The Dynamic Process of Legislative History: The New Norm of Ad Hoc Legislating ~ Article on “How Legislative Procedure Shapes Legislative History”

Drexel University Earle Mack School of Law Legal Research Center Research and Instructional Services Librarian John Cannan has authored an excellent article on the subject matter of the above headline in the latest issue (volume 105, number 2, Spring 2013, pages 131-173) of the American Association of Law Libraries’ (AALL’s) Law Library Journal:

A Legislative History of the Affordable Care Act: How Legislative Procedure Shapes Legislative History

The article’s abstract reads:

Using the health care legislation passed in 2010 as a model to show how legislative procedure shapes legislative history, this article posits that legislative procedure has changed, making the traditional model of the legislative process used by law librarians and other researchers insufficient to capture the history of modern legislation. To prove this point, it follows the process through which the health care legislation was created and describes the information resources generated. The article concludes by listing resources that will give law librarians and other researchers a grounding in modern legislative procedure and help them navigate the difficulties presented by modern lawmaking.

Cross-posted at Law Library Blog.

Executive Office of the President May 9, 2013 Memorandum “Open Data Policy — Managing Information as an Asset”

See:

Memorandum for the Heads of Executive Departments and Agencies (M-13-13) dated May 9, 2013 — SUBJECT: Open Data Policy — Managing Information as An Asset

The accompanying Executive Order of May 9, 2013 — Making Open and Machine Readable the New Default for Government Information — is here and reads as follows:

 

The White House

Office of the Press Secretary

For Immediate Release
May 09, 2013

Executive Order — Making Open and Machine Readable the New Default for Government Information

EXECUTIVE ORDER

- – - – - – -

MAKING OPEN AND MACHINE READABLE THE NEW DEFAULT
FOR GOVERNMENT INFORMATION

By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows:

Section 1. General Principles. Openness in government strengthens our democracy, promotes the delivery of efficient and effective services to the public, and contributes to economic growth. As one vital benefit of open government, making information resources easy to find, accessible, and usable can fuel entrepreneurship, innovation, and scientific discovery that improves Americans’ lives and contributes significantly to job creation.

Decades ago, the U.S. Government made both weather data and the Global Positioning System freely available. Since that time, American entrepreneurs and innovators have utilized these resources to create navigation systems, weather newscasts and warning systems, location-based applications, precision farming tools, and much more, improving Americans’ lives in countless ways and leading to economic growth and job creation. In recent years, thousands of Government data resources across fields such as health and medicine, education, energy, public safety, global development, and finance have been posted in machine-readable form for free public use on Data.gov. Entrepreneurs and innovators have continued to develop a vast range of useful new products and businesses using these public information resources, creating good jobs in the process.

To promote continued job growth, Government efficiency, and the social good that can be gained from opening Government data to the public, the default state of new and modernized Government information resources shall be open and machine readable. Government information shall be managed as an asset throughout its life cycle to promote interoperability and openness, and, wherever possible and legally permissible, to ensure that data are released to the public in ways that make the data easy to find, accessible, and usable. In making this the new default state, executive departments and agencies (agencies) shall ensure that they safeguard individual privacy, confidentiality, and national security.

Sec. 2. Open Data Policy. (a) The Director of the Office of Management and Budget (OMB), in consultation with the Chief Information Officer (CIO), Chief Technology Officer (CTO), and Administrator of the Office of Information and Regulatory Affairs (OIRA), shall issue an Open Data Policy to advance the
management of Government information as an asset, consistent with my memorandum of January 21, 2009 (Transparency and Open Government), OMB Memorandum M-10-06 (Open Government Directive), OMB and National Archives and Records Administration Memorandum M-12-18 (Managing Government Records Directive), the Office of Science and Technology Policy Memorandum of February 22, 2013 (Increasing Access to the Results of Federally Funded Scientific Research), and the CIO’s strategy entitled “Digital Government: Building a 21st Century Platform to Better Serve the American People.” The Open Data Policy shall be updated as needed.

(b) Agencies shall implement the requirements of the Open Data Policy and shall adhere to the deadlines for specific actions specified therein. When implementing the Open Data Policy, agencies shall incorporate a full analysis of privacy, confidentiality, and security risks into each stage of the information lifecycle to identify information that should not be released. These review processes should be overseen by the senior agency official for privacy. It is vital that agencies not release information if doing so would violate any law or policy, or jeopardize privacy, confidentiality, or national security.

Sec. 3. Implementation of the Open Data Policy. To facilitate effective Government-wide implementation of the Open Data Policy, I direct the following:

(a) Within 30 days of the issuance of the Open Data Policy, the CIO and CTO shall publish an open online repository of tools and best practices to assist agencies in integrating the Open Data Policy into their operations in furtherance of their missions. The CIO and CTO shall regularly update this online repository as needed to ensure it remains a resource to facilitate the adoption of open data practices.

(b) Within 90 days of the issuance of the Open Data Policy, the Administrator for Federal Procurement Policy, Controller of the Office of Federal Financial Management, CIO, and Administrator of OIRA shall work with the Chief Acquisition Officers Council, Chief Financial Officers Council, Chief Information Officers Council, and Federal Records Council to identify and initiate implementation of measures to support the integration of the Open Data Policy requirements into Federal acquisition and grant-making processes. Such efforts may include developing sample requirements language, grant and contract language, and workforce tools for agency acquisition, grant, and information management and technology professionals.

(c) Within 90 days of the date of this order, the Chief Performance Officer (CPO) shall work with the President’s Management Council to establish a Cross-Agency Priority (CAP) Goal to track implementation of the Open Data Policy. The CPO shall work with agencies to set incremental performance goals, ensuring they have metrics and milestones in place to monitor advancement toward the CAP Goal. Progress on these goals shall be analyzed and reviewed by agency leadership, pursuant to the GPRA Modernization Act of 2010 (Public Law 111-352).

(d) Within 180 days of the date of this order, agencies shall report progress on the implementation of the CAP Goal to the CPO. Thereafter, agencies shall report progress quarterly, and as appropriate.

Sec. 4. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executive department, agency, or the head thereof; or

(ii) the functions of the Director of OMB relating to budgetary, administrative, or legislative proposals.

(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

(d) Nothing in this order shall compel or authorize the disclosure of privileged information, law enforcement information, national security information, personal information, or information the disclosure of which is prohibited by law.

(e) Independent agencies are requested to adhere to this order.

BARACK OBAMA

Some approving commentary — Alexander B. Howard, “The Best Thing Obama’s Done This Month: His executive order to open government data is a really big deal,” Slate.com — is here.

Cross-posted at Law Library Blog.

Congressional Research Service (CRS) Report on State Legalization of Recreational Marijuana

This helpful, timely, April 5, 2013 report

  • State Legalization of Recreational Marijuana: Selected Legal Issues [R43034]
    By Todd Garvey, Legislative Attorney & Brian T. Yeh, Legislative Attorney

is here.

Hat tip to Law Librarian Blog.

Cross-posted at Law Library Blog.

“Judges and Their Papers” by Kathryn A. Watts, Univ. of Washington School of Law — Who should own a federal judge’s papers?

University of Washington (UW) School of Law Associate