Earlier this summer, President Biden delivered on a highly anticipated campaign promise to crack down on corporate monopolies and boost competition across the economy. In a comprehensive executive order, President Biden pledged to take a “whole-of-government” approach to rigorously enforcing the nation’s antitrust laws, documenting how rising corporate consolidation harms consumers and small businesses in technology, health care, agriculture, and more. He also suggested specific actions that relevant federal departments and agencies could take to implement the order. In one example, President ..read more

In America, the people are sovereign and straightjacketed. Faced with a problem — passing, like a pandemic, or persistent, like poverty — they can call on their government to answer it. But, when they act, courts can tell them they’ve overstepped their Constitution’s grant of powers. Recently, several federal district courts, faced with a novel national eviction ban, have tried to assess if the people have erred. Two — in Georgia, and Louisiana — upheld the eviction order; three others — in Ohio, Tennessee, Texas — struck it down. Only one, though, reached the constitutional question ..read more

In America, the people are sovereign and straightjacketed. Faced with a problem — passing, like a pandemic, or persistent, like poverty — they can call on their government to answer it. But, when they act, courts can tell them they’ve overstepped their Constitution’s grant of powers. Recently, several federal district courts, faced with a novel national eviction ban, have tried to assess if the people have erred. Two — in Georgia, and Louisiana — upheld the eviction order; three others — in Ohio, Tennessee, Texas — struck it down. Only one, though, reached the constitutional question: in Terke ..read more

In 2018, the Centers for Medicare and Medicaid Services (CMS), a division of the Department of Health and Human Services (HHS), issued new guidance to states announcing the agency’s support for efforts to incorporate work requirements into state Medicaid plans.  Kentucky and Arkansas soon took up the agency’s offer and both submitted proposals that included work requirements.  The Secretary of HHS quickly approved the plans.  Recently, in Gresham v. Azar, the D.C. Circuit held that the Secretary’s approval of these projects was arbitrary and capricious, in violation of the Administrative Proce ..read more

The Au Pair Program is a Department of State exchange visitor program that involves three parties: au pairs who are foreign citizens between the ages of 18 and 26; 15 sponsor organizations, which are private placement agencies that must be officially designated and authorized by the State Department; and host families. Au pairs come to the United States to experience one to two years abroad, improve their English, and take care of children. Up until December, this program had been regulated solely by federal statutes and regulations. Recently, in Capron v. Office of the Attorney General of Mas ..read more

The Au Pair Program is a Department of State exchange visitor program that involves three parties: au pairs who are foreign citizens between the ages of 18 and 26; 15 sponsor organizations, which are private placement agencies that must be officially designated and authorized by the State Department; and host families. Au pairs come to the United States to experience one to two years abroad, improve their English, and take care of children. Up until December, this program had been regulated solely by federal statutes and regulations. Recently, in Capron v. Office of the Attorney General of Mas ..read more

For decades, “conscience clauses” in statutes governing health care have protected the rights of employees from acting against their religious and moral beliefs.  Critics of these provisions insist that there is a greater risk of discrimination against patients than discrimination against employees.  Recently, in New York v. Department of Human and Health Services, Judge Engelmayer penned a one-hundred-and-forty-seven-page opinion striking down a regulation attempting to expand such protections for health care employees. The regulation at issue would likely have further limited access to abort ..read more

The Trump Administration’s targeting of immigrants is no secret. Earlier this month, the Department of Justice (“DOJ”) “announced that in fiscal year 2019 (FY19), its U.S. Attorneys’ Offices prosecuted the highest number of immigration-related offenses” in the last twenty-five years and its Executive Office for Immigration Review adjudicated 275,000 cases, the second highest number in EOIR history. Most recently, on October 22, 2019, the DOJ published a proposed rule titled “DNA-Sample Collection From Immigration Detainees.” Put simply, the rule would remove 28 CFR § 28.12(b)(4), which give ..read more

The impact of the Supreme Court’s interpretation of “sex” in R.G. & G.R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission this Term may not be limited to enforcement of the Civil Rights Act. In fact, many federal statutes, including the 2010 Affordable Care Act (ACA), have adopted identical language. Recently in Franciscan Alliance, Inc. v. Azar, a judge in the United States District Court for the Northern District of Texas vacated a rule promulgated under the ACA prohibiting healthcare providers from discriminating on the basis of gender identity and termination of pr ..read more

In September, the war against stronger vehicle emission standards got real.  We went from two and a half years of escalating rhetoric between the Trump administration and California to dramatic federal action with potentially profound consequences.  The National Highway Traffic Safety Administration (“NHTSA”) and the U.S. Environmental Protection Agency (“EPA”) jointly issued new rules to prevent California from enforcing its tailpipe emissions standards for greenhouse gases.  In one fell swoop, the agencies’ action threatens to upend ambitious, forward-looking requirements – intended to addre ..read more