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So, what does any of this have to do with consumers? Among those other statutes are key provisions for consumer financial protection. Justice Alito’s list contains federal laws barring discrimination in housing sales, housing rentals, mortgage assistance, brokerage services, student loan programs, workforce development, equal pay, public health services, public assistance, and much more. In all these areas, discrimination based on sexual orientation now appears, quite clearly, to violate federal law.
And why would the Trump administration specifically select Clayton, and not someone else from their gallery of rogues? The “distinguished New York lawyer” phrase answers a lot of these questions. That honorific carries a specific meaning: He’s an elite Wall Street attorney who bounces seamlessly back and forth between government and defending corporations—a man with all the right contacts and relationships. All roads for such distinguished New York lawyers lead to the SDNY, a capstone for decades of service. That was true of Mary Jo White, U.S. Attorney for SDNY from 1993 to 2002, and later, chair of the SEC. In between she ran the litigation department at Debevoise & Plimpton, a white shoe law firm, to which she returned after her SEC tenure ended. She was last seen defending the Sackler family, whose company created OxyContin, from opioid lawsuits. Clayton has essentially the same trajectory. It’s weird to see him framed in the press as a “low-profile regulator” helplessly caught in a “political minefield.” He was a career climber at Sullivan & Cromwell, another big-time corporate law firm, representing mostly big banks, like Goldman Sachs and Deutsche Bank (both of which have ties to the Trump administration and Trump personally; Deutsche was Trump’s personal banker). He asked Trump and Barr for the SDNY job specifically, saying it would bring him closer to home. (The SEC is based in Washington.) In reality, SDNY was the missing item on his résumé, the thing that will burnish his stature and raise his billable hour rate in the private sector. At the SEC, Clayton has been a reliable voice for Wall Street deregulation, with a notable new win: The Volcker rule prohibiting banks from risky gambling with depositor money was gutted Thursday, and Clayton had a hand in that. Were he to become the top federal prosecutor in Manhattan, the leaders of the nation’s financial industry could breathe easy. Clayton was outside counsel to Goldman during the odious 1MDB scandal, when the vampire squid fleeced the country of Malaysia and facilitated the wholesale theft of billions of dollars. At SDNY, Clayton could be trusted to do little on this issue or anything like it.
It is the greatest magic trick in modern history. A string of fintech and crypto companies across the globe collapse and seemingly lose track of billions of dollars, but the blinding glow of technology continues to mesmerize everyone to the risks. The contrast in the financial services industry is stark. Banks are not permitted to budge without extensive regulatory approvals and oversight, but financial technology companies can introduce new forms of money and payments systems with far less regulatory review. It raises a fundamental question: Should the United States continue to regulate financial services based on what companies call themselves rather than what they actually do? In short, even before considering the growing impact of fintech companies, policymakers now devote the vast majority of their regulatory resources to overseeing the safety and soundness of entities that make a little more than a third of the country’s financial services system.
When President Trump’s administration proposed a rule last summer seeking to roll back non-discrimination protections for transgender people in health care, 155,966 public comments came through in response. Yet the final product released this month is nearly identical to the original — just as insidious and now, according to the precedent set by the Supreme Court last week, just as likely illegal. The Department of Health and Human Services regulation is part of a pattern: This White House has made it its mission to restrict transgender rights in areas from housing to education to, now, health. The Affordable Care Act, like many other laws, has a provision preventing discrimination on the basis of sex. The last administration interpreted that to include gender identity, and now this administration is reinterpreting it to refer to biological sex at birth alone — despite a majority of justices just having come to precisely the opposite conclusion in an employment discrimination provision in the 1964 Civil Rights Act. Yanking away access to health care for a vulnerable population would be cruel at any moment. Doing it amid a pandemic is especially dangerous.
The Trump administration doesn't have the authority to allow health providers to discriminate against LGBTQ patients, according to a lawsuit filed by advocacy groups seeking to block a new rule from taking effect. The lawsuit was filed in U.S. District Court for the District of Columbia, and the plaintiffs include the Whitman-Walker Clinic and the Los Angeles LGBT Center, along with individual LGBTQ physicians, provider groups and LGBTQ organizations.
Nevada’s governor said on Monday his state plans to adopt California’s zero emission vehicle (ZEV) mandate and tailpipe emissions rules even as the Trump administration has moved to strip states of the right to implement such requirements. Nevada will be the latest state to adopt California’s low-and zero-emission vehicle rules following similar announcements by Washington in March and Minnesota and New Mexico in September. Governor Steve Sisolak said the “new regulations will not require anyone to give up their current vehicle or choose one that does not work for their lifestyle or business needs.” California’s vehicle emissions rules, which are more stringent than rules advocated by the Environmental Protection Agency under President Donald Trump, are currently followed by states accounting for more than 40% of U.S. vehicle sales.
