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In one of the earliest attempts at modifying the enforcement of laws he disagreed with, President Obama issued waivers for states that did not comply with No Child Left Behind. However, these waivers came with conditions found nowhere in the statute. As Jon Adler explained in 2011:

The NCLB Act allows for waivers of statutory and regulatory requirements placed on state recipients of federal education funds in Section 9401.  This provision identifies things a state must do to be eligible for a waiver, including showings a state must make, but it does not impose any of the conditions detailed in the Department of Education’s announcement. For example, Section 9401 requires a state to explain how the waiver will enable the state to ” increase the quality of instruction for students” and “improve the academic achievement of students,” but the Department of Education’s new requirements seem to go much farther than this. Moreover, nothing in Section 9401 appears to authorize the Secretary of Education from setting additional conditions on waiver requests.

Today, Politico reports that the Republicans are looking to overhaul NCLB, but notes the President may veto it.

The president may be hard-pressed to veto even a very conservative bill, though the administration has signaled in the past it will take a hard line when it comes to preserving annual tests and other provisions that focus on equal access to education in NCLB. The Obama administration ushered in what has been labeled a dismantling of the law by giving states huge leeway on some of its key provisions, but the so-called waiver policy is unpopular in the states in no small part because it helped encourage the proliferation of the Common Core standards.

The President’s waivers, which have “been labeled a dismantling of the law,” may be preferred to an actual Congressional change Specifically, the waivers allowed the President to remake the law in his own image:

By the time the 2012 elections moved into full swing, the Obama administration was issuing waivers to states exempting them from the most punitive parts of NCLB in exchange for sketching out their own state plans for improving teacher quality, academic standards and creating better accountability systems.

There you have it.  Interestingly, an education wonk dubbed the waivers a “pressure valve.”

“The waivers opened a pressure valve” that allowed members of Congress to delay rewriting the law, said Noelle Ellerson, associate executive director at AASA, the School Superintendents Association. Waiver provisions could stretch into the next administration.

The Solicitor General famously referred   to the President’s illegal recess appointments at issue in Noel Canning as a “safety valve” for gridlock. This quotation similarly views unlawful executive power as a way around Congress’s unwillingness to reform an education law that is not working. But, you know, democracy is so “messy and complicated.”

I have already analyzed in two posts why Texas should be able to illustrate concrete injuries as a result of the work authorizations resulting from DAPA. A colleague, ProfessorPeter Margulies, suggested another ground which buttresses this claim is Chamber of Commerce v. Whiting (2011). The Chief Justice’s majority opinion recognized that the states retain their authority under the police power for licensing, even in an area that is solely the provence of the federal government–immigration.

We first addressed the interaction of federal immigration law and state laws dealing with the employment of unauthorized aliens in De Canas, 424 U.S. 351, 96 S.Ct. 933, 47 L.Ed.2d 43. In that case, we recognized that the “[p]ower to regulate immigration is unquestionably … a federal power.” Id., at 354, 96 S.Ct. 933. At the same time, however, we noted that the “States possess broad authority under their police powers to regulate the employment relationship to protect workers within the State,” id., at 356, 96 S.Ct. 933, that “prohibit[ing] the knowing employment … of persons not entitled to lawful residence in the United States, let alone to work here, is certainly within the mainstream of [the State’s] police power,” ibid., and that the Federal Government had “at best” expressed “a peripheral concern with [the] employment of illegal entrants” at that point in time, id., at 360, 96 S.Ct. 933. As a result, we declined to hold that a state law assessing civil fines for the employment of unauthorized aliens was preempted by federal immigration law.

The Court found that even in areas where Congress has not expressly preempted state authority, the states retain the power to enforce licensing laws to the extent that the states rely on the federal standard of determining legal status for aliens.

IRCA expressly preempts some state powers dealing with the employment of unauthorized aliens and it expressly preserves others. We hold that Arizona’s licensing law falls well within the confines of the authority Congress chose to leave to the States and therefore is not expressly preempted.

