Week in Review

IN THE NEWS

• The U.S. Supreme Court blocked President Donald J. Trump’s effort to deploy the National Guard in Illinois under the Posse Comitatus Act. In an unsigned order, the Court found that this law likely only applies in situations where regular military forces are incapable of maintaining order, concluding that the Trump Administration “failed to identify a source of authority that would allow the military to execute the laws in Illinois.” Justices Clarence Thomas, Samuel A. Alito Jr., and Neil M. Gorsuch dissented, arguing that their colleagues should not have decided this dispute based on the definition of “regular forces,” which was not litigated in the lower courts. In a separate concurrence, Justice Brett Kavanaugh explained that, although he voted to block the deployment, he would have done so on narrower grounds. This decision upheld earlier rulings by U.S. District Judge April Perry and the United States Court of Appeals for the Seventh Circuit.
• The Trump Administration reached an agreement with unions and Democratic state attorneys general to reevaluate National Institute of Health (NIH) grant applications that had been delayed or denied because of their connections to “diversity, equity and inclusion initiatives.” The agreement provides that NIH will apply its standard process, rather than the Trump Administration’s process, to review applications that were delayed or denied. The courts, however, are still determining whether the Trump Administration’s standards violated the Administrative Procedure Act, with the U.S. Court of Appeals for the First Circuit scheduled to hear oral arguments next week.
• The U.S. District Court for the District of Massachusetts paused the Trump Administration’s termination of Temporary Protected Status (TPS) for South Sudanese nationals. In her decision, U.S. District Judge Angel Kelleyfound that this temporary pause would “minimize harm” for plaintiffs and allow more time for arguments on the merits. She also noted that the revocation of TPS status would have “serious, long-term consequences” for the approximately 200 South Sudanese nationals in the United States who are protected by TPS. This decision comes as lawsuits challenging the termination of TPS designations for a number of other countries, including Afghanistan and Haiti, are still pending.
• A federal judge in California ruled that the Department of Health and Human Services (HHS) can share information about Medicaid participants with Immigration and Customs Enforcement. U.S. District Judge Vince Chhabria ruled that “basic biographical, location and contact information” may be shared, but limited sharing of personal information beyond that. While immigrants unlawfully present in the United States are generally ineligible for Medicaid, all states are required to provide emergency Medicaid, regardless of immigration status.
• Five states will restrict Supplemental Nutrition Assistance Program (SNAP) beneficiaries from purchasing certain unhealthy foods such as soda and candy starting on January 1, 2026. This development followed a push by U.S. Health and Human Services Secretary Robert F. Kennedy, Jr., and U.S. Secretary of Agriculture Brooke L. Rollinsfor states to enact such restrictions to prevent diseases such as obesity and diabetes. Retail and nutrition policy experts, however, cautioned that state SNAP programs are unprepared for this change because they lack complete lists of all the foods impacted. The National Grocers Association and other industry groups added that these SNAP restrictions would incur costs of $1.6 billion in the first year and $759 million per year after that to U.S. retailers.
• The Walt Disney Company will pay $10 million to settle with the Federal Trade Commission (FTC) following allegations that it allowed the collection of children’s personal data from viewers of kid-directed videos on YouTube without notifying parents or obtaining the consent required by the Children’s Online Privacy Protection Rule. The company also agreed to create a program to comply with children’s data protection laws. The settlement is limited to the distribution of certain content on YouTube and does not involve Disney-owned digital platforms, such as Disney+.
• The U.S. Food and Drug Administration approved Vanda Pharmaceuticals’s Nereus (tradipitant), an oral drug for preventing motion sickness in adults, marking the first treatment of its kind in over 50 years. The drug, taken as a capsule one hour before travel, demonstrated superior efficacy over placebo in trials for car, sea, and air sickness, with mild side effects such as headaches. Supporters praised the breakthrough for addressing an unmet need beyond drowsiness-causing antihistamines, while critics warned of limited long-term data and potential off-label use, urging post-market surveillance.
• The U.S. Food and Drug Administration declined to approve Outlook Therapeutics’s ONS-5010 (Lytenava), a formulation for treating wet age-related macular degeneration. The agency’s response letter cited unresolved deficiencies in manufacturing and clinical data from prior inspections, despite earlier advisory committee support for efficacy and safety. Supporters of the drug praised its potential for broader access and quality control, while critics warned of risks mirroring off-label use concerns, emphasizing strict manufacturing standards.

WHAT WE’RE READING THIS WEEK

• In an article in Publius: The Journal of Federalism, Rebecca Bromley-Trujillo of Christopher Newport University and Michael Dichio of the University of Utah examined the rise of transactional federalism during the second Trump Administration. They argued that the administrative presidency’s expansion, especially Trump’s use of executive actions to reward allies and punish opponents, has deepened partisan divides and complicated intergovernmental relations. Bromley-Trujillo and Dichio highlighted state-level resistance on issues such as education and energy. They concluded that Trump’s transactional approach, enabled by narrow majorities and judicial trends, poses unprecedented challenges to democratic federalism, calling for further study of state-level resistance and civil society responses.
• In a Brookings Institution report, Elena Spatoulas Patel, the co-director of the Urban-Brookings Tax Policy Center, argued that a recent policy shift by the U.S. Postal Service, under which postmarks will no longer indicate the date a piece of mail was sent, creates unique risks for programs that “depend on postmark-based deadlines.” This change falls under the Delivering for America plan, undertaken by the Postal Service to reduce costs and increase efficiency. Although the U.S. Postal Service underscored that it is not changing postmarking practices themselves, but rather updating their systems to clarify when and where mail is truly processed, Patel nevertheless noted that the change will bring legal ambiguity into systems that treat postmarks as proof of timely mailing. For example, Patel explained that many states use the date of the postmark as the “legal determinant” for when a ballot has been mailed. Patel urged agencies that depend on postmarks to reevaluate their current rules and align their practices with the U.S. Postal Service’s new changes.
• In a recent essay in the Yale Journal on Regulation’s blog, Notice & Comment, Lev Menand, a professor at Columbia Law School, “fact-checked” the oral arguments in Trump v. Slaughter, a case that many expect will overturn a 90-year-old decision upholding statutes that prevent the President from firing heads of independent agencies without cause. Menand contended that the Solicitor General mischaracterized the Court’s holding in key presidential removal cases such as Ex Parte Hennen and Parsons v. United States. He also argued that both the Solicitor General and Justice Amy Coney Barrett incorrectly stated the original public meaning and congressional intent surrounding presidential removal authority over several agencies, including the War Debt Commission, the Federal Trade Commission, and the Federal Election Commission. Menand also criticized the justices for inadequately addressing a carve-out for the Federal Reserve.

EDITOR’S CHOICE

• In an essay in The Regulatory Review, Jennifer E. Rothman, a professor at the University of Pennsylvania Carey Law School, examined the reintroduced Nurture Originals, Foster Art, and Keep Entertainment Safe (NO FAKES) Act of 2024, which aims to create federal rights against unauthorized AI-generated digital replicas of voices and likenesses. Rothman argued that, while the bill addresses deepfakes, its broad scope risks chilling protected speech and innovation under the First Amendment. She proposed narrowing liability to commercial harms, adding intent requirements, and strengthening fair use defenses. Rothman concluded that revisions could balance intellectual property protections with free expression in the AI era.