Overnight Regulation: Justices refuse to hear Trump DACA challenge | WH report shows benefits of regs | Court dismisses challenge to Trump's '2-for-1' regulation order

Overnight Regulation: Justices refuse to hear Trump DACA challenge | WH report shows benefits of regs | Court dismisses challenge to Trump's '2-for-1' regulation order
© Greg Nash

Welcome to Overnight Regulation, your daily rundown of news from the federal agencies, Capitol Hill, the courts and beyond. It's Monday evening, and both the House and Senate are in session with the debate over guns dominating Washington. 

 

THE BIG STORY: The Supreme Court on Monday refused to hear the Trump administration's challenge to a lower court ruling temporarily blocking it from winding down the Obama-era Deferred Action for Childhood Arrivals (DACA) program.

The decision delivers a blow to the Trump administration, which argues that DACA is unconstitutional. It also could ease some pressure on Congress to quickly come up with a legislative solution, however, since it means the 9th Circuit Court of Appeals will continue to review the case.

The decision comes just a week before a March 5 deadline set by President TrumpDonald John TrumpCNN's Camerota clashes with Trump's immigration head over president's tweet LA Times editorial board labels Trump 'Bigot-in-Chief' Trump complains of 'fake polls' after surveys show him trailing multiple Democratic candidates MORE for Congress to enact legislation to replace the program established by former President Obama. It allows immigrants who entered the country illegally as children to work and go to school in the United States.

The court denied the government's request that it hear the case without prejudice.

"It is assumed that the court of appeals will proceed expeditiously to decide this case," the court said.

The Supreme Court could still agree to hear the case after it is heard by the lower appeals court.

The Hill's Lydia Wheeler and Rafael Bernal have more on the decision here.

 

Reaction...

The White House blasted DACA, saying it benefits "illegal immigrants en masse" in response to the Supreme Court decision.

"The DACA program -- which provides work permits and myriad government benefits to illegal immigrants en masse -- is clearly unlawful. The district judge's decision unilaterally to re-impose a program that Congress had explicitly and repeatedly rejected is a usurpation of legislative authority," deputy White House press secretary Raj Shah said in a statement on Monday.

More from The Hill's Julia Manchester here.

 

Democrats, meanwhile, hailed the decision, with House Minority Leader Nancy PelosiNancy PelosiNYT's Friedman repeatedly says 's---hole' in tirade against Trump on CNN GOP lawmaker: Trump's tweets 'obviously not racist' On the USMCA, Pelosi can't take yes for an answer MORE (D-Calif.) saying is showed that Trump's decision to rescind DAC was "legally questionable."

"Today's Supreme Court action shows that rescinding DACA was not only legally questionable, but also unjust and cruel," Pelosi said in a statement.

She stressed that Congress needs to find a legislative solution for the "Dreamers" that DACA shielded from deportation.

More from Luis Sanchez here.

 

ON TAP FOR TUESDAY

The House Transportation and Infrastructure Subcommittee on Aviation hears from regulators on "the state of aviation safety."

New Federal Reserve Chairman Jerome Powell testifies before the House Financial Services Committee.

The House Small Business Committee holds a hearing on how "red tape affects community banks and credit unions."

The House Small Business Subcommittee on Economic Growth, Tax, and Capital Access holds a hearing titled "Occupational Hazards: How Excessive Licensing Hurts Small Business."

 

REG ROUNDUP

Administration: The White House on Friday quietly released its annual draft report to Congress on the costs and benefits of regulations and the results show that major rulemakings over the past decade have yielded great benefits.

The findings are at odds with an administration that's pushing federal agencies to cut rules and ease excessive regulatory burdens it says were imposed by the previous administration.

The Trump administration report says that from fiscal 2007 through 2016 the annual economic benefits of major rulemakings reviewed by the White House Office of Management and Budget (OMB) were estimated to be between $287 billion and $911 billion.

The report found that from Oct. 1, 2006, to Sept. 30, 2016, the annual benefits of regulations outweighed the annual costs, which were estimated to be between $78 billion and $115 billion in 2015 dollars.

