RTP's Fourth Branch Podcast

Join us as the U.S. Department of Health and Human Services Deputy Secretary Eric Hargan discusses the role of his agency. Likely topics include COVID-19, as well as the agency’s regulatory reform efforts.

Featuring:
- Eric Hargan, Deputy Secretary of the Department of Health and Human Services (HHS)

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On November 1, 2019, Neora, a Texas-based healthcare products multi-level marketing (MLM) business, filed suit in Illinois Federal Court against the FTC. The suit alleges that throughout three years of enforcement actions, the agency attempted to unilaterally and retroactively change the law governing MLMs without Congressional action or formal rulemaking. Neora asserts that in these types of regulatory enforcement actions other businesses are not only forced to try to prove their innocence, but they are forced to prove their innocence under standards that are not set forth by existing law. They argue that other businesses similarly situated are either coerced into resolutions/settlements or forced to fight.

Later on the same day, the FTC filed suit against Neora in New Jersey. The FTC asserts that Neora was unlike legitimate MLMs and was a “pyramid scheme” since its inception. The FTC argues that the company has focused on recruiting new distributors or so-called brand partners (BPs) and the vast majority of them don’t earn anything after expenses and quit.

Neora Co-CEO Deborah Heisz and lead litigation counsel Ed Burbach of Foley & Lardner will join us to describe their last four years of interactions with the FTC and the ultimate “fencing in” proposal that lead them to file suit.

Featuring:
- Ed Burbach, Partner, Foley & Lardner LLP
- Deborah Heisz, Co-CEO, Neora

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The Environment and Natural Resources Division of the Department of Justice recently announced a policy that the Division would no longer agree to Supplemental Environmental Projects (SEPs) in settlement agreements or judicial consent decrees resolving violations of environmental laws. As defined by EPA, a SEP is an environmentally beneficial project or activity that is not required by law, but that a defendant agrees to undertake as part of the settlement of an enforcement action. Under EPA’s SEPs policy, the agency (through the Division) will seek a lesser civil monetary penalty in settling a civil enforcement action than what it would otherwise seek in the settlement in exchange for a defendant’s voluntary commitment to perform a SEP. Because SEPs purposefully trade civil monetary penalties payable to the U.S. Treasury for projects selected or approved by EPA that Congress either has not approved or had no occasion to consider, do SEPs violate the Miscellaneous Receipts Act and other laws intended to preserve Congress’ constitutional power of the purse?

Featuring:
- Jeffrey Clark, Assistant Attorney General, Environment and Natural Resources Division (ENRD), Department of Justice

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The COVID-19 pandemic has the medical community scrambling to address shortages of supplies and some clinicians to properly care for all of the many patients who will present soon with significant symptoms. Among the problems is a lack of sufficient numbers of physicians in some of the communities that have been hardest hit by the spread of the virus.

This episode will examine the current process for educating, training, and licensing physicians in the US, with a focus on whether the current process is sufficiently flexible to adjust as needed to accommodate changing demand by patients. James Capretta, the author of a recent paper on the subject ("Promoting a More Adaptable Physician Pipeline" released as part of the Regulatory Transparency Project), and Chris Pope, Senior Fellow at the Manhattan Institute, will briefly discuss the historical context of the US' licensing system, the basic steps that are involved, the federal government's role in financing residency training, the immigration rules for foreign-born physicians, and policies that might make the current system more flexible and adaptable to changing societal needs.

Featuring:
- James C. Capretta, Resident Fellow and Milton Friedman Chair, American Enterprise Institute
- Chris Pope, Senior Fellow, Manhattan Institute

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Governments at all levels are figuring out how to make sure sick people are treated and that coronavirus doesn’t spread. Some experts are now drawing attention to possible regulatory reforms (https://www.rstreet.org/2020/03/18/small-regulatory-reforms-that-can-help-people-during-the-pandemic/), as early reports suggested that federal agencies may have prevented private testing for COVID-19 before slowly issuing approval.

Others are calling for state-level reforms, such as changes to occupational licensing requirements. Existing occupational licensing laws arguably restrict medical professionals, including nurses and pharmacists, from practicing to the full scope of their training by limiting what duties they can take on and making nurses practice under doctor supervision. Licenses rarely transfer across state lines. This means that qualified doctors in one state cannot practice in other states, severely restricting their ability to provide telehealth services to potential patients. Advocates posit that these doctors should be allowed to prioritize the most pressing cases on telehealth. Many states have implemented emergency reforms regarding these issues to help prevent physician burnout and make sure medical professionals can focus their energies where needed.

Municipal-level reforms are also being discussed as vital to avoid penalizing residents for acting responsibly. In many localities, working from home requires the worker to overcome regulatory requirements. Some view this as generally unwise but are now drawing even greater attention to the topic because Americans are being urged to stay inside.

