Week in Review

IN THE NEWS

• President Donald J. Trump signed a narrow spending package to end the 43-day government shutdown, allowing federal agencies to begin reopening after the longest lapse of government funding in U.S. history. The bill, which passed the U.S. House of Representatives 222–209 after a group of Democratic congressmembers broke with their party to advance it, funds the government through January, reverses recent federal worker layoffs, and guarantees back pay for furloughed employees. The package omits Democrats’ priority of extending Affordable Care Act tax credits, prompting a separate vote over health-care subsidies in mid-December.
• ​​The U.S. Supreme Court declined to hear a case challenging its 2015 legalization of gay marriage in Obergefell v. Hodges. In Obergefell, the court held that marriage is a fundamental right that states cannot deny to couples on the basis of their same-sex partnership. In the denied case, a Kentucky county clerk sought relief from fines she received after refusing to issue same-sex marriage licenses. Some observers thought the Court might overturn Obergefell, after it overturned the right to abortion in Dobbs v. Jackson Women’s Health Organization, in which Justice Thomas called in his concurrence for a reconsideration of Obergefell. This denial, however, leaves Obergefell intact.
• A federal judge ordered the release of hundreds of immigrants detained during the Trump administration’s Chicago-area raids, “Operation Midway Blitz.” U.S. District Judge Jeffrey I. Cummings directed the U.S. Department of Justice to identify by November 19 which of the more than 600 immigrants remain in custody, and he barred officials from pressuring detainees into voluntary deportation. The ruling, issued amid allegations that federal agents conducted warrantless arrests in violation of a 2022 order, could lead to hundreds more releases as courts review the raids’ legality.
• The Consumer Financial Protection Bureau (CFPB) may lose funding after the Trump Administration announced that, under its new legal interpretation, the CFPB’s current funding source is unlawful. The Administration declared in a memorandum that the CFPB’s funding, which comes from the “combined earnings of the federal reserve system,” means only profits—so when, as in recent years, the system operates at a loss, the CFPB cannot receive funding. The National Treasury Employees Union revealed the memorandum as part of its ongoing lawsuit to prevent “the Executive Branch’s ongoing effort to dismantle the CFPB.”
• The Trump Administration is preparing to allow new offshore oil and gas drilling off the California coast for the first time in roughly four decades, per a draft U.S. Department of the Interior map. Governor Gavin Newsom (D-Calif.) said the proposal would be “dead on arrival” in California. The proposal would schedule six lease sales between 2027 and 2030 and expand drilling in the eastern Gulf of Mexico, though it is unclear how much interest companies have in California waters after decades of limited activity.
• The U.S. Environmental Protection Agency (EPA) proposed lowering reporting requirements for manufacturers or importers of products containing per- and polyfluoroalkyl substances (PFAS), which can take hundreds to thousands of years to break down in the environment. The current rule requires companies to report data to EPA related to PFAS exposure and any existing environmental and health effects. The proposed change would exempt companies producing compounds containing less than 0.1 percent of PFAS from the reporting requirement. EPA Administrator Lee Zeldin stated that the proposed rule would decrease compliance burdens.
• The U.S. Food and Drug Administration (FDA) announced it will remove the “black box” warning label—the most severe safety label FDA places on prescription drugs—from hormone therapy drugs, which are used to treat menopause. The label was added after a study found that the drugs increased several health risks including breast cancer, strokes, and dementia. Another study released before the FDA announcement, however, indicated the benefits of hormone therapy drugs in treating menopause as long as patients did not have certain health conditions. FDA Commissioner Marty Makary announced that an internal panel reviewed the latest scientific studies and recommended the warning’s removal.
• The U.S. Supreme Court extended its previous order blocking full Supplemental Nutrition Assistance Program(SNAP) benefits for the month of November until 11:59 p.m. on November 13. The Court’s initial order paused a lower court ruling that required the Trump Administration to distribute SNAP payments using congressionally appropriated contingency funds while the federal government was shut down. Justice Ketanji Brown Jackson stated that she would not have extended the order pausing benefits. In the meantime, several states implemented stopgap measures to cover SNAP benefits while federal funds were on hold.

WHAT WE’RE READING THIS WEEK

• A recent report by the U.S. Government Accountability Office (GAO) examined how the U.S. Department of Energy is investigating the current and past use of per- and polyfluoroalkyl substances (PFAS) at its sites for purposes such as firefighting and uranium enrichment. PFAS, or “forever chemicals,” can remain in the environment for hundreds or thousands of years and cause health problems such as cancer and infertility. GAO found that since the Energy Department announced its intention to survey PFAS contamination at 57 sites in 2022, it had not finished reviewing over half of them, and over 100 other sites were not surveyed at all. GAO observed that the lack of completed site reviews means that the Energy Department will not know the extent of its PFAS contamination or where it poses health risks. As a result, GAO concluded that the Energy Department is not currently able to prioritize cleanup actions and estimate cleanup costs.
• In a forthcoming article, Evangelos Razis, a staff member of the U.S. House of Representatives Committee on Energy & Commerce, and James C. Cooper, a law professor at the George Mason University Antonin Scalia Law School, argued that Congress should pass a moratorium on state AI regulations, allowing Congress to devise a single, nationwide AI law. States’ urgency to pass consumer AI regulations threatens to create a patchwork of laws that would hamper innovation, Razis and Cooper claimed. Congress, however, risks doing more harm by passing a federal regulation too hastily. Razis and Cooper argued that there is past precedent for a temporary moratorium—such as temporary bans on state regulation of commercial space flights or the internet—which would allow more time to evaluate how current laws are managing AI harms and determine what gaps must be filled.
• In a recent article in The George Washington Law Review, Jennifer Nou of the University of Chicago Law School argued that modern Presidents rely on the Executive Office of the President (EOP) to coordinate and manage regulatory decisions. She explained that “presidential brokering” is a White House–led process through which advisers gather information, test competing arguments, and guide agencies. Nou described the Domestic Policy Council and National Economic Council as central brokers and that brokering is distinct from other mechanisms like executive orders. Nou contended that brokering can improve responsiveness and the quality of regulatory decisions, but the practice increases opacity, raises decision costs, and risks concentrating too much power in the presidency. She concluded by proposing reforms for presidents, Congress, and courts to enhance transparency, accountability, and the legitimacy of presidential involvement in regulatory policy.

EDITOR’S CHOICE

• In an essay in The Regulatory Review, Russell Wheeler, nonresident senior fellow at the Brookings Institution’s Governance Studies Program, argued that the 2018–2019 federal government shutdown exposed longstanding “deferred maintenance” of the federal judiciary. Wheeler extended Paul Light’s concept of a “quiet crisis” in public service to the courts, showing how underfunding, unfilled vacancies, and outdated resource allocations have weakened the judiciary’s ability to function as an independent branch. Wheeler identified three main problems worsened by shutdowns: a high number of judicial vacancies, the lack of new judgeships despite rising caseloads, and growing difficulty in recruiting judges and staff. He concluded that, although the crisis may renew attention to public service reform, it is unlikely to generate lasting investment in the courts, leaving the judiciary’s structural deficiencies unaddressed.