The results, regulatory advocates say, seem to undercut the president's continued push for a policy requesting that two regulations be removed for every new rule proposed.

Sofie Miller, a senior policy analyst at George Washington University's Regulatory Studies Center, said the report is not a tally of the costs and benefits of rules issued by the Trump administration, but rather a window into the regulatory activity undertaken by the Obama administration.

"We are issuing this report after a change in administration, and therefore would like to clarify that OMB's reporting of the results of these [regulatory impact analyses] does not imply an endorsement by the current Administration of all of the assumptions made and analyses conducted at the time these regulations were finalized," OMB said in the report.

Lydia Wheeler has the breakdown here.

 

Courts: A federal district court judge on Monday dismissed a challenge to President Trump's executive order directing federal agency heads to eliminate two rules for every new rule proposed.

U.S. District Court for the District of Columbia Judge Randolph Moss said Public Citizen, the Natural Resources Defense Council and Communication Workers of America, AFL-CIO failed to prove their members will be harmed by the president's orders, which is a burden of proof required to bring a lawsuit.

The public interest groups argued they had "organizational standing" because the order has a chilling effect on their respective missions to encourage agencies to adopt regulations designed to protect public health and safety, the environment and workers' rights.

The groups argued in court documents that Trump's action forces them to evaluate whether losing two rules is worth the benefit of a new one before lobbying for an agency action.

But Moss said the groups did not show that this concern has or will keep them from pursuing new protections.

Read more from Lydia Wheeler.

 

Guns: Senate Minority Leader Charles SchumerCharles (Chuck) Ellis SchumerNYT: Don't make Acosta a political martyr Charities say they never received donations touted by Jeffrey Epstein: report Schumer to donate Epstein campaign contributions to groups fighting sexual violence MORE (D-N.Y.) said Monday that it would be an "abject failure" if Congress can only pass legislation that bolsters reporting to the background check system in response to the deadly shooting at a Florida high school earlier this month.

"If all Congress does in response to the Parkland shooting is to pass the Fix NICS [National Instant Criminal Background Check System] bill, it would be an abject failure and a dereliction of our duty," Schumer said, adding that Democrats will push for universal background checks.

He said Democrats hope "Republican leaders will help pass real legislation that makes a difference, rather than [National Rifle Association]-backed bills that make Republicans feel better without meaningfully addressing the issue of gun safety."

The Fix NICS legislation, spearheaded by Sens. John CornynJohn CornynGOP struggles to find backup plan for avoiding debt default Trump nominees meet fiercest opposition from Warren, Sanders, Gillibrand On The Money: Mnuchin warns US could hit debt limit in early September | Acosta out as Labor chief | Trump pitches trade deal in Wisconsin | FTC reportedly settles with Facebook for B fine MORE (R-Texas) and Chris MurphyChristopher (Chris) Scott MurphyLawmakers join Nats Park fundraiser for DC kids charity Democrats look to demonize GOP leader Meet the key Senate player in GOP fight over Saudi Arabia MORE (D-Conn.), enforces current law by ensuring that states and agencies provide criminal records to the NICS, while penalizing those that don't.

Jordain Carney has more here.

 

More on the gun debate...

Support for "red flag" laws intended to keep guns from criminals and the mentally ill is growing following the mass murder of 17 students and faculty members at a Florida high school, reports The Hill's Reid Wilson

 

Reps. David CicillineDavid Nicola CicillineSocial media summit highlights partisan approaches on tech FTC settles with Facebook for billion fine: report Democrats struggle to quell infighting MORE (D-R.I.) and Ted DeutchTheodore (Ted) Eliot DeutchBipartisan group of lawmakers invites colleagues to tour DC's Holocaust museum GOP senator presses Instagram, Facebook over alleged bias in content recommendations Overnight Defense: Senate rejects effort to restrict Trump on Iran | Democrats at debate vow to shore up NATO | Senate confirms chief of Space Command MORE (D-Fla.) formally introduced a bill on Monday to ban assault weapons.

