Week in Review

IN THE NEWS:

• The U.S. Department of Homeland Security (DHS) issued a rule permitting U.S. Citizenship and Immigration Services asylum officers to refer certain affirmative asylum applications directly to immigration judges without first conducting an interview. Previously, the agency interviewed every asylum applicant before deciding whether to grant, deny, or refer a case to the Executive Office for Immigration Review within the U.S. Department of Justice. Under the new rule, an asylum officer may skip that step for applicants who are barred from applying for asylum, barred from receiving a grant, or unlikely to merit a discretionary grant. DHS stated that the change is necessary to relieve a backlog of 1.4 million pending affirmative asylum cases and to identify applicants who pose national security or public safety risks more quickly. The agency estimates that over 400,000 pending cases could be affected. Critics contend that shifting cases to immigration courts, which already face a backlog of 3 million cases, will not resolve delays and could instead push more migrants toward detention and deportation.
• The U.S. Department of Education removed mentions of disparate impact regulations under Title VI of the Civil Rights Act of 1964, a federal law that prohibits discrimination based on race, color, or national origin in programs that receive federal funding. Disparate impact occurs when a policy harms people of one race, color, or national origin more than others even if it was not intended to discriminate. The Education Department argued that Title VI prohibits only intentional discrimination and that the removed regulations went beyond prohibiting intentional discrimination. The Education Department said that the changes align its regulations with President Donald J. Trump’s executive order that called on federal agencies to reduce the use of disparate-impact liability. Civil rights organizations argued that discrimination is not always obvious and that removing the regulations could allow schools to continue policies that disproportionately harm students because the Education Department would no longer investigate those policies.
• The U.S. Federal Communications Commission barred imports of new humanoid robots and power inverters, citing national security concerns. These inverters convert direct current electricity into alternating current electricity. The policy prohibits the importation of humanoid robots and power inverters manufactured in any foreign country. Experts argue, however, that the ban will primarily affect Chinese producers and that the prohibition on power inverters could have significant consequences for domestic appliances and data center development. Producers can apply for exemptions from the U.S. Department of Defense or the DHS.
• The Justice Department proposed a rule allowing immigration judges to impose civil money penalties on individuals who disrupt or obstruct immigration court proceedings. The proposal would establish procedures for determining when someone is in contempt and the amount of civil penalty to be paid. The Justice Department explained that Congress authorized immigration judges to impose these penalties in the Immigration and Nationality Act in 1996, but the authority has not been used because regulations establishing the process were not issued. The proposed penalties would apply to individuals involved in proceedings before an immigration judge, attorneys or accredited representatives, and witnesses.
• The U.S. Department of Agriculture (USDA) issued an interim rule clarifying how it determines whether farmland contains protected wetlands when deciding eligibility for certain USDA program benefits. The rule responds to a 2024 federal court decision that found that USDA failed to follow required procedures when issuing a rule on how to determine if a farm contained protected wetlands. USDA said that the rule explains when existing wetland determinations remain valid, when farmers can request a new review, and how farmers can appeal those decisions affecting their eligibility for the program benefits.
• The U.S. Court of Appeals for the D.C. Circuit upheld a rule issued by the U.S. Environmental Protection Agency, concluding that the rule does not conflict with the Clean Air Act. The court held that, under the Clean Air Act’s New Source Review program, companies can offset a project’s emissions increases with emissions decreases from the same project early in the review rather than waiting until later in the review process when the EPA calculates emissions changes across an entire facility. The court rejected environmental groups’ argument that this approach allows companies to evade New Source Review by including unrelated activities in a project to balance the project’s emissions impact. The court also denied environmental groups’ challenges to EPA’s policy of providing non-binding guidance that emissions-generating and emissions-reducing activities may be grouped together if they are “substantially related.”
• New York State finalized new rules requiring age restrictions and age verification for social media use. New York Governor Kathy Hochul and New York Attorney General Letitia James stated that the law under which the rules were issued, the Stop Addictive Feeds Exploitation for Kids Act, aims to prevent mental health, eating, and sleep disorders caused by algorithmic social media feeds and nighttime notifications. The final rules will go into effect on January 25, 2027, and will require minors to obtain parental consent to access algorithmic feeds that are associated with worse mental and physical health outcomes. Default social media feeds for minors will include only content from accounts they follow, and content will be presented in chronological order.
• A federal district court blocked Minnesota from enforcing its first-of-a-kind ban on prediction markets days before it was slated to take effect. Judge Katharine Menendez of the S. District Court for the District of Minnesota granted a preliminary injunction after concluding that the plaintiffs, which included the Justice Department, the Commodity Futures Trading Commission, Kalshi, and Polymarket US, were likely to succeed on their claim that federal law preempts state law. The law, embedded within a broader public safety bill, bars companies from operating prediction markets within the state by treating markets as a form of gambling.

WHAT WE’RE READING:

• In a recent report, the U.S. Government Accountability Office (GAO) examined how the U.S. Department of Energy Office of Isotope Research and Development and Production manages the nation’s supply of critical isotopes, which are used in medicine, research, manufacturing, and national security. GAO found that the Office of Isotope Research and Development and Production monitored isotope demand on a case-by-case basis but lacked a systematic process for assessing future needs and responding to shortages, which could leave customers dependent on suppliers in sensitive countries for some critical isotopes. GAO recommended that the Energy Department develop a systematic process for assessing isotope demand, establish an advisory committee to assess isotope supply and demand, reduce risks to isotope production, and better communicate potential shortages to customers.
• In a recent New America report, Maresa Strano, deputy director at the Political Reform Program at New America, and Oscar Pocasangre, senior analyst at the Political Reform Program at New America, argued that the cost of statewide ballot initiatives should be evaluated relative to their democratic value rather than in isolation. Strano and Pocasangre analyzed a decade of campaign finance data and found that although initiative campaigns can be expensive, particularly in large states, their costs are often comparable to lobbying and candidate campaigns. They explained that money influences the initiative process most heavily at the ballot-access stage but does not reliably determine election outcomes, since nearly a third of initiatives that outspent their opposition still failed. Strano and Pocasangre recommended reforms that lower barriers to ballot participation, increase indirect initiative pathways, and avoid constitutional amendment campaigns when possible.
• In a recent working paper, Louise Bernard, a data scientist at the Centre for Net Zero, Andrew Schein, the director of trials and analysis at the Centre, and Robert Metcalfe, a professor at Columbia University and chief economist at the Centre, found that encouraging electricity demand flexibility by using financial incentives led to sustained decreases in electricity use during peak demand events. Bernard, Schein, and Metcalfe analyzed a nationwide policy experiment that randomly selected electricity consumers and compensated them for reduced electricity usage during events likely to cause blackouts or require high-emissions backup generation. Bernard, Schein, and Metcalfe explained that demand flexibility becomes more valuable as peak demand grows and volatility increases, making incentive programs more effective and worthwhile when the strain on the grid is higher. Bernard, Schein, and Metcalfe also found that the use of heat pumps and solar and battery storage increased flexibility by 100 percent.

EDITOR’S CHOICE:

• In an essay in The Regulatory Review, Shoba Sivaprasad Wadhia, a clinical law professor at Pennsylvania State University Dickinson Law, argued that the Trump Administration improperly used administrative law to restrict asylum eligibility. Wadhia explained that the Administration issued an interim final rule prohibiting migrants who entered the United States at locations other than official ports of entry from applying for asylum. She argued that the Administration improperly relied on exceptions to the Administrative Procedure Act to bypass public notice and comment before the rule took effect. Wadhia urged the Administration to withdraw the rule and follow existing immigration law and administrative procedures when changing asylum regulations.