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In a footnote on the last page of the government’s petition for rehearing en banc in Halbig, we find this parting note:

The panel majority suggested that its ruling would apply nationwide, Op. 41-42, but it did not squarely hold as much or address the many reasons why relief should not extend beyond the named plaintiffs. The panel’s decision does not control in other circuits, just as the Fourth Circuit’s King decision does not control here.

Kudos to my colleagues Dan Katz and Renee Newman Knake, and the ReInvent Law laboratory they founded, which was featured in the New York Times. The article, titled “This is Law School?” takes a look at how law schools are innovating, and teaching law students valuable new skills.

One of the founders of the Reinvent Law Laboratory is Daniel Martin Katz, an associate professor with expertise in big data and powerful computing and their applications to legal studies. He hopes to give his students a leg up in a job market that seems increasingly bleak, and to help them become “T-shaped,” by which he means having deep knowledge — the downward swipe of the letter T — as well as a broadened set of abilities. So providing them with information on seemingly arcane subjects like data analytics can be a career builder. “Analytics plus law gets you into a niche,” he said. The program is partly funded by the Kauffman Foundation, which supports entrepreneurship education.

My buddy Bill Henderson also gets a nice shout-out:

At Indiana University’s law school, Prof. William D. Henderson has been advocating a shake-up in legal education whose time may have come. “You have got to be in a lot of pain” before a school will change something as tradition-bound as legal training, he said, but pain is everywhere at the moment, and “that’s kind of our opening.” He advocates putting more technology and practical training into the curriculum to adapt to a field that is less about “expensive, artisan-trained lawyers” and more about providing legal services at lower cost.

I’m glad the paper of record is focusing on this very, very important development in legal pedagogy.

From GAO testimony before the House, we learned that as early as the spring of 2013, HHS knew that only 65% of the site would be ready by launch date.

Mr. Woods said evidence in the files of the Department of Health and Human Services, from the spring of 2013, indicated that the federal exchange would be “only 65 percent complete” on Oct. 1, when it opened to the public.

In an effort to meet the October deadline, he said, “changes were being made in contract requirements at the direction of people who did not have the authority to do that.”

Moreover, he said, federal health officials ordered contractors to perform additional work, at additional cost to the government, without the knowledge of the contracting officer, the only person who was authorized to change the terms of contracts for the federal exchange.

Yet, they proceeded to launch an unfinished product. It seems that no one in leadership knew:

MELISSA ATTIAS:  The top Democrat on the subcommittee, who is Diana DeGette of Colorado, really took pains to make sure this was clarified. The GAO witness said that files his agency reviewed suggest that people within CMS knew that the website would not work on Oct. 1. He said GAO found some indication that there were estimates in the spring of 2013 that the federal exchange would only be 65 percent complete by the deadline.

But he said he had no evidence that CMS Administrator Marilyn Tavenner or a former CMS official, Gary Cohen, knew that the site would not be ready – or live in other words – when they testified before the committee.

In Congressional Intransigence and Executive Power, I place the President’s decision to enforce DACA after the Senate explicitly did not pass it outside the three tiers of Youngstown. Here, we have a case where the President is relying on some sort of inherent executive power where Congress–the body who passes immigration laws–expressly declined to do exactly what the President wanted. Here the President has the weakest claim to executive power.

Rep. Luis Gutierrez said that American’s approved of DACA, as evidenced by the presidential election. (I don’t have an exact quote, only this tweet which I’ve seen reported in a few places). I don’t think Gutierrez attempted to make a serious constitutional argument, but I’ll take him up on it. So is that right? Does the re-election of the President reaffirm his executive actions?

I think the answer has to be. Congress, the body charged with immigration laws, continues to be opposed to the existing DACA regime, and dead set at stopping an expansion of DACA. The current kerfuffle in the House over attempting to stop DACA seems like evidence that Congress still has not ratified DACA.

Also, to the extent that we look at public opinion polling, the President’s numbers are tanking with respect to immigration.

Update: The House voted to stop the President’s DACA policy.

The House on Friday passed legislation aimed at curbing President Obama’s use of executive authority to slow deportations of young people who arrived here as children.

The bill passed 216-192, with 11 Republicans voting against it and four Democrats voting in favor of the measure.

…

The House bill would block funding for continuation or expansion of the DACA program, a move Republicans said will discourage young migrants from trying to cross the border into the United States.

The vote was 216 for, 192 against. 4 Democrats voted for it, and 11 Republicans voted against it.

Here is the text of the bill:

SECTION 1. PROHIBITIONS RELATING TO DEFERRED ACTION.

 

Unless explicitly authorized by law, no agency or instrumentality of the Federal Government may issue after July 30, 2014, guidance, memorandums, regulations, policies, or other similar instruments the effect of which is–

 

(1) to modify, in any manner that would expand the number of aliens eligible for deferred action, the Executive memorandum dated June 15, 2012, concerning deferred action for childhood arrivals;

 

(2) to newly authorize deferred action for any class of aliens not in lawful immigration status in the United States; or

 

(3) to newly authorize any alien to work in the United States if such alien–

 

(A) was not lawfully admitted into the United States in compliance with the immigration laws (as defined in section 101(a)(17) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(17))), except that this subparagraph shall not apply to an alien who is paroled under section 212(d)(5) of the Immigration and Nationality Act (8 U.S.C. 1182(d)(5)) or permitted to land temporarily as an alien crewman; and

 

(B) is not lawfully present in the United States.

 

Erin Hawley raises one of my favorite pet issues left unresolved by NFIB–whether the Anti-Injunction act was jurisdictional, and barred the Court of jurisdiction to resolve the case.

It seems the Court dodged the issue again in Hobby Lobby. The contraceptive mandate is accompanied by a penalty, labelled may times as a tax. Shouldn’t Hobby Lobby have had to pay the tax, and then seek a refund.

Erin addresses this issue in the YLJ Forum. Here is the abstract:

Burwell v. Hobby Lobby Stores may well be the biggest case of the term. And by its own rules, the Supreme Court lacked jurisdiction. An obscure statute, the Anti-Injunction Act of 1867 (“the AIA”), imposes a pay-first requirement for federal tax challenges. The deeply held conventional wisdom is that the AIA is a jurisdictional statute, and there is a good argument that the AIA applies to the contraception mandate. As we learned from National Federation of Independent Business v. Sebelius, 132 S.Ct. 2566 (2012), the best evidence of whether Congress intended the AIA to apply is the text. The mandate at issue in Hobby Lobby, 26 U.S.C. § 4980D, expressly refers to the employer assessment as a tax—24 times. In light of NFIB, the Supreme Court’s failure to address the AIA was a serious mistake.