The legislation would make it "unlawful for a person to import, sell, manufacture, transfer, or possess, in or affecting interstate or foreign commerce, a semiautomatic assault weapon."

Jacqueline Thomsen has the story.

 

Water: The Supreme Court declined Monday to hear a case challenging an Environmental Protection Agency (EPA) rule that allows governments to transfer water between water bodies with few restrictions.

The decision leaves in place a ruling from the Court of Appeals for the 2nd Circuit, which last year upheld the 2008 rule.

The Clean Water Act usually prohibits dumping pollutants into waterways regulated by the federal government. But under the so-called Water Transfers Rule, cities and states can move water between lakes, rivers and other water bodies without getting a discharge permit.

Environmentalists and some Democratic states sued to stop the rule, saying it improperly permits dirtier water to enter cleaner waterways. The initial judge on the case overturned the rule, but the 2nd Circuit Court disagreed on appeal, leading to the Supreme Court request.

Timothy Cama explains here.

 

Environment: A record number of anti-secrecy lawsuits were filed in 2017 against the Environmental Protection Agency (EPA) under Administrator Scott PruittEdward (Scott) Scott PruittSenior Trump administration official to leave post next week For Big Pharma, the revolving door keeps spinning Acosta defends Epstein deal, bucking calls for resignation MORE, Politico reported Monday.

Forty-six open records lawsuits were filed against the EPA in 2017, according to data from the FOIA Project at the Transactional Records Access Clearinghouse at Syracuse University, with a total of 55 open records lawsuits filed against the agency since President Trump took office.

The next busiest year on record was 2015, when 22 lawsuits were filed after the Obama EPA finalized major rules on wetlands protection and power plant emissions. By comparison, former President George W. Bush's EPA faced only 57 Freedom of Information Act (FOIA) lawsuits during his entire eight-year presidency.

Read Miranda Green's story here.

 

Tech: Net neutrality activists are stepping up their pressure on lawmakers this week to support a bill that would vacate the Federal Communications Commission's (FCC) decision to repeal its net neutrality rules.

On Tuesday, supporters are holding a net neutrality day of action to push for one more Republican senator to support the bill and become the tie-breaking vote needed to send it to the House.

The bill would use a legislative tool called the Congressional Review Act (CRA) to rollback the FCC repeal. The repeal order was published in the Federal Register last week, starting a countdown of 60 days for Democrats to find the tie-breaking vote on the bill. It currently has 50 supporters in the Senate, with Sen. Susan CollinsSusan Margaret CollinsRepublicans make U-turn on health care Children urge Congress to renew funds for diabetes research Justice Democrats issues 3 new endorsements for progressive candidates MORE (Maine) as the sole Republican in favor of it.

Evan Greer, an organizer with the group Fight for the Future, said that the goal of Tuesday's demonstrations is to show lawmakers the popular support that the FCC's Obama-era rules enjoy.

Harper Neidig has more here

 

Tech: Federal Communications Commission (FCC) Chairman Ajit Pai on Monday said that he wants to auction off more spectrum, the radio bands that telecommunications companies use for their networks.

Speaking at the Mobile World Congress event in Barcelona, Pai said that he would like the FCC to hold an auction in November for the 28 GHz bands used for 5G wireless broadband. He aims to follow up with another spectrum auction for 24 GHz bands.

But Pai noted that his plans depend on Congress passing legislation by May 13 addressing how the auction handles payments. Companies interested in bidding must provide some money upfront to prove that they have the resources to deploy spectrum bands. Previously, this money was held by banks, but private financial institutions are now reluctant to take part.

To address this issue, Congress has introduced legislation, the Repack Airwaves Yielding Better Access for Users of Modern Services Act (RAY BAUM's Act), that would allow the FCC to store these payments with the Treasury. The bill passed the House Energy and Commerce Committee earlier this month.

Ali Breland has the story here.

 

Energy: A number of prominent farming groups are urging President Trump to maintain the Environmental Protection Agency's (EPA) Renewable Fuel Standard (RFS) for vehicles, in hopes that it will continue to prop up ethanol and drive money into the struggling agriculture industry.

