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A 13th Century poem, written by Scottish monks, provides the earliest independent recording of Magna Carta. Remarkably, no one figured out what the poem was talking about till this year!

The Melrose poem, written in Latin, is remarkably clear. It begins: “A new state of things begun in England; such a strange affair as had never been heard; for the body wishes to rule the head, and the people desired to be masters over the king.”

I love the image of the “body” ruling the “head,” and the “people” as “masters over the king.” That is Magna Carta!

It goes on to explain the anger at King John. “The king, it is true, had perverted the excellent institutions of the realm, and had mismanaged its laws and customs, and misgoverned his subjects. His inclination became his law; he oppressed his own subjects; he placed over them foreign mercenary soldiers, and he put to death the lawful heirs, of whom he had obtained possession as his hostages, while an alien seized their lands.”

I think the charge of “his inclination became his law” is quite salient today.

This may be the only official report of what happened on that June day in 1215.

The library’s curator of medieval manuscripts, Julian Harrison, who made the discovery, said the Melrose Chronicle had simply never figured on anyone’s radar.

“It does set out in quite precise terms the sequence of events at Runnymede for negotiations between the king and the barons. There is no official report of what happened. We don’t actually know who was present. This is sufficiently detailed to suggest that the person was present or knew somebody who was present.”

Harrison’s hunch is that it may have been someone in the retinue of Alan of Galloway, a Scottish nobleman who is known to have been at Runnymede, who imparted the information. A scenario can be imagined of Alan and his men heading home and stopping off at Melrose rest and telling the monks of the strange events in England.

Not since the discovery of Jonathan Gruber’s comments about Obamacare have we witnessed such an important contemporaneous account of a legal milestone.

The Miami Herald reports on an issue I have been thinking about recently–what happens the day after King v. Burwell is decided. In the Sunshine State the answer seems to be, we’ll worry about it later.

Nearly 900,000 Floridians could lose Obamacare tax subsidies under a new U.S. Supreme Court case, but state political leaders say they’re making no plans to deal with the potential fallout . . . .

The states in question could make the controversy go away by establishing their own exchanges. But Florida and other conservative-led states want Obamacare to fail — and they’re content right now to leave this in the hands of the U.S. Supreme Court, which leans Republican.

“I’d wait and see what happens. That’s down the road,” said Gov. Rick Scott, a phrase repeated by his fellow Republicans who lead the House and Senate in Tallahassee.

The Herald speaks to the likely political battle:

All the major potential GOP candidates for president either want to repeal or severely limit Obamacare, including the two Floridians who might seek the presidency, Sen. Marco Rubio and former Gov. Jeb Bush.

“If the Republican Party’s main candidates or nominee are campaigning to get rid of Obamacare, I can’t see the Legislature in an election year taking a separate position,” said Marc Reichelderfer, a longtime Tallahassee lobbyist and top Republican political consultant.

But state Sen. Rene Garcia, R-Hialeah, said he wants a state-run exchange “because it empowers us much more than relying on the federal government.” He said that a court ruling against subsidies in a state like Florida could force the state to reexamine establishing an exchange.

“If they get rid of the subsidies, it’s going to be a big battle,” Garcia said. “All those people receiving the federal subsidies are going to force us to answer to them. We’re going to have to do something.” …

Florida House Speaker Steve Crisafulli and Senate President Andy Gardiner both said they’ll “wait and see” what the court does before they act.

“We have discussed it, and when you look at what other states have done with exchanges, I think it’s been a real challenge,” Gardiner said. “But I think you’ll find we’re at least open for debate.”

Miami Herald staff writers Mary Ellen Klas, Kathleen McGrory and Nicholas Nehamas contributed to this report.

While Florida officials won’t say what they’ll do if the court rules against the Obama administration, leaders in other Republican states are more forthcoming. When asked if Louisiana would set up an exchange, Gov. Bobby Jindal said “absolutely not.”

“If the court holds that the law means what it says, that will cause an implosion of the law,” Jindal said.

It’s difficult to get an exact number of Obamacare enrollees. The administration inflated nationwide enrollment numbers by adding in about 380,000 dental plan enrollees to keep the total nationwide figure at 7 million, Bloomberg reported.

For starters, if the high court rules against the Obama administration, not everyone who would lose a tax credit would therefore be required to buy health insurance and pay more out of pocket. That’s because the ACA provides that people can avoid buying insurance if the cost exceeds 8 percent of their income.

Other people generally have to buy health insurance or face a tax penalty. How many people is that? No one knows.

If the IRS tax credit rule is struck down, insurers in states like Florida fear that fewer people would buy insurance because they won’t get subsidized. That would leave sicker people who need insurance in the market. Premiums would then rise further. More people would then be priced out, leaving the plans in a “death spiral.”

