis of sex includes gender identity and sexual orientation-based discrimination.
- President Biden issued an executive order designed to protect access to reproductive healthcare services. The order directed HHS to ensure access to medication abortion, contraception, and emergency medical care through promoting awareness of patients’ rights and information about federally funded reproductive healthcare providers. The order also instructed other agencies to coordinate with HHS to protect patients’ private medical information, convene volunteer lawyers, and promote safety and security for patients, providers, and clinics. In announcing the order, President Biden said that protecting and defending reproductive rights is “essential to justice, equality, and our health, safety, and progress as a nation.”
- President Biden signed into law the Inflation Reduction Act of 2022. The law contains provisions allowing Medicare to negotiate prescription drug prices, creating tax credits for buyers of electric motor vehicles, and imposing a minimum 15 percent tax on some of the most profitable large corporations. The Biden Administration has since released a series of fact sheets detailing the new law’s expected benefits for rural, Black, and Latino communities as well as the ways the law will address climate change. During his signing ceremony, President Biden declared that “with this law, the American people won and the special interests lost.”
- President Biden announced a relief package for over 60 million student loan borrowers. The package cancels up to $10,000 in student debt for borrowers making less than $125,000 and up to $20,000 in relief for Pell Grant recipients. President Biden also directed the U.S. Department of Education to extend the pause of federal loan repayment “one final time” through year’s end as well as to cap monthly payments toward undergraduate loans at 5 percent of a borrower’s monthly income and issue rules to amend the Public Service Loan Forgiveness program. Economists at the Committee for a Responsible Federal Budget argued that the action undermines the national debt-reduction and deflationary effects of the Inflation Reduction Act, while the Student Borrower Protection Center highlighted that the move helps close the racial and gender wealth gaps.
- President Biden approved an emergency declaration for Puerto Rico in the wake of Hurricane Fiona. The declaration authorized the Federal Emergency Management Agency to provide resources, such as federal funding, medical care, and safety inspections, to the government of Puerto Rico as it responds to the flooding and power outages. Governor of Puerto Rico Pedro R. Pierluisi said the emergency declaration would allow his administration “to effectively respond to damages caused by the storm.”
- The U.S. House of Representatives passed a bill that would make it more challenging for members of Congress or the Vice President to overturn presidential election results. The bill would amend the Electoral Count Act by requiring one-third of both the House and the U.S. Senate to sign on to objections to election results certification. The bill also clarified that the Vice President, as presiding officer, would not have the power to obstruct or delay the counting of electoral votes. Earlier this year, however, a bipartisan group of U.S. Senators began working on a narrower legislative proposal to amend the Electoral Count Act. Senator Susan Collins (R-Maine) announced this week that 10 Republican and 10 Democrat senators are co-sponsoring the Senate proposal.
- The U.S. Court of Appeals for the Fifth Circuit held that the funding structure of the Consumer Financial Protection Bureau (CFPB) is unconstitutional. Under the current funding mechanism, the CFPB receives its funding through the Federal Reserve, not through a congressional provision of budget authority to the agency. The court stated that Congress shirked its duty to provide agency budgets in violation of the separation of powers by approving this arrangement. Legal experts predict the CFPB will ask for a stay in the proceedings while it seeks an appeal to the entire Fifth Circuit and, if necessary, the U.S. Supreme Court.
- President Biden signed the Federal Trade Commission Collaboration Act of 2021 into law. The Act requires the Federal Trade Commission (FTC) to study and report on existing efforts “to prevent, publicize, and penalize frauds and scams” perpetrated on individuals in the United States. Under the Act, the FTC must consult with various groups—including state Attorneys General, public interest groups, and private sector entities—and provide opportunities for public comment. The Act mandates that the FTC submit its completed report to Congress along with recommendations on how to enhance widespread, collaborative efforts to combat fraud.
- The U.S. Department of Labor issued a final rule under the Employee Retirement Income Security Act of 1974 that allows fiduciaries to consider climate change and other environmental, social, and governance factors when deciding how to invest and exercise their shareholder rights. The new rule amends and clarifies two prior amendments that, according to the Labor Department, “unnecessarily restrained” retirement plan fiduciaries by forcing them to select investments based solely on pecuniary factors, such as investment risk and return. The Labor Department’s Assistant Secretary for Employee Benefits Security Lisa M. Gomez stated that “climate change and other environmental, social, and governance factors can be useful for plan investors as they make decisions about how best to grow and protect the retirement savings of America’s workers.”
