Week in Review

IN THE NEWS

• The U.S. Supreme Court, in a 6-3 decision in Biden v. Nebraska, ruled in favor of six states that objected to a Biden-Harris Administration decision to cancel up to $400 billion in federal student loans. On the issue of standing, the Court held that Missouri has the right to sue because it created the Missouri Higher Education Loan Authority, a servicer and holder of student loans, which would incur fees due to the cancellation. On the merits, the Court held that the HEROES Act of 2003, the statutory basis for the policy, only allows the administration to make “modest adjustments” to laws and regulations governing loans, and “not transform them.” Justice Elena Kagan, writing in dissent, criticized the Court’s “cardinal error” of ignoring language in the HEROES Act explicitly authorizing the administration to waive, as well as modify, the regulations at issue.
• The Supreme Court, in another 6-3 decision, ruled in favor of a Colorado design company that objected to creating wedding websites for same-sex couples. The Court held that the Free Speech Clause of the First Amendment prohibited state officials from requiring the designer to create a website with a message with which they disagree. Writing for the majority, Justice Gorsuch argued that “the First Amendment envisions the United States as a rich and complex place where all persons are free to think and speak as they wish, not as the government demands.” Justice Sotomayor, writing in dissent, remarked that the “symbolic effect of the decision is to mark gays and lesbians for second-class status.”
• The Supreme Court, in a unanimous decision delivered alongside Biden v. Nebraska, concluded that the respondents, two student-loan borrowers, lacked standing to challenge the U.S. Department of Education’s student-loan debt-forgiveness plan. Those borrowers argued that the plan was unlawful because the Education Department did not undergo notice and comment rulemaking, precluding the respondents from expressing their desire for a more expansive debt-forgiveness plan. The Supreme Court declined to rule on the borrowers’ procedural challenges to the plan, holding that they lacked standing because they failed to show that the policy had injured them.
• A federal judge in Louisiana enjoined key Biden Administration agencies and officials from contacting social media firms for the purpose of discouraging or removing First Amendment-protected speech. Missouri and Louisiana claimed in a lawsuit that the Biden Administration had “colluded with and/or coerced social-media platforms to suppress disfavored speakers, viewpoints, and content” over the course of the COVID-19 pandemic. The judge signaled that the states eventually are “likely to succeed on the merits” of their First Amendment free speech claim, but his ruling is not final.
• The Federal Trade Commission (FTC) proposed a new rule to stop marketers from using deceptive review and endorsement practices, including fake, compensated, and insider reviews, company-controlled review websites, illegal review suppression, and the buying and selling of social media followers and views. This rule comes in the wake of several recent enforcement actions by the FTC. In its proposal, the FTC argued that case-by-case enforcement may not be enough to deter deceptive practices, and that a clear rule permitting civil penalties would strengthen enforcement actions. The FTC also noted the potential future impact of generative AI technologies in the creation of fake reviews.
• The Federal Communications Commission (FCC) announced that its robocall protection plan aimed at minimizing automated telephone calls is now in full effect. According to the protection plan, the FCC Robocall Response Team requires all internet protocol-based voice service providers to “implement spoofed robocall defense standards,” including caller ID authentication. FCC Chair Jessica Rosenworcel stated that such measures will enable the FCC to identify and disconnect illegal robocallers and better serve customers who are “understandably exhausted and frustrated” by frequent spam calls.
• The Mine Safety and Health Administration (MSHA) of the U.S. Department of Labor announced a proposed rule to limit miners’ exposure to silica, a carcinogenic dust linked to black lung disease. Currently, miners may legally be exposed to silica levels twice that allowed in other workplaces. The Assistant Secretary of the MSHA, Christopher Williamson, explained that the rule would limit exposure levels and require employers to take corrective action if they exceed this limit. Williamson also claimed that the proposed rule will “prevent more miners from suffering from debilitating and deadly occupational illnesses.”
• Minnesota Governor Tim Walz is seeking a leader for the state’s new marijuana regulatory agency. Pursuant to Minnesota’s recent legalization law, the regulation of cannabis products will move from the Minnesota Department of Health to the Minnesota Office of Cannabis Management. The office’s incoming executive director  would assist in establishing the agency according to the guidelines of the new law. Beginning in August, the law permits Minnesotans 21 years of age and older to possess and use cannabis and related products.

WHAT WE’RE READING THIS WEEK

• In a recent paper, Omri Ben-Shahar, a professor at the University of Chicago Law School, suggested that despite widespread regulatory and political resistance to real-time tracking devices in cars, the benefits of reduced fatal accidents and lower insurance premiums outweigh the costs. Ben-Shahar argued that although insurance companies have used these technologies since 2008, California has banned them and other states have restricted them. Ben-Shahar contended that by installing tracking technology in their cars, consumers meaningfully consent to the tracking devices’ collection of their personal data. Furthermore, Ben-Shahar suggested that a focus on individual-level driving behavior rather than group-level driving behavior would actually reduce race and class discrimination in insurance pricing, not increase it.
• In a recent article in the Administrative Law Review, Christopher Slobogin, the Milton Underwood Professor of Law at Vanderbilt University Law School, discussed the U.S. Court of Appeals for the Fourth Circuit’s 2021 decision in Leaders of a Beautiful Struggle v. Baltimore Police Department. In that case, the Fourth Circuit held that the Baltimore Police Department’s aerial surveillance program violated the Fourth Amendment. Slogobin argued that suspicionless surveillance programs like Baltimore’s require a regulatory approach grounded in administrative law principles—specifically, “community-vetted” rulemaking—that provides similar protections from arbitrariness and discrimination that search warrants typically provide.
• In a recent essay in the Harvard Law Review, the late Newton Minow, former Chair of the FCC, and Martha Minow, the 300th Anniversary University Professor at Harvard University, responded to criticism of social media companies’ self-regulation. Minow and Minow argued that self-regulation is more effective than the federal governments’ regulatory efforts, given the ever-changing nature of the social media industry. They also suggested that third-party watchdog organizations can help protect against any self-interested biases of individual companies by offering licenses, allowing private industry actors to create rules and set standards themselves.

EDITOR’S CHOICE

• In an essay in The Regulatory Review, Kate Dugan, an attorney at Community Legal Services of Philadelphia, identified home buying scams as one factor contributing to decreasing homeownership rates in low-income communities. Dugan explained that the passage of a law targeting predatory home buying schemes in Philadelphia worked toward “preserving intergenerational wealth and protecting vulnerable residents” in the city. Dugan acknowledged that lawmakers must do more to address the nation’s history of discrimination in the housing market.