Tag: regulation
My Baby Needed Special Formula From Europe. U.S. Trade Policy Made It Almost Unobtainable.
“My son was born with severe heartburn and cried constantly—and the baby formula on the shelves only caused him more pain. At the suggestion of our pediatrician, we turned to a European goat milk formula that we hoped could soothe my son’s stomach until he grew out of his condition. But recently our orders were canceled, thanks to the Food and Drug Administration (FDA).
America’s baby formulas are incredibly standardized. The FDA claims that that’s safer, but those regulations mean that most formulas have multiple ingredients that could be allergens or irritants. Milk-based formulas in the U.S. also have soy ingredients like soy oil, as well as palm oil. And most American formulas have higher than average levels of iron, which can cause constipation. While many European brands are similar to American ones, you can find brands there that don’t contain so many possible irritants to a child’s sensitive stomach. We used Nannycare, and my son found it much more tolerable than its stateside competitors.
It’s impossible to say for sure why my English supplier suddenly decided not to sell formulas to a buyer in the U.S. But the timing of the cancellation provides a clue: It happened shortly after the FDA blocked a large amount of European formula from being sold, declaring that they did not meet the agency’s standards.
We are far from the only family that relies on European baby formula. Yet the free flow of perfectly safe goods into the United States is still extremely restricted. The agency’s strict rules about how formulas can be made limit options for children with medical issues and leaves parents with products that can cause their little ones pain.
Worse yet, these regulations are more driven by bureaucratic and political interests than by science. These products, after all, have not caused a wave of problems for European babies.”
Impact of Supreme Court’s climate ruling spreads
“Fallout from the Supreme Court’s attack on federal climate regulations is spreading throughout the executive branch, creating legal uncertainty for rules on topics as far afield as abortion, immigration and even amateur auto racing.
Opponents of federal actions on pipelines, asbestos, nuclear waste, corporate disclosures and highway planning are also seizing on the logic of the court’s June 30 decision, which imposed sharp limits on the Environmental Protection Agency’s authority to regulate greenhouse gases.”
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“In their decision, the high court’s six conservative justices invoked what they called the “major questions” doctrine to declare that agencies such as EPA need explicit congressional approval before “asserting highly consequential power” over almost any policy area. But they did not offer a precise definition of what would cause a regulation to qualify as major — a question that agencies and lower courts may now need to spend years wrestling with.”
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““If anything’s ambiguous at all, you get people challenging on major questions grounds, and you have to go find out if Congress gave you an extra clear statement,” said Nathan Richardson, a law professor at the University of South Carolina. He called it a reversal of the long-standing tradition of courts deferring to agencies’ policy expertise. “It’s not deference, it’s anti-deference.””
California could transform how fast food workers are treated
https://www.vox.com/policy-and-politics/2022/8/15/23296481/fast-food-ab257-california-sectoral-labor-unions
Supreme Court Limits EPA’s Ability To Impose Costly Greenhouse Gas Emissions Cuts
“The U.S. Supreme Court ruled..in the West Virginia v. Environmental Protection Agency that it “is a major questions case.” As such, the Court ruled 6–3 that the Environmental Protection Agency (EPA) did not have clear authority from Congress to regulate the entire U.S. electric power production industry through exercising “unheralded power representing a transformative expansion of its regulatory authority in the vague language” in a rarely used section of the Clean Air Act. This decision will likely curtail future efforts by the Biden administration to significantly cut the emissions of carbon dioxide from fossil-fuel-burning power plants that contribute to man-made global warming.”
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“So what is the major questions doctrine? “The Supreme Court has declared that if an agency seeks to decide an issue of major national significance, its action must be supported by clear statutory authorization,” explained the Congressional Research Service in a recent analysis. Certainly, the huge costs imposed by new regulations that are not clearly authorized by Congress would seem to qualify as an issue of national significance. In fact, in his majority opinion, Chief Justice John Roberts notes, “EPA’s own modeling concluded that the rule would entail billions of dollars in compliance costs (to be paid in the form of higher energy prices), require the retirement of dozens of coal-fired plants, and eliminate tens of thousands of jobs across various sectors.””
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“In her dissent, Associate Justice Elena Kagan counters by pointing out the Obama administration’s EPA calculated that by 2030 the annual public health and climate benefits of proposed regulations under its Clean Power Plan would be between $34 to $54 billion while the costs would amount to $8.4 billion. While electricity would cost more, consumers would save $7 monthly on their electric bills due to increased energy efficiency. A 2016 study in the journal PLOS One similarly found that the health co-benefits outweighed the costs incurred from reducing carbon dioxide emissions.
Despite the fact that the benefits of costly and transformative regulations might outweigh their costs that still does not mean for the Court’s majority that their issuance is not a major question requiring clear direction from Congress before going forward.