- A federal appellate court temporarily halted the Biden Administration’s plan to forgive up to $20,000 in federal student loans until it adjudicates a lawsuit challenging the program. The court emphasized that debt forgiveness would be irreversible once enacted and explained that a temporary injunction would not undermine the program’s goals. The injunction comes days after a federal district court heard a separate challenge to the program and held that, absent clear authorization from Congress, the Administration’s debt forgiveness plan constitutes “an unconstitutional exercise of Congress’s legislative power.” The Education Department announced that it has stopped accepting loan forgiveness applications but is taking steps to overturn the orders.
- China eased COVID-19 restrictions requiring mass testing, mandatory quarantines, and lockdowns, marking a dramatic change to Chinese President Xi Jinping’s “zero-COVID” strategy. China’s National Health Commission announced that people with mild cases can now isolate at home instead of going to a government quarantine center and schools will return to in-person instruction. Most public facilities, aside from schools and hospitals, will also no longer require visitors to produce a “health code” on their phones, which tracked individuals’ health status. These relaxed measures followed recent protests that erupted in major Chinese cities, including Shanghai and Beijing, over Jinping’s strict COVID-19 policies.
- The Supreme Court issued an order temporarily preventing the termination of the Title 42 policy, which allowed border officials to “expel” migrants seeking asylum in the name of public health during the COVID-19 pandemic. In May 2022, the Administration sought to end the controversial policy, but a federal judge blocked the termination before it could take effect. In separate litigation, however, a different federal court ordered the policy’s termination by December 21. In response, 19 Republican-led states tried and failed to secure an emergency stay of the policy, arguing that the program’s termination would lead to an unmanageable influx of immigrants, and they appealed to the Supreme Court. The Biden Administration opposed the states’ motion but asked to delay termination until December 27. Experts expect the Supreme Court to issue a final decision on Title 42 quickly.
HIGHLIGHTS OF WHAT WE READ THIS YEAR
- In a new study, David Hoffman, a professor at the University of Pennsylvania Carey Law School, and Anton Strezhnev, an assistant professor at The University of Chicago, found that Philadelphia tenants who live farther from courthouses are less likely to show up to court, often leading to eviction by default. Hoffman and Strezhnev discovered that, between 2005 and 2021, nearly 40 percent of tenants were evicted because they did not appear to contest their cases. Hoffman and Strezhnev estimated that for every additional 10 minutes in commuting times, Philadelphians were between 0.65 and 1.4 times more likely to default on their rent and that if all tenants had an equal commuting time of 10 minutes, there would have been between 4,163 and 9,234 fewer evictions. Hoffman and Strezhnev suggested that virtual courts, easier rescheduling opportunities, and improved mass transit systems would increase access to eviction hearings for many people.
- In an article in the Northwestern Pritzker School of Law Journal of Criminal Law and Criminology, Trevor G. Gardner, professor at Washington University in St. Louis School of Law, and Esam Al-Shareffi outlined the state of regulation of police use of chokeholds and proposed policies to restrict this practice. Gardner and Al-Shareffi recommended that all states adopt policies to regulate police use of chokeholds and municipalities should step up to fill gaps or strengthen existing state policies and advocate for a complete bar on chokehold use for suspects fleeing or not posing an immediate threat to the public. Gardner and Al-Shareffi urged, however, that concepts of criminal law minimalism dictate that improper use of chokeholds should be prosecuted under existing criminal assault statutes and that additional codes should not be created to criminalize chokehold use because such codes would be superfluous.
- In a forthcoming article in the Boston University Law Review, Hannah Wiseman and Samuel Wiseman, professors at Penn State Law, and Chris Wright, a student at Penn State Law, argued that the federal government should pay farmers to install solar panels on farmland. Wiseman, Wiseman, and Wright noted that the need for a massive amount of land has posed a major impediment to the expansion of renewable energy. The authors proposed that policymakers address this challenge by amending the Agriculture Improvement Act, which already pays farmers to abstain from farming their land for environmental or conservation purposes.