Further, while some regulations like parking limits make perfect sense in normal times, is suspending such rules worth considering in the current environment? This episode will discuss these issues and more.

Featuring:
- David Hyman, Scott K. Ginsburg Professor of Health Law & Policy, Georgetown University
- Roger Klein, Faculty Fellow, Center for Law, Science & Innovation, Sandra Day O'Connor College of Law
- Shoshana Weissmann, Senior Manager of Digital Media and Fellow, R Street Institute

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In this episode, Matthew Feeney hosts a discussion with Ashkhen Kazaryan and Caleb Watney on the approach regulators might take to the brave new world of facial recognition technology.

Featuring:
- Ashkhen Kazryan, Director of Civil Liberties, TechFreedom
- Caleb Watney, Fellow, Technology and Innovation, R Street Institute
- [Moderator] Matthew Feeney, Director, Project on Emerging Technologies, Cato Institute

Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.

Additional Resources:
- Brookings Institution: https://www.brookings.edu/blog/techtank/2019/06/20/what-are-the-proper-limits-on-police-use-of-facial-recognition/
- Cato Institute: https://www.cato.org/blog/should-police-facial-recognition-be-banned
- Tech Policy Corner: https://techpolicycorner.org/creeped-out-congress-grills-fbi-on-facial-recognition-tech-37a1123f48f8

38 states have certificate of need (CON) laws which make it illegal for healthcare providers to offer healthcare services to patients without first getting government permission. Defenders of CON laws assert that they are needed to control healthcare costs. However, these anti-competitive laws may violate a host of constitutional provisions, including state anti-monopoly clauses. Many courts have observed that CON laws are in fact anti-competitive but despite legal challenges, a majority of states have CON laws on the books today.

This episode discusses recent and current state CON law litigation, including the pending Singh v. North Carolina Dept of Health & Human Services matter.


Featuring:
- Christina Sandefur, Executive Vice President, Goldwater Institute
- Josh Windham, Attorney, Institute for Justice

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Does New York’s “rent stabilization” law violate the federal Constitution? The law, which regulates approximately 1 million apartments in New York City, was enacted more than fifty years ago and remains in effect based on an every-three-year declaration of a housing “emergency.” The law does not merely regulate rent levels, it also limits a property owner’s right to determine who uses an apartment, to convert the property to new uses, and to occupy the property for use by the owner and his or her family.

A lawsuit filed last year asserts that the New York law—including 2019 amendments that significantly increased the restrictions on property owners—violates due process and effects both physical and regulatory takings of the property that it regulates. New York City, New York State, and tenant advocacy groups have moved to dismiss the action.

Rent control is not just a New York phenomenon. Other cities across the country have enacted, or are considering, rent regulation legislation. Andrew Pincus, lead counsel for the plaintiffs, and Prof. Richard Epstein, of New York University School of Law, will discuss the constitutional challenge in the context of the Supreme Court’s evolving property rights jurisprudence.

Featuring:
- Prof. Richard Epstein, Laurence A. Tisch Professor of Law and Director, Classical Liberal Institute, New York University School of Law
- Andrew Pincus, Partner, Mayer Brown LLP

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In this Explainer episode, Jeff Stier tells the innovative story of Impossible Burger, a company that developed leghemoglobin to mimic the taste of meat in non-meat-based products. Instead of rushing to regulate this new development, FDA took a hands-off approach, allowing the company to bring a beneficial, and widely recognized as safe, product to market. Jeff argues that innovation, rather than heavy-handed regulation, ought to be the primary way of reducing harm.

Featuring:
- Jeff Stier, Senior Fellow, Consumer Choice Center and Taxpayers Protection Alliance

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On March 15, 2020, certain authorities under the Foreign Intelligence Surveillance Act (FISA) will expire absent renewal by Congress. The authorities set to expire fall into three categories: 1) the business records provision (often referred to as Section 215) that allows for collection of call detail records, among other things; 2) roving wiretaps; and 3) the lone wolf provision. On March 11, the House passed a compromise bill that the Senate will soon consider. However, several Republican Senators have already urged President Trump to veto the reauthorization bill, should it pass both chambers.

This decision point comes at a time of heightened scrutiny, given the recent Department of Justice Inspector General report addressing the FBI's use of FISA while investigating the 2016 presidential election and a Foreign Intelligence Surveillance Court of Review order expressing "serious concerns about the accuracy and completeness" of the FBI's FISA applications in that case. Please join us for a timely discussion of the mechanics and processes of FISA, recent controversies, and issues Congress will consider as it determines whether and how to renew these key provisions.

Featuring:
- Ashley Baker, Director of Public Policy, Committee for Justice
- Nathan Leamer, Vice President of Public Affairs, Targeted Victory

Visit our website – RegProject.org – to learn more, view all of our content, and connect with us on social media.