 

The Times reports on the inner-workings of the Obama Administration’s legal justification for executive action of immigration.

Months before President Obama took executive action last week to reshape the nation’s immigration system, Jeh C. Johnson, the secretary of Homeland Security, quietly convened a small group of advisers to test the legal limits of the president’s powers.

Working in secrecy, Mr. Johnson’s team huddled for hours each day under orders to use “our legal authorities to the fullest extent” on a new immigration policy, a senior administration official said. Over the summer, Mr. Johnson and Mr. Obama pored over proposed changes together, eventually concluding that the president had the authority to enact changes that could affect millions of people and significantly alter the way immigration laws are enforced.

The article continues to explain the various iterations of the plan. At each stage, it was the President who told them to go further:

Mr. Johnson’s efforts, along with Mr. Obama’s rising frustration with Mr. Boehner and a well-funded advocacy community that relentlessly pressured the White House, led to the president’s prime-time address to the nation on Nov. 20, when he said he would shield as many as five million undocumented immigrants from deportation and allow many of them to work legally. But the roots of Mr. Obama’s speech, which nervous Democrats asked him to give only after the midterm elections, date back a full, tumultuous and angry year in Washington. …

In the meantime, Mr. Johnson’s review of the president’s legal authority was supposed to help resolve the issue. But his first attempt in May was a disappointment, White House officials said, because in the president’s view, he did not go far enough. The effort only sought to modify the guidance for immigration agents, and did not provide work permits or directly shield anyone from deportation.

And yet, with Republicans still struggling to move forward, the president’s Democratic allies on Capitol Hill reminded him that even Mr. Johnson’s tepid suggestions would probably derail any hopes for legislation.

Mr. Obama told Mr. Johnson to try again, and then announced that he would delay the results of the review until the end of the summer, hoping to give Mr. Boehner one last chance for action.

We also learn that DHS independently concluded that the law could not protect the 7 million who would have been covered by the immigration law.

He instructed Mr. Johnson to undertake a much broader examination of his executive authority, but the secretary and his team still concluded that Mr. Obama could not grant protections to seven million or more immigrants who might have qualified under an immigration bill passed by the Senate in 2013, as advocates had demanded. After consulting with Mr. Obama, they eventually decided on five million.

But one thing isn’t making sense. The report speaks only of legal analysts working for Secretary Johnsen DHS. It is not clear if this includes OLC. What makes this confusing is according to the OLC memo, DHS determined that parents of DACA beneficiaries could received deferred action. OLC told them, they could not do this. (This may be the 7 million mentioned above).

How can this history fit in with the timeline offered by the Times? My guess (what I suspected all along) was that DHS’s inquiry about extending benefits to the parents of DACA beneficiaries was a throwaway to the immigrant community. “Oh we wanted to, but we lacked the legal authority.” They knew all along they weren’t going to do this. But OLC makes clear that DACA is on really shaky legal footing. DHS authorized that policy, and not OLC, which provided only “oral” advice.

FantasySCOTUS and {Marshall}+ are profiled in the December ABA Journal Magazine. Here are my pull quotes:

The predictor is the brainchild of law professors Josh Blackman, Michael Bommarito and Dan Katz. It is based on a mathematical concept called the ensemble tree model [sic: it should be extremely random trees], which adapts and changes as it gains more information, Blackman says.

“The goal of ensemble is to find out what people do better and what computers do better, and then we can calibrate them to judge appropriately,” says Blackman, an assistant professor at South Texas College of Law. “This isn’t about computers running roughshod over lawyers. This is about using intelligence to make the best decisions.” …

Blackman plans to pit the predictor against his FantasySCOTUS league during the court’s current session.

While the profs think humans will win this year, they expect the computer model to succeed in the future.

And it’s not just for fun. Blackman sees a “strong enough market for lower court analytics that this will eventually come there and be in widely available use for lawyers at that level.”

As President Obama was heckled by protestors who urged him to stop all deportations, he admitted perhaps a bit too much.

“Now, you’re absolutely right that there have been significant numbers of deportations. That’s true. But what you are not paying attention to is the fact that I just took an action to change the law.”

This isn’t the first time the President has admitted he changed the law. In August, he admitted that he made a “temporary modification” to Obamacare:

One of the main objections that’s the basis of this suit is us making a temporary modification to the health care law that they said needed to be modified.  (Laughter.)  So they criticized a provision; we modify it to make it easier for business to transition; and that’s the basis for their suit.  Now, you could say that, all right, this is a harmless political stunt — except it wastes America’s time.  You guys are all paying for it as taxpayers.  It’s not very productive.  But it’s not going to stop me from doing what I think needs to be done in order to help families all across this country.  (Applause.)

Of course, in both cases, what he meant to say was that based on his prosecutorial discretion, he re-prioritized his enforcement decisions.