“Capping carbon dioxide emissions at a level that will force a nationwide transition away from the use of coal to generate electricity may be a sensible ‘solution to the crisis of the day,'” concludes Chief Justice Roberts. “But it is not plausible that Congress gave EPA the authority to adopt on its own such a regulatory scheme in [the Clean Air Act]. A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body.””
San Francisco Legalizes ‘Missing Middle’ Housing in the Worst Way Possible
“There’s a clear lesson emerging from the first cities that have legalized “missing middle” housing. The more rules you lift on the construction of these two-, three-, and four-unit homes, the more you’ll actually see built.
San Francisco politicians have absorbed this information and are now using it for evil. On Tuesday, the San Francisco Board of Supervisors passed an ordinance theoretically legalizing fourplexes in the city’s lowest density neighborhoods, but only under conditions that will ensure almost none of this housing actually gets built.”
Why Didn’t a ‘Red Flag’ Law Prevent the Illinois Mass Shooting, and Would New Federal Rules Have Mattered?
“Gun controls that look sensible in theory frequently fail in practice, either because they are ill-suited to prevent mass shootings, do not apply, or were not enforced. That does not mean such laws have no effect on violent crime. But it does mean that Americans should be skeptical when politicians tout the lifesaving potential of a particular policy, especially when it also has the potential to deprive innocent people of their constitutional rights.
The New York Times notes that the 21-year-old man who prosecutors say admitted to murdering seven people and injuring dozens of others in Highland Park on Monday “was known to police” because of two incidents in 2019. In April 2019, Reuters reports, police visited his Highland Park home in response to a 911 caller who said he “had attempted suicide.” That September, police returned in response to “alleged threats ‘to kill everyone’ that he had directed at family members.”
During the second visit, police asked the young man if he was suicidal, which he denied. They “seized a collection of 16 knives, a dagger and a sword” that belonged to the 18-year-old’s father, which they later returned to him.
Police did not arrest the son because they lacked probable cause to believe he had committed a crime. “There were no complaints that were signed by any of the victims,” Chris Covelli, a sergeant with the Lake County Sheriff’s Office, told reporters yesterday. But Highland Park police reported the incident to the Illinois State Police, which took no action.
State police offered two explanations for that. First, the future mass murderer at that point did not have a firearm owners identification card (FOID), which is required to legally buy or own guns in Illinois, and had not applied for one. Second, Reuters reports, state police “said no relative or anyone else was willing ‘to move forward with a formal complaint’ or to provide ‘information on threats or mental health that would have allowed law enforcement to take additional action.'”
The state’s red flag law, which took effect at the beginning of 2019, authorizes police as well as family members to seek a “firearms restraining order” that bars the respondent from purchasing or possessing guns. But if the future killer’s relatives were uncooperative, collecting evidence to support a petition would have been difficult, since the case hinged on their account of his words and actions.
Like the other states with red flag laws, Illinois gives people who are concerned that someone poses a danger two options. They can obtain an “emergency” order, which is issued without a hearing or notice, if a judge decides there is “probable cause to believe that the respondent poses an immediate and present danger of causing personal injury to himself, herself, or another.” Such ex parte orders last up to two weeks, at which point the respondent actually gets a chance to respond.
Alternatively, or when an ex parte order is about to expire, a petitioner can seek a six-month order, which requires a hearing. The standard at that point is “clear and convincing evidence” that the respondent poses “a significant danger…in the near future.” If an order is issued, it can be renewed for another six months based on a showing that the respondent continues to pose a significant danger.
The evidence that a judge is required to consider includes “threats of violence or acts of violence by the respondent directed toward himself, herself, or another.” That certainly seems relevant in this case. But again, police would have had a hard time presenting such evidence without the family’s cooperation.
Three months after his second encounter with police, the alleged killer, then 19, obtained an FOID. Because he was younger than 21, he needed the written consent of a parent or guardian, which his father supplied. A lawyer representing the father told the Times “his client did not believe there was an issue” and “might not have understood what happened with the knife seizure because it did not happen in his house.”
If the father had recognized the threat his son posed, he presumably would not have supported the FOID application, which would have prevented the killer from legally buying guns until he turned 21—i.e., last September. But in that case, the father probably would have been willing to file or support a red flag petition.
The other requirements for an FOID largely track federal restrictions on gun ownership, which among other things disqualify people with certain kinds of criminal or psychiatric records. None of those disqualifications applied.
For the same reason, the alleged murderer passed background checks when he bought several guns, including the Smith & Wesson M&P 15 rifle that police say was used in the attack, in 2020 and 2021. According to Reuters, “police said the only offense detected…during background checks was for unlawful possession of tobacco in 2016.” There were “no mental health prohibiter reports.”