The Supreme Court on Monday preserved an important tool used by securities regulators to recoup ill-gotten gains in fraud cases. By an 8-1 vote, the justices ruled that the Securities and Exchange Commission can seek to recover the money through a process called disgorgement. Last year, the SEC obtained $3.2 billion in repayment of profits from people who have been found to violate securities law. “The Court holds today that a disgorgement award that does not exceed a wrongdoer’s net profits and is awarded for victims is equitable relief permissible” under federal law, Justice Sonia Sotomayor wrote for the court.
A coalition of environmental groups sued the Trump administration on Monday, challenging a rollback of protections for the nation’s waterways originally put in place under the Obama administration. The Navigable Waters Protection Rule finalized by the Environmental Protection Agency (EPA) in January limits federal protections for smaller bodies of water, a move critics say risks contamination of larger ones used for drinking water. The suit, filed by Earthjustice on behalf of Sierra Club, other environmental groups, and a number of tribes, argued the Trump administration erred in removing protections for wetlands and streams that result from rainfall.
A coalition of more than 20 health, environmental and racial justice organizations are suing the Environmental Protection Agency (EPA) over a finding that undermines the legal justification behind a regulation for the emission of mercury and other toxins from power plants. The groups sued the EPA on Friday over the finding that it is not "appropriate and necessary" to regulate certain power plant emissions, which was based on changes to an analysis that justified its Mercury and Air Toxics Standards (MATS) rule. The Trump EPA did not make any changes to the power plant regulations themselves but did change the cost-benefit analysis behind them to make it appear that the Obama-era rule’s costs outweighed its benefits.
The Trump administration’s end-run around Congress in failing to obey the Administrative Procedure Act. “The dispute before the Court is not whether DHS may rescind DACA,” Chief Justice John G. Roberts Jr. wrote for the Court. It could. “The dispute is instead primarily about the procedure the agency followed in doing so.” In short, there are rules to follow, when making rules. As Justice Roberts put it, the key elements for the DACA case were that agencies must engage in “reasoned decision-making,” that agency actions cannot be “arbitrary or capricious.” That is true when making new policy, as well as when setting it aside — and the DHS decision did not clear this bar. Underwhelmed by White House arguments against DACA, DHS’s Duke simply repeated DOJ’s new position that DACA was illegal, “period,” said the Court. That is, Duke called it illegal without offering a policy justification or considering what alternatives there might be to fully rescinding the program.
Under a normal administration, the Department of Health and Human Services would immediately reverse its recently announced rule rescinding protections for LGBTQ people in health care, knowing that it would be likely to be overturned by the courts. The Education Department, which threw out Obama-era protections for transgender students in education in 2017, would also reverse course. (The Department of Housing and Urban Development also just announced a rule banning trans people from single-sex homeless shelters.) All these policies rely on what the Court just ruled is a misinterpretation of the phrase “because of sex.” Nevertheless, LGBTQ-rights advocates expect to have to go to court to force the Trump administration to recognize the obvious legal ramifications of Bostock.
Federal agencies that put President Donald Trump’s planned regulatory agenda on the back burner this spring to respond to the coronavirus pandemic are catching up now, as well as determining which of their virus-related changes to keep. The year had been shaping up to be Trump’s most regulatory yet, even when accounting for rollbacks of major Obama-era water and auto emissions rules, according to researchers who analyzed federal agencies’ 2020 rulemaking agendas published last fall. The White House has reviewed 75 significant final rules since the start of the year. Proposals now under review by the White House Office of Management and Budget include a Department of Homeland Security rule to prevent the spouses of highly skilled foreign workers from receiving employment authorization, an Environmental Protection Agency rule to revise air quality standards, and a Health and Human Services rule to update the definition of “healthy” foods.
With a spate of stories about dangerous pandemic warehouse working conditions and new revelations of how it fires workplace organizers, Amazon is trying to put on its best public face. Last week, it announced that it would stop selling facial recognition software to police forces across the country—for a year. That pledge may have been put out to distract from a potentially much bigger story hidden in a remarkable patent that has been recently granted to the company. The patent, for a form of blockchain ledgering technology, will allow Amazon to oversee the collection of an unprecedented amount of data about the business operations of its sellers, including their entire supply chain. In essence, the patent fulfills Amazon’s plans to create a private regulatory regime, where it uses proprietary information to create a “certification” bureaucracy: a private, for-profit alternative to the Food and Drug Administration, the Environmental Protection Agency, and the Federal Trade Commission. Unlike governmental agencies, however, it will have no public oversight, and can use its certifying power to squeeze sellers and consolidate control. Brands and companies that use Amazon’s technology would have to list the manufacturers, couriers, and distributors they use. Those entities will have to corroborate that they indeed sell to the brand. Amazon will know where and when every single sweater, earplug, and frying pan sold on its platform was made, and by whom. The patent states: To certify an item, a verifiable record for the item indicating, for example, what materials were used to make the item, where the item was made, who made the item, when the item was made, and so forth, is needed.
