Week in Review

IN THE NEWS

• The U.S. Court of Appeals for the Fifth Circuit vacated a Federal Trade Commission (FTC) cease-and-desist order against Intuit, ruling that the FTC’s internal adjudication of deceptive advertising claims violates the Constitution. The panel held that the agency’s administrative proceedings, which lack jury trials and independent judicial oversight, unconstitutionally deprive respondents of due process and infringe on the President’s Article II removal powers. The court found that the FTC could not constitutionally adjudicate the matter internally. Supporters praised the decision for reining in agency overreach and protecting due process, while critics warned it undermines the FTC’s ability to enforce consumer protection laws efficiently. The ruling is likely to affect other FTC administrative actions and may prompt further challenges to agency adjudication structures.
• The Trump Administration announced its national artificial intelligence (AI) legislative framework, following an executive order signed last December that discourages states from adopting or enforcing AI regulations that conflict with federal policy. The Administration recommended that Congress consider protecting children from AI misuse, safeguarding communities from data infrastructure development, respecting intellectual property rights through processes such as licensing schemes, preventing censorship, enabling innovation, and incorporating AI into education. The Administration also recommended that the national framework preempt state laws that impose undue burdens, except in areas such as police powers and state zoning law.
• The Securities and Exchange Commission (SEC) issued guidance distinguishing between cryptocurrency tokens that fall under the purview of the SEC and the Commodity Futures Trading Commission. The SEC separated digital assets into five categories—digital commodities, digital collectibles, digital tools, stablecoins, and digital securities—and explained that the SEC can only regulate digital securities. The guidance, however, noted that the SEC would retain the ability to oversee certain cases involving other types of digital assets. SEC Chairman Paul S. Atkins emphasized that this guidance would clear up confusion surrounding SEC treatment of cryptocurrency assets and “foster a regulatory environment that allows the crypto industry to flourish.”
• U.S. Senate Republicans launched an investigation into the manufacturers of mifepristone, the primary abortion pill, and escalated pressure on the Food and Drug Administration (FDA) to tighten restrictions or revoke approval of the drug. Senator Bill Cassidy (R-La.), chair of the Senate Health, Education, Labor and Pensions Committee, requested detailed records from several manufacturers of mifepristone on adverse events, manufacturing practices, and compliance with FDA requirements. The probe follows Republican concerns over reported complications and claims that FDA’s risk evaluation and mitigation strategy (REMS) program has been insufficiently enforced. Supporters praised the inquiry as a necessary step to protect women’s health and ensure regulatory accountability, while critics warned it represents political interference in medical decisions and could restrict access to FDA-approved medication. FDA has 30 days to respond to the committee’s requests.
• The National Surface Transportation Board (NTSB) proposed a rule to update its environmental review process under the National Environmental Policy Act (NEPA). The updates clarify how the NTSB will determine the appropriate level of environmental review, specify new categories of agency actions that do not require environmental review, and add new guidelines for interagency coordination. This proposed rule follows a 2025 executive order rescinding the Council on Environmental Quality’s regulations implementing NEPA that had previously applied to every agency and the U.S. Supreme Court’s decision in Seven County Infrastructure Coalition v. Eagle County, which stressed that agencies be given deference in conducting environmental review under NEPA.
• The Federal Communication Commission (FCC) banned all foreign-made consumer routers, following a determination by President Donald J. Trump’s 2025 National Security Strategy that foreign routers pose “unacceptable risks” to national security. This restriction applies only to new device models and excludes routers already approved for sale or owned by consumers. This ban follows a similar decision on foreign-made drones made last December.
• The U.S. Department of Agriculture (USDA) cut hundreds of millions of dollars in aid for farmers to buy and retain land, citing “wasteful spending” and “discriminatory preferences based on diversity, equity, and inclusion.” USDA launched the Increasing Land, Capital, and Market Access Program in 2023, awarding $300 million to 50 selected programs. According to a cancellation letter obtained by POLITICO, Farm Service Agency Associate Administrator Steven Peterson stated that the grants were discriminatory, did not align with congressional intent, and had exposed taxpayers to waste.
• The U.S. Merit Systems Protection Board (MSPB) ruled in Jackler v. DOJ that civil service protections for immigration judges, classified as inferior officers, violate the separation of powers by infringing on the President’s Article II removal authority. The Board relinquished jurisdiction over appeals from certain immigration judges, effectively allowing the Department of Justice to remove them without the usual due process safeguards. Former immigration judges criticized the decision, arguing that it undermines judicial independence. The MSPB found that statutory tenure protections for these officers conflict with the President’s constitutional power to supervise and remove executive branch officials. Supporters praised the ruling for restoring executive accountability, while critics warned it threatens the independence of immigration adjudication and could lead to politicized removals.

WHAT WE’RE READING THIS WEEK

• In an article in the Cornell Law Review, Shweta Kumar, a professor at the University of Kentucky J. David Rosenberg College of Law, argued that states should intervene to develop and distribute pharmaceuticals in order to address the problems of drug shortages and high drug prices. Kumar explained that ongoing litigation and the limitations of existing authorities have hampered the ability of federal and state laws to lower drug costs. A state public pharmaceutical sector, she contended, would be able to pass laws against price gouging, secure supply chains, and create a greater knowledge base for drug development in the public sector. To survive patent or regulatory challenges, Kumar recommended that states invest in state-owned facilities to produce drugs, avoid the appearance of patent infringement, and amend state law to avoid constitutional challenges.
• In a recent essay in the Yale Journal on Regulation, Jane Manners, a professor at Fordham School of Law, and Lev Menand, a professor at Columbia Law School, argued that the executive, historically, could not remove officials at their discretion when legislatures pair fixed terms with “for cause” removal provisions. Manners and Menand argued that instead, the process required a “court-like” process including formal notice, the ability to be heard, and judicial review. Manners and Menand concluded that the government’s argument, in current litigation, that “for cause” removal requires no formal processes has little historical support and would undermine statutory independence for agencies such as the Board of Governors of the Federal Reserve System.
• In a recent article in Governance, Steven J. Balla, a professor of political science and public policy, and his coauthors, examined how the volume and timing of regulatory actions during the final months of a presidential administration affect public participation in the rulemaking process. Balla and his coauthors found that the “midnight” period sees a sharp increase in proposed rules, but agencies often provide shorter comment periods, leading to lower public engagement and fewer comments overall. They argued that this reduced participation undermines the legitimacy and quality of final regulations issued at the end of an administration. Balla and his coauthors recommended that agencies adopt standardized minimum comment periods even during high-volume periods and prioritize transparency to maintain meaningful public input. They concluded that preserving participatory opportunities during midnight rulemaking is essential for accountable and high-quality regulatory governance.

EDITOR’S CHOICE

• In an essay in The Regulatory Review, Susan E. Dudley, a distinguished professor of practice in the Trachtenberg School of Public Policy and Public Administration at The George Washington University, argued that the Environmental Protection Agency (EPA) should not stop monetizing the benefits associated with reducing exposure to fine particulate matter and ozone when doing cost-benefit analysis. Dudley acknowledged that EPA’s current approach has some flaws, such as reliance on assumptions that overstate exposure risk where uncertainty exists and extrapolation mortality benefits to levels below what has been studied thus far. Dudley, however, emphasized that ignoring the benefits of air pollutant reduction altogether is not the solution. Instead, Dudley suggested that EPA provide a “reasonable range of outcomes” in its modeling, use different valuation approaches, and conduct more research to reduce uncertainty.