In retrospect, it is easy to say that state police made a disastrous mistake by failing to seek a red flag order. Based on documentation of the two police calls, they might have met the probable-cause requirement for an ex parte order. But presenting clear and convincing evidence of a continuing threat to justify a six-month order was another matter. If no one with relevant knowledge was willing to come forward, it is hard to see how police could have satisfied that standard. And even if they had, the order would have had to be repeatedly renewed to block the gun purchases, the last of which happened two years later.”
FDA Finally Admits It Caused the Baby Formula Shortage
“it’s the FDA’s unnecessary and protectionist rules that effectively ban foreign-made baby formula from being imported into the United States. On Wednesday, the agency announced plans to tweak those rules so foreign formula manufacturers can permanently import their goods into the U.S., giving American consumers greater choice in the marketplace and ensuring more robust supply chains.”
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” When the Abbott Nutrition plant in Michigan was forced to close temporarily due to an FDA investigation into possible contamination, it created a supply shock that left store shelves empty and parents scrambling to find formula. Because of the FDA’s protectionist rules (and high tariffs levied on foreign-made formula), markets could not adapt quickly to the shortage here in America”
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“In testimony to Congress, FDA officials admitted to botching the response to the contamination at the Abbott plant. But the real culprit of the recent shortage was a deeper and more pervasive one. No matter what nationalists like Sen. Josh Hawley (R–Mo.) might suggest, closing off the country to international trade is not a recipe for resilience. The baby formula crisis demonstrated that it is quite the opposite.
So it’s good to see the FDA admit those mistakes and crack open the door to allowing foreign formula into the U.S. on a permanent basis.
Unfortunately, the list of policy changes the FDA announced..mostly amounts to providing technical assistance to foreign firms that want to sell formula here. That is, offering help in navigating the complex approval process, rather than sweeping aside those regulations entirely. If a formula maker has passed muster under E.U. regulations, that should be good enough for the FDA.
There’s also the matter of tariffs on imported formula, which are so high that they effectively make any imported formula uncompetitive in the American market. Why would a foreign manufacturer like Holle or HiPP go through the complicated FDA approval process (even after the announced changes) if it knows in advance that its goods won’t be able to compete on a level playing field in America?”
Pennsylvania Town Threatens Churches With $500 Fines for Providing Free Meals, Counseling Services
“Two Philadelphia-area churches have come under fire from local zoning officials, who say their free meal services, mental health counseling, and monthly pantries aren’t allowed on their properties and will have to stop or else they risk fines.
In early June, Pottstown staff sent letters to Christ Episcopal Church and Mission First, saying that this charitable work went beyond the allowable activities for churches in the borough’s Downtown zoning district.”
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“The two churches can either apply for a zoning variance—which requires going before the borough’s Zoning Hearing Board—or stop the disallowed charitable work. Failure to do either of those things could result in the churches being hit with $500 fines for every day they’re out of compliance.
“It was an absolute surprise when we got this letter,” says Dennis Coleman, the deacon of Christ Episcopal Church. He says that his church has been providing meals and an “essentials” pantry for years without incident.”
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“Even when charitable activities are allowed by the zoning code, the process for getting them approved is long and discretionary. Frequently, it will involve public hearings where opponents have the opportunity to urge zoning officials to deny permits for a new soup kitchen or shelter.”
The Supreme Court’s new gun ruling means virtually no gun regulation is safe
“The Second Amendment states that “a well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Thus, it is the rare constitutional provision that not only declares the existence of a right, but also states the reason why this right exists. The purpose of the Second Amendment is to protect “a well regulated Militia.” That’s what the plain text of the Constitution provides.
But Thomas’s opinion in Bruen, much like the Court’s earlier decision in District of Columbia v. Heller (2008), thumbs its nose at the text of the Constitution.”
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“The immediate impact of Bruen is that handguns — which are responsible for the overwhelming majority of gun murders in the United States — are likely to proliferate on many American streets. That’s because Bruen strikes the types of laws that limit who can legally carry handguns in public, holding that “the Second and Fourteenth Amendments protect an individual’s right to carry a handgun for self-defense outside the home.”
The case involves a 109-year-old New York state law which requires anyone who wishes to carry a handgun in public, whether openly or concealed, to demonstrate “proper cause” before they can obtain a license to do so. An applicant must show “a special need for self-protection distinguishable from that of the general community or of persons engaged in the same profession.”
Similar laws exist in five other states — California, Hawaii, Maryland, Massachusetts, and New Jersey — plus the District of Columbia. Together, these jurisdictions make up about a quarter of the US population, and a much higher percentage of the country’s urban population. In effect, that has meant very few residents of those states have been able to legally carry a handgun in public.