- In a Brookings Institution report, Andre M. Perry, senior fellow at the Brookings Institution, argued that the Biden-Harris Administration’s student loan cancellation program does not address many of the systemic issues facing borrowers. Perry argued that rather than using an income limit of $125,000 for eligibility purposes, wealth, defined as a person’s assets minus their debt, should be used to provide better opportunities for families that have not been able to grow or inherit wealth because of discrimination. Additionally, he pointed to the rise in costs of college tuition as one of the most significant issues that the Administration’s loan plan does not address. He proposed that the long-term solution is to provide a universal public option for four year colleges and address the issues of discrimination and tuition prices now instead of “kicking the can down the road.”
- In an article for the Center for American Progress, Jessica Milli, Jocelyn Frye, and Maggie Jo Buchanan argued that federal policymakers must provide working Black women permanent access to paid family and medical leave. Milli, Frye, and Buchanon highlighted that 55 percent of parental leaves taken by Black mothers are unpaid. Milli, Frye, and Buchanan explained that a lack of guaranteed paid leave disproportionately harms Black women and families, who experience the highest rates of chronic illness and maternal and infant mortality. Moreover, the authors noted that lost income is “most acutely felt by Black women’s families since they are more likely to depend on their earnings” than other families. Milli, Frye, and Buchanan shared that Black women’s lost wages amount to about $3.9 billion annually. Milli, Frye, and Buchanan concluded that, especially during the COVID-19 pandemic, a federal paid leave policy is more necessary than ever.
- In an article in the Department of Justice Journal of Federal Law and Practice, David Howard Sinkman and Gregory Dorchak, assistant U.S. attorneys at the U.S. Department of Justice, argued that federal enforcement of the Americans with Disabilities Act (ADA) in jails and prisons leads to fewer opioid overdose deaths. Sinkman and Dorchak explained that Opioid Use Disorder (OUD) qualifies as a disability under the ADA, and that the ADA thus protects individuals’ use of medications approved for the treatment of OUD. Sinkman and Dorchak noted that opioid overdose deaths occur at relatively higher rates in jails and prisons. Sinkman and Dorchak concluded that ensuring jails and prisons comply with the ADA and permit treatment for individuals living with OUD could go a long way in reducing opioid overdose deaths.
- In a public comment letter submitted to the Federal Acquisition Regulatory Council, the New York University School of Law Institute for Policy Integrity and several other environmental nonprofits advocated a procurement approach that accounts for climate impacts. The Council—a group consisting of the U.S. Department of Defense, the U.S. General Services Administration, and the National Aeronautics and Space Administration oversees and advises the U.S. government’s goods and services procurement policy. The Institute argued that the Council’s goal of considering the social cost of greenhouse gases in its procurement decisions could best be met by directing agencies to apply social cost values when evaluating bids on government contracts and requiring binding emissions reductions clauses in contracts when estimates are unavailable.
- In an article in the SMU Science & Technology Law Review, Nicholson Price, law professor at Michigan Law, argues that artificial intelligence (AI) used in the medical field, such as systems that can predict patient risk for disease or detect cancer, should be subject to a system of “distributed, localized governance” to protect patients and ensure the technologies’ benefits are captured. He notes that certain medical AI systems can be deeply flawed and can harm patients when they do a poor job predicting risk. Furthermore, these systems may be less effective when used in a poorly resourced health care facility. Due to this variance in the effectiveness of medical AI, Price argues that centralized oversight by a federal agency, such as the U.S. Food and Drug Administration, may produce lackluster results. Instead, he proposes solutions such as funding low-resource institutions to oversee the effectiveness of their own medical AI consistently and building technological infrastructure to monitor these systems successfully.
- In a Center for American Progress report, Alex Fredmen, a former research assistant at American Progress, argued that government regulators must do more to address the risk that climate change poses for the insurance industry. Fredmen noted that devastating fires and floods are occurring with increasing frequency, threatening insurance companies’ financial health. Fredmen emphasized that insurance companies cannot be trusted to take necessary action on their own. Fredman contended that regulators, primarily at the state level, must act to ensure that companies mitigate the growing risk of climate change. Fredmen explained that regulatory action is necessary to preserve the availability of insurance for individuals living in areas at a higher risk for climate-related disasters.
This page is part of a five-part series, entitled The 2022 Regulatory Year In Review.