Week in Review

The U.S. Supreme Court ruled in a 6-3 decision that the federal law preventing the President from removing independent members of the Federal Trade Commission (FTC) except for “inefficiency, neglect of duty, or malfeasance in office” violates constitutional separation of powers. President Donald J. Trump removed FTC Commissioner Rebecca K. Slaughter without citing any statutory cause, alleging that her continued service was inconsistent with his Administration’s priorities. The majority wrote that FTC commissioners must remain subject to at-will presidential removal because the agency exercises executive power. The three dissenting justices argued that the decision gives the President “a power unknown even to the English Crown” and turns independent multi-member agencies that Congress designed to operate free from partisan control into purely executive bodies.

The Supreme Court ruled in a 5-4 decision that President Trump failed to provide Lisa Cook, a member of the Board of Governors of the Federal Reserve System, with necessary procedural protections when he attempted to fire her. Chief Justice John G. Roberts, Jr., noted that the Federal Reserve follows in the tradition of the First Bank of the United States, which was designed to have independence from political pressure. As such, Federal Reserve governors can only be removed by the President for cause, which the Court held requires notice and a hearing. Because President Trump did not provide Cook with the required process, the Court ruled that the government was unlikely to prevail in its case against Cook and rejected the government’s application for an order that would have allowed Cook to be removed from office while the case was being litigated.

The Supreme Court ruled that children born in the United States are citizens at birth under the Citizenship Clause of the U.S. Constitution’s Fourteenth Amendment, striking down President Trump’s executive order that aimed to end birthright citizenship. Chief Justice Roberts rejected the Trump Administration’s argument that these children are not subject to the jurisdiction of the United States. Chief Justice Roberts explained that the Citizenship Clause was designed to codify the longstanding common law principle that people born on a country’s soil owe allegiance to that country, regardless of their parents’ immigration status. Chief Justice Roberts concluded that citizenship is “the right to freely participate in our political community,” and the Fourteenth Amendment’s Framers intended to extend that promise to “every free-born person in this land.”

The Supreme Court held in a 6-3 decision that the Federal Election Campaign Act’s restrictions limiting how much political parties can spend in coordination with candidates violate the U.S. Constitution’s First Amendment. The restrictions were intended to prevent donors from avoiding limits on candidate donations by donating to a political party instead. Although the Court had previously upheld the restrictions in a 2001 case, the Court on Tuesday ruled that the claimed governmental interests in limiting coordinated expenditures did not justify the infringement on political parties’ speech. The Court held that disclosure laws and rules about how much money from individual donors to political parties could be marked for specific candidates could address concerns about undue influence by wealthy donors instead.

The Supreme Court held that states may count mail-in ballots received after Election Day if the ballots were postmarked by Election Day, rejecting a challenge to a Mississippi election law brought by the Republican National Committee. Writing for a 5-4 majority, Justice Amy Coney Barrett concluded that the federal election-day statutes require ballots to be cast by Election Day but leave ballot-receipt deadlines to state law. The Court reasoned that the Uniformed and Overseas Citizens Absentee Voting Act reinforces that distinction by recognizing state authority to establish ballot-receipt deadlines. The ruling leaves similar postmark deadlines in effect in Mississippi and 13 other states and may shape future disputes over state authority to administer elections and the relationship between federal election laws and state voting procedures.

A federal judge issued a decision blocking the implementation of a U.S. Postal Service (USPS) proposed rule. USPS had proposed the rule, which required states to provide lists of voters receiving mail-in ballots to USPS, after President Trump issued an executive order calling for greater federal control over mail-in ballots in federal elections. Judge Emmet G. Sullivan of the U.S. District Court for the District of Columbia held that the rule would violate a settlement agreement that USPS had previously signed with the NAACP, in which USPS agreed to prioritize delivering election mail in a timely manner. Another earlier federal court decision blocked the portions of the executive order that called for the creation of voter lists.