FCC Chairman Ajit Pai tweeted that the outage was “unacceptable” and that he’s “demanding answers,” vowing to launch an investigation into the matter. In some ways, it’s too little, too late, and that’s partly a result of Pai’s generally hands-off approach to regulation that entails asking questions later and giving slaps on the wrists after companies trip up. That can be seen in decisions such as repealing net neutrality — the concept of treating all web traffic equally — and, alongside Makan Delrahim, the Justice Department’s chief antitrust enforcer, approving T-Mobile’s takeover of Sprint with difficult-to-enforce concessions. It’s an administration that has prioritized the possibilities of faster 5G networks over the potential harm of market consolidation. It’s also been more concerned about content on the internet than the behavior of internet providers themselves, even though the whole of the U.S. economy is virtually dependent on their services
The Supreme Court blocked the Trump administration Thursday from ending a popular program that allows nearly 700,000 young, undocumented immigrants to live and work in the United States without fear of deportation. Chief Justice John Roberts, who wrote the opinion, called the Department of Homeland Security's action "arbitrary and capricious." But he said it was not a violation of the Constitution's equal protection clause, which would have more fully protected DACA from a new attack. The ruling was 5-4, with the court's four liberal justices agreeing and the four more conservative justices in dissent on the main thrust of Roberts' ruling. "We do not decide whether DACA or its rescission are sound policies," Roberts said. "We address only whether the agency complied with the procedural requirement that it provide a reasoned explanation for its action. Here the agency failed to consider the conspicuous issues of whether to retain forbearance and what if anything to do about the hardship to DACA recipients."
With the crises of the pandemic, the recession and the nationwide protests, it has been easy to overlook one of the chief battlegrounds of the first three years of the Trump administration: regulation. For three years the administration has attempted (often unsuccessfully) to repeal some of the most impactful regulations issued by the Obama administration. Despite the crises, these attempts have continued full throttle in 2020. Just a few weeks ago, the National Park Service reduced restrictions on hunting in Alaska. The main reason that this continued deregulatory push has not garnered media attention is that there have been more newsworthy events dominating the political media landscape. One reason it should get more attention is that the eventual fate of any deregulatory initiative issued by the Trump administration from this point onwards (and possibly many deregulatory actions that have already taken place) will be determined by the November elections. A potential Biden administration will obviously reverse direction in a wide variety of policy realms from the Trump administration. But few of the potential changes in a new presidency will occur with as much certainty and as much ease as the reversal of regulations issued by the Trump administration in the last seven or eight months of 2020. There are several reasons for this. There is much at stake in the November elections. One of the clearest stakes is the fate of the attempts to loosen protections of workers, public health and the environment that the Trump administration has pursued. Typically, reversing regulations is hard but the sloppiness of the Trump administration will give a new administration many relatively easy-to-reverse targets.
Democrats on Tuesday scrutinized President Trump’s pick to lead the Consumer Product Safety Commission (CPSC) over actions she has taken on chemical issues during her work in the Trump administration. Several Democratic senators questioned and criticized Nancy Beck, who has served in a top role at the Environmental Protection Agency’s (EPA) Office of Chemical Safety and Pollution Prevention, on decisions she made at the agency and during a subsequent White House detail. Sen. Tom Udall (D-N.M.) focused on the agency’s regulation of methylene chloride, a chemical used in areas such as paint stripping and pharmaceutical manufacturing that has been linked to cancer. Udall questioned why senators should trust Beck, and referenced the story of a woman named Wendy Hartley, whose 21-year-old son died after using the chemical.
Pressure is growing in Congress for at least modest changes in how federal regulators approve new passenger planes after two deadly crashes involving the Boeing 737 Max. On Tuesday, two key senators on transportation issues proposed several changes that would increase Federal Aviation Administration’s direct role in the aircraft-certification process. Their legislation would not end a decades-old practice in which the FAA relies on aircraft manufacturers’ own employees to certify the safety of systems on their planes. But it would require the FAA to select the people who do the safety work instead of letting the manufacturers pick them.