In this case, the Arizona law “allows Arizona courts to suspend or revoke the licenses necessary to do business in the State if an employer knowingly or intentionally employs an unauthorized alien,” based on the federal standard of unauthorized alien.

And here Arizona went the extra mile in ensuring that its law closely tracks IRCA’s provisions in all material respects. The Arizona law begins by adopting the federal definition of who qualifies as an “unauthorized alien.” Compare 8 U.S.C. § 1324a(h)(3) (an “unauthorized alien” is an alien not “lawfully admitted for permanent residence” or not otherwise authorized by federal law to be employed) with Ariz.Rev.Stat. Ann. § 23–211(11) (adopting the federal definition of “unauthorized alien”); see De Canas, 424 U.S., at 363, 96 S.Ct. 933 (finding no preemption of state law that operates “only with respect to individuals whom the Federal Government has already declared cannot work in this country”).
Not only that, the Arizona law expressly provides that state investigators must verify the work authorization of an allegedly unauthorized alien with the Federal Government, and “shall not attempt to independently make a final determination on whether an alien is authorized to work in the United States.” § 23–212(B). What is more, a state court “shall consider only the federal government’s determination” when deciding “whether an employee is an unauthorized alien.” § 23–212(H) (emphasis added). As a result, there can by definition be no conflict between state and federal law as to worker authorization, either at the investigatory or adjudicatory stage.

Even so, the states retain this authority under their police power.

But Congress expressly preserved the ability of the States to impose their own sanctions through licensing; *1980 that—like our federal system in general—necessarily entails the prospect of some departure from homogeneity. And as for “separate prohibition[s],” it is worth recalling that the Arizona licensing law is based exclusively on the federal prohibition—a court reviewing a complaint under the Arizona law may “consider only the federal government’s determination” with respect to “whether an employee is an unauthorized alien.”

The regulation of business licensing is still a matter of local concern, even if it involves a matter of federal concern:

As an initial matter, the cases on which the Chamber relies in advancing this argument all involve uniquely federal areas of regulation. See American Ins. Assn. v. Garamendi, 539 U.S. 396, 401, 405–406, 123 S.Ct. 2374, 156 L.Ed.2d 376 (2003) (presidential conduct of foreign policy); Crosby v. National Foreign Trade Council, 530 U.S. 363, 373–374, 120 S.Ct. 2288, 147 L.Ed.2d 352 (2000) (foreign affairs power); Buckman Co. v. Plaintiffs’ Legal Comm., 531 U.S. 341, 352, 121 S.Ct. 1012, 148 L.Ed.2d 854 (2001) (fraud on a federal agency); United States v. Locke, 529 U.S. 89, 97, 99, 120 S.Ct. 1135, 146 L.Ed.2d 69 (2000) (regulation of maritime vessels); Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 143–144, 109 S.Ct. 971, 103 L.Ed.2d 118 (1989) (patent law). Regulating in-state businesses through licensing laws has never been considered such an area of dominant federal concern. Furthermore, those cases all concern state actions that directly interfered with the operation of the federal program.

In other words, to the extent that the states are relying on federal definition of lawful status–and a person who is granted deferred action is vested with the authorization to work lawfully–Texas would seem to be acting within its police powers to be obligated to grant the aliens work licenses. This is a more-than-concrete injury under Massachusetts v. EPA.

License suspension and revocation are significant sanctions. But they are typical attributes of a licensing regime. Numerous *1984 Arizona laws provide for the suspension or revocation of licenses for failing to comply with specified state laws. See, e.g., Ariz.Rev.Stat. Ann. §§ 5–108.05(D), 32–852.01(L), 32–1154(B), 32–1451(M), 41–2186 (West 2002). Federal law recognizes that the authority to license includes the authority to suspend, revoke, annul, or withdraw a license. See 5 U.S.C. § 551(9). Indeed, AWPA itself—on which the Chamber so heavily relies—provides that AWPA “certificates of registration” can be suspended or revoked for employing an unauthorized alien. 29 U.S.C. § 1813(a)(6). It makes little sense to preserve state authority to impose sanctions through licensing, but not allow States to revoke licenses when appropriate as one of those sanctions.