The Supreme Court ruled in a 7-2 decision that the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) preempts a state failure-to-warn claim against Monsanto, an agricultural corporation, over its glyphosate-based herbicide Roundup. Glyphosate is a widely used weed killer, which some scientific studies have linked to cancer. The majority stated that a tort claim requiring Monsanto to add a cancer warning would violate FIFRA’s uniformity requirement, which prohibits states from imposing labeling requirements “in addition to or different from” those approved by the U.S. Environmental Protection Agency. The case arose from a lawsuit by Missouri resident John Durnell, who alleged that two decades of Roundup exposure caused his non-Hodgkin’s lymphoma. A jury awarded Durnell more than $1 million at trial. Justices Ketanji Brown Jackson and NeilGorsuch dissented, noting that although FIFRA limits states’ power to regulate pesticide levels, it does not eliminate their authority. The two justices added that no conflict of laws exists because Durnell’s claim has the same practical effect as FIFRA’s misbranding prohibition.

The U.S. Food and Drug Administration (FDA) proposed a rule that would require foreign tobacco product manufacturers to register their establishments and list their products with the agency, extending requirements that currently apply to domestic manufacturers. The proposed rule would establish registration and product listing procedures for domestic and foreign manufacturers, helping FDA identify unauthorized tobacco products and conduct inspections of foreign manufacturing facilities. The rule would also require manufacturers to maintain product records and provide detailed information about tobacco products, including e-cigarettes, to support the agency’s enforcement efforts. If finalized, the rule would strengthen FDA’s ability to identify illegal tobacco products before they enter the United States and promote consistent regulatory oversight of domestic and foreign manufacturers.

In a recent report, the U.S. Governmental Accountability Office (GAO) examined the management of fishing sites by the U.S. Department of the Interior on federal land along the Columbia River. The Interior Department created the fishing access sites after federal dams destroyed traditional fishing grounds that had been guaranteed to four Tribes in 1855 treaties. Many of the fishing sites today, however, require repairs to address significant sanitation and safety concerns caused by deferred maintenance. GAO recommended that the Interior Department update information about the fishing sites in its management system to ensure that the sites are considered for resource allocation and clarify who has responsibility to maintain the sites.

In a recent Brookings Institution report, Philippe Delacote and Tara L’Horty, economists at the French National Research Institute for Agriculture, Food and the Environment, INRAE, together with Sanjay Patnaik and Aidan Conley at the Brookings Center on Regulation and Markets, argued that carbon credit markets require stronger regulatory oversight to improve transparency, quality, and market integrity. Delacote and his coauthors explained that carbon credits often fail to deliver the environmental benefits they claim, and buyers frequently lack sufficient information to distinguish high-quality credits from low-quality credits. The Delacote team  contended that policymakers should require greater public disclosure of project data and support systematic evaluations to verify credit quality. The team recommended a portfolio-based approach to carbon credit procurement to improve market reliability while preserving investment in diverse climate mitigation projects.

A report by GAO reviewed the National Alzheimer’s Project, led by the U.S. Department of Health and Human Services (HHS), and found that the agency has not followed the project’s key recommendations, including setting near-term goals and effectively communicating progress to relevant stakeholders. The project has contributed to key achievements in combating Alzheimer’s disease since 2011—including improving diagnostic testing and risk reduction, and leading the first two approved treatments aimed at slowing disease progression in early stages. HHS officials contended that resource constraints make it challenging to follow the project’s key practices as Congress has not appropriated dedicated funding for the project’s efforts. Nevertheless, GAO stressed that following key practices would help HHS better assess the project’s progress and clearer communication about its achievements would help stakeholders better understand the returns on federal investments in the project.

In an essay in The Regulatory Review, Rachael Totz and Tasneem Mohammad argued that state efforts to expand access to affordable health care depend on the federal framework established by the Patient Protection and Affordable Care Act (ACA). They explained that proposals to reduce federal Medicaid funding and premium tax credits would limit states’ ability to innovate and maintain affordable health insurance programs. Totz and Mohammad examined how states have used the ACA to create programs that reduce coverage gaps and lower health care costs. They cautioned that reducing federal support for the ACA could shift greater financial and administrative responsibility to states while undermining access to health insurance