Writing solely for the Court’s Republican appointees, Justice Clarence Thomas strikes down New York’s century-old law. He also establishes a whole new (confusing) framework for evaluating gun control laws. Bruen establishes a “text, history, and tradition test” that purports to be rooted in, well, the text of the Constitution, and the history of English and early American gun laws.
In reality, however, Thomas’s new test takes extraordinary liberties with the text of the Second Amendment, which explicitly states that the purpose of the right to bear arms is to protect service in a militia.
And when it comes to “history,” “the Court’s near-exclusive reliance on history is not only unnecessary, it is deeply impractical,” as Breyer chastises Thomas in dissent. That’s because judges are ill-equipped to conduct the kind of multi-century historical survey that Thomas’s new framework demands.
Worse, Thomas announces that the government bears the burden of showing that any gun law “is consistent with this Nation’s historical tradition of firearm regulation.” But if “tradition” is so important, why must New York’s 100-year-old law fall? As a practical matter, moreover, that Thomas places the burden of proof on the government means many gun laws are likely to fall because, when the historical record is unclear, the government loses.”
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“As the Court explained in United States v. Miller (1939), the “obvious purpose” of the Second Amendment was to “render possible the effectiveness” of militias, and the amendment must be “interpreted and applied with that end in view.”
But Heller upended that. And quoting from Heller, Thomas writes that “individual self-defense is ‘the central component’ of the Second Amendment right.” And therefore gun regulations should be judged according to whether they undermine this atextual purpose invented by Republican appointees to the Supreme Court.
Similarly, Thomas writes that courts should determine whether a modern-day gun regulation fits within the nation’s historical traditions by drawing “historical analogies” to early American gun laws.
Thomas’s opinion suggests that these analogies may need to be drawn to laws that existed in 1791, when the Second Amendment was ratified; or that they may need to be drawn to laws that existed in 1865 — when the Fourteenth Amendment, which requires states to comply with the Second Amendment, was ratified. It declines to resolve questions about which date matters, however, adding another layer of confusion for judges forced to apply Bruen.
In any event, there are fairly obvious reasons why it is hard to draw reliable analogies between modern-day regulations and laws from earlier centuries. Federal law, for example, prohibits civilian ownership of machine guns. But the machine gun was invented in 1884. So a judge searching for early American laws regulating automatic weapons will come up empty, because machine guns did not exist during either the Founding Era or the Reconstruction Era. Does this mean that a ban on machine guns is unconstitutional?
Thomas also writes that “when a challenged regulation addresses a general societal problem that has persisted since the 18th century, the lack of a distinctly similar historical regulation addressing that problem is relevant evidence that the challenged regulation is inconsistent with the Second Amendment.” In other words, modern gun laws that address problems that existed in the 1700s are likely to fall, unless similar laws existed in the 18th century.
For this reason, Thomas concludes that a handgun ban like the one struck down in Heller is unconstitutional because the framers did not ban handguns in order to combat the problem of “firearm violence in densely populated communities.”
But this reasoning is anachronistic. According to the 1790 census, New York City had only 33,131 residents around the time when the Second Amendment was ratified. The second-largest city, Philadelphia, had fewer than 29,000 residents.
Eighteenth-century Americans, in other words, simply did not confront the problem of “firearm violence in densely populated communities.” The most densely populated communities in the 18th-century United States had roughly the same number of people as a small town in modern-day America.”
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“this litany of long-forgotten laws does little to clarify the question of what the framing generation (or perhaps people during Reconstruction) thought about the right to carry a firearm without a permit on city streets. The bottom line is that the six Republican appointees surveyed many centuries worth of gun laws and concluded that they support the Republican Party’s preferred stance on firearms; while the three Democratic appointees surveyed the same laws and concluded that they support the Democratic Party’s preferred stance on firearms.
In fairness, Thomas does offer a workaround for the problem that many modern weapons — from machine guns to intercontinental ballistic missiles — did not exist until very recently and therefore were not regulated by early American lawmakers.
The lesson of history, Thomas claims, is that the Second Amendment protects the right of civilians to carry weapons that “are ‘in common use at the time.’” So an amendment that may have protected the right to own a musket in 1790 now protects the right to own a handgun, because handguns are now commonly used by civilians. Similarly, even Thomas would likely concede that the Second Amendment does not permit civilians to own tanks, nuclear warheads, or other weapons that are not commonly possessed by civilians in 2022.
Judges will no doubt have an easier time determining what kinds of guns are in common use in 2022 than they will determining what 18th-century gun laws have to say about the B-2 stealth bomber. But Thomas’s need to rely on such a workaround from his “text, history, and tradition” framework only emphasizes the uselessness of that framework.”