One key difference is that the Arizona law took the federal government’s description of a person’s lawful status without any challenge. Here, Texas challenges it.  If the states retain the authority to revoke licenses when a person lack work authorization, it stands to reason a state also has the authority to challenge a worker who does not have proper work authorization. That is, the deferred action was unconstitutional, and the resulting work authorization should not have been granted.

Further, in Whiting, Arizona required that employers consult with E-Verify to ensure that Congress’s design for work authorization was complied with.

Congress’s objective in authorizing the development of E–Verify was to ensure reliability in employment authorization verification, combat counterfeiting of identity documents, and protect employee privacy. 8 U.S.C. § 1324a(d)(2). Arizona’s requirement that employers operating within its borders use E–Verify in no way obstructs achieving those aims.

Here, arguably, the Executive is disregarding Congress’s design for who should be granted work authorization. In a backwards sense, Texas’s injury results from the Executive disregarding Congress’s policy towards who should receive deferred action, and thus receive a work authorization.

The more I look into this issue, the more Texas’s injury seems to be concrete, under Massachusetts v. EPA and Chamber of Commerce v. Whiting.

In the Chief Justice’s year-end report, we glean this fascinating trivia bit. From the Court’s opening in 1935, until the 1971, as a Justice was announcing an opinion, the Clerk would (literally) hand-down a copy of the opinion to the journalists waiting in front of the bench. Then the journalists would zip the opinion down the pneumatic tubes to the press room on the first floor, where they could hit the (literal) wire.

When the Court opened the doors of its new Courtroom in 1935, it also revised its procedure for issuing decisions. Under the new “hand-down” protocol, immediately before a Justice announced a decision in the Courtroom, the Clerk of the Court directed messengers to hand copies to a small group of journalists stationed in front of the bench. The journalists then dispatched the copies through the pneumatic tubes to their colleagues in the press booths one floor below, saving the messengers dozens of steps and precious minutes in communicating the news of Court actions.

The idea of the clerk handing out printed decision to scurrying journalists while the Court is in session is hard to imagine. Today, everyone has to sit so respectfully and quietly as the Justices announce their decision. Reports have to quietly excuse themselves through the side.

But one case was different from all others: Brown v. Board of Education.

For thirty-six years, virtually all of the Court’s decisions reached the press through those portals. A notable exception was the Court’s 1954 decision in Brown v. Board of Education. Chief Justice Warren made a point of delaying delivery of his short opinion until he had read it in full in open Court.

This is a fascinating history. The decision in Brown v. Board of Education was only 13 pages long in the U.S. Reports (347 U.S. 483-496), so it couldn’t have taken too long to read. But, Chief Justice Warren wanted to avoid the confusion of the media reporting on an incomplete version of the account. He also avoided the mess resulted after the decision in NFIB v. Sebelius were released well before Chief Justice Roberts finished reading his opinion. I’ve heard some grumblings that decisions should not be handed out until the oral pronouncement finishes, but I think this tradition is too hard to break.

The tradition of the upstairs-hand-down ended with the installation of the Court’s curved bench in 1971.

But not even things gray can stay, and the venerable steel hardware ultimately outlived its usefulness. In 1968, John P. MacKenzie, the Supreme Court reporter for the Washington Post, described the Court’s process of transmitting decisions as “perhaps the most primitive . . . in the entire communications industry.” The Court’s pneumatic age ended in 1971, when Chief Justice Burger authorized the removal of the pneumatic tube system at the same time that he introduced the Court’s familiar curved bench.

Well done Chief Justice Burger.