In the early weeks of the coronavirus pandemic, the rise of Amazon as Americans had their goods delivered, and the ascent of other tech platforms as communications engines led some to say that the “Techlash” against these giants had ended. This bank shot prediction seem premised on the fact that inadequate state capacity to provide basic services demanded almost a merger of Big Tech with government. The entrenchment of tech platforms inside government would insulate the industry from antitrust or regulatory charges, or so the theory had it; attacking Big Tech would be akin to destroying the public sector from within. The problem with this argument is that Big Tech has faltered just as badly as any other institution during the crisis. Amazon can’t get its deliveries out on time, and that vaunted Google/Apple joint contact-tracing app project doesn’t really work and can be accomplished much more efficiently with good old-fashioned shoe leather. But even more worrying for Big Tech, as investigations and cases mount, is that their defenses are increasingly absurd and lacking in credibility. The platforms can throw money at building a fortress of protection around themselves, but you really can learn something about them by who they associate with.
After three and a half years of methodically chipping away at the rights and dignity of asylum seekers, the Trump Administration has achieved its coup de grâce. Last week, the Departments of Justice and Homeland Security issued draft regulations that could effectively eradicate asylum law as we know it. The 161-paged document impacts nearly 900,000 individuals with pending asylum applications and countless others who may seek protection in the United States from persecution or torture they face in their home countries. The regulations systematically dismantle nearly every aspect of our nation’s asylum laws.
The National Black Environmental Justice Network (NBEJN), which aims to fight environmental inequality and racism, is relaunching amid the disproportionate impact that the coronavirus has had on African Americans. The NBEJN will meet with black organizations from across the country in an attempt to come up with an environmental justice agenda for black America, Texas Southern University professor Robert Bullard said during a press call on Monday. The agenda will aim to tackle environmental protections, climate, health care, policing and criminal justice, economic development and clean energy, among other areas.
Big tech companies are dialing up the pressure on Congress to limit police use of facial recognition software, amid resurgent efforts in Washington following the nationwide protests over the killing of George Floyd. But the latest pledges by Microsoft, Amazon and IBM haven't defused civil rights advocates' concerns about tech companies dealing potential surveillance tools to governments. And they’re stirring suspicions among lawmakers that industry giants are trying to dictate the terms of its regulations to Washington. The three big companies drew headlines this week by promising either to temporarily halt sales of their face-scanning software to law enforcement agencies, or in IBM’s case, to shutter that part of its business. The companies also urged Congress to step in and place guardrails on the use of facial recognition, an effort that stalled in the Capitol last fall and has until recently remained largely stymied during this year’s pandemic. While the announcements are at least partially symbolic — Microsoft says it already wasn't selling those tools to police departments — the calls for congressional action mark an increasingly offensive posture for an industry that has faced heat from its own employees for dealing out tools that critics say facilitate mass surveillance and racial profiling by cops.
U.S. auto safety regulators will unveil on Monday a voluntary effort to collect and make available nationwide data on existing autonomous vehicle testing. U.S. states have a variety of regulations governing self-driving testing and data disclosure and there is currently no centralized listing of all automated vehicle testing. California, for example, requires public disclosure of all crashes involving self-driving vehicles, while other states do not. The National Highway Traffic Safety Administration is unveiling the Automated Vehicle Transparency and Engagement for Safe Testing, or AV TEST, Initiative, to provide "an online, public-facing platform for sharing automated driving system on-road testing activities." With many opinion polls showing deep skepticism among Americans about self-driving cars, the effort aims to boost public awareness. NHTSA plans "online mapping tools" that will eventually show testing locations and activity data.
Health advocates representing American hospitals, medical groups, insurers and civil rights associations condemned the Trump administration on Saturday for rolling back protections for transgender patients, and for doing so amid a global pandemic. The new rule, long sought by conservatives and the religious right, narrows the legal definition of sex discrimination in the Affordable Care Act so that it omits protection for transgender people. It also opens the door for health care providers to refuse to treat patients who have had abortions. The move is part of a broad set of policy changes that weaken safeguards for transgender people across multiple sectors, including education, employment and housing. The changes to the Affordable Care Act, often referred to as Obamacare, were proposed last year.
Regulating tech companies should have nothing to do with Trump's personal interests, of course, but instead support our democracy and citizens. Yes, technology has been of great benefit to the public, for instance aiding the protests by Black Lives Matter and allies. But tech companies must not be allowed to privately design the information highways that manipulate what we think, believe, and feel. We need oversight of the algorithms that influence how information reaches us via social media and the internet. These algorithms are the real mechanisms of power that affect how information flows, targets, tracks, and impacts our behavior. They determine far more than our experiences on social media; they are the engines behind decisions made around bank loans, insurance, access to housing, even how we are policed. We need to be involved in vetting, if not designing, these algorithms because we know what underlies the choices of tech companies: like other major corporations, it isn't democracy, it is their bottom-lines.