In a letter written to the president Monday, the heads of six national farming groups acknowledged that "times are tough" and may get worse for farmers. The group pointed to the RFS, established in 2005 under President George W. Bush, as the "strong engine driving the rural economy."

The RFS is a transportation fuel requirement that orders all fuel sold in the U.S. to maintain a certain level of renewables.

Earlier this week it was reported that Trump would be meeting with various agency heads to discuss possible changes to the biofuel mandate.

Read Miranda Green's report.

 

Health care: State lawmakers in Iowa are moving to allow the Iowa Farm Bureau Federation to offer health insurance plans that don't comply with ObamaCare protections.

Two bills moving through the state legislature aim to provide Farm Bureau members with plans that cost much less than plans that are currently available on Iowa's individual market.

But since the plans will be exempt from ObamaCare protections, people with pre-existing conditions could be charged more.

Iowa is only the latest state to look at circumventing ObamaCare regulations.

Nathaniel Weixel has more here.

 

Tech: A federal appeals court ruled on Monday that the Federal Trade Commission (FTC) can move forward with its lawsuit against AT&T over allegations the company deceptively slowed data for some of its customers.

The decision also affirms the FTC's authority to police internet service providers, an issue that had been in question amid the Federal Communications Commission's (FCC) repeal of its net neutrality rules. The FCC's net neutrality repeal handed oversight of internet service providers to the FTC, but critics said that would create an enforcement gap.

"I welcome the 9th Circuit's ruling as good news for consumers," Maureen Ohlhausen, the FTC's acting chairwoman, said in a statement. "It ensures that the FTC can and will continue to play its vital role in safeguarding consumer interests including privacy protection, as well as stopping anticompetitive market behavior."

Harper Neidig explains here.

 

Gay rights: A federal appeals court in New York City has ruled against the Trump Justice Department by determining that the 1964 Civil Rights Act bans discriminating against gay people in the workplace.

It's the first time the 1964 civil rights law has been applied to anti-gay discrimination in the workplace.

"We now hold that sexual orientation discrimination constitutes a form of discrimination 'because of . . . sex,' in violation of Title VII [of the Civil Rights Act of 1964]," the Court of Appeals for the 2nd Circuit said on Monday.

The case concerned a man, Donald Zarda, who claimed he was terminated from Altitude Express, Inc. because of his sexual orientation. Zarda's lawyers argued that Title VII of the civil rights law applies to gay people.

The Justice Department argued the law prohibited discrimination based on gender, but not on sexual orientation.

Julia Manchester has the details.

 

Courts: The Supreme Court on Monday returned to union fees in a potential landmark case that labor groups say could threaten the future of public-sector unions.

The court was split on the same issue back in 2016, so it could now be up to new Justice Neil Gorsuch to break a tie. Court watchers are expecting him to rule against the union fees, as his predecessor, the late Justice Antonin Scalia, had also been expected to do.  

But Gorsuch, who was the only member of the court to hear the issue for the first time, remained quiet during the hourlong arguments on Monday.

At issue are laws in Illinois and 22 other states that allow public-sector unions to collect a "fair-share fee" from employees for collective bargaining activities, regardless of whether those employees belong to the union.

Mark Janus, a child support specialist for the state of Illinois, argues that having to give up about $45 from each paycheck to the American Federation of State, County and Municipal Employees (AFSCME) Council 31 violates his First Amendment rights.

Lydia Wheeler has the details.

 

FROM THE HILL'S OPINION PAGES

FTC can play a critical role in making health care more affordable

FTC should focus on actual, not speculative, consumer harm

Should the government regulate artificial intelligence? It already is

'Too-big-to-fail' reform is laudable but unlikely

 

IN OTHER NEWS

US finalizes long-delayed 'quiet cars' rule, extending deadline -- Reuters

Want to buy a luxury hotel in the US? Try China's insurance regulator -- The Wall Street Journal

Visa to defend tourists' card fees at EU antitrust hearing -- Reuters

Supreme Court weighs Amex rules in antitrust enforcement test -- Bloomberg

Watchdog warns of gaps in US financial regulation -- Financial Times