 

 

On these pages I have ranted for years about PACER, and its absurd practice of charging per page. Beyond the impact on access to justice–how can it be that people need to pay to view public records–the balkanized approach of PACER makes legal analytics extremely difficult. Researchers have had to develop elaborate scrapers of dozens of different sites, that often change without notice, all while paying a dime a page. Sophisticated natural language processing was developed to deal with different clerks in different regions. In short, it’s a mess.

But as bad as it is for the district and circuit courts, it is EVEN worse for the Supreme Court. Today, there is NO way to get any filings from SCOTUS cases from the Supreme Court’s web site. Only opinions and oral arguments are available. Unless a cert petition or brief or amicus is posted by the ABA or SCOTUSBlog, it is impossible to get them. (And scraping either of those sites conflict with their terms of service).  The only way to obtain copies of all cert petitions is by retrieving the microfiche through a LOC depository. I’m not joking. I actually looked into the feasibility of scanning all of the microfiche at the University of Texas, at Austin. It was so expensive, I quickly abandoned the project.

However, 2016 holds some hope. In the Chief Justice’s year-end report on the Federal Judiciary–written in his usual charming and engaging manner–we learn that the Supreme Court will soon implement an electronic filing system that allows ALL pleadings to be downloaded at no cost.

The Supreme Court is currently developing its own electronic filing system, which may be operational as soon as 2016. Once the system is implemented, all filings at the Court—petitions and responses to petitions, merits briefs, and all other types of motions and applications—will be available to the legal community and the public without cost on the Court’s website. Initially, the official filing of documents will continue to be on paper for all parties in all cases, with the electronic submission an additional requirement for parties represented by attorneys. Once the system has operated effectively for some time and the Supreme Court Bar has become well acquainted with it, the Court expects that electronic filing will be the official means for all parties represented by counsel, but paper filings will still be required. Parties proceeding pro se will continue to submit  documents only on paper, and Court personnel will scan and upload those documents to the system for public access. The Court will provide more information about the details of the system, including the process for attorneys to register as authorized filers, in the coming months.

This is remarkable. First, we will get *all* filing: petitions for certiorari, merits briefs, and (presumably) all amicus briefs. Second, we even get the elusive IFP petitions, which to date were only available on microfiche. Third, they’re free! No more paying per page. One can only hope that these documents will be uploaded retroactively for cases already decided.

The potential here is remarkable. Now,we can scan through and download, all of the petitions for cert, all of the briefs, and amici. This will enable massive computational research. Perhaps there will even be a method for bulk download, rather than having to deal with messy scrapers.

The LexPredict team has been researching other methods of forecasting cases, and our next target was analyzing briefs. This will make such research viable and sustainable.

Kudos to the Court for taking this lead, however late.

Alas, the Chief shows no concern for the fact that PACER continues to charge for access, describing the fee as “modest.”

But this system is not limited to attorneys. By logging onto the Public Access to Court Electronic Records (PACER) system, and paying a modest user fee—in many cases, no fee—members of the public from Alaska to Florida can instantly access and review federal court filings located in courthouses across the Nation. PACER has enabled thousands of reporters, academics, and members of the public to find court records in a way that would have been impossible before the advent of CM/ECF.

Further, the Chief explains why the various PACER sites are so balkanized:

The federal judiciary also faces implementation challenges in light of its conscious decision to maintain a decentralized system of organization. For 225 years, since the enactment of the Judiciary Act of 1789, the federal courts in each state have exercised a fair degree of operational independence to ensure that they are responsive to local challenges, capabilities, and needs. The individual courts have had considerable latitude to experiment with new technologies, which has led to some courts initiating local innovations. When the Administrative Office plans a nationwide initiative, such as Next Generation CM/ECF, it must devote extensive resources to conferring with judges, court executives, and lawyers across the country, examining what has worked on a local basis, and identifying features that should be adopted nationally. These deliberations ensure that the implementation of a national system takes due account of local experience, including both successes and failures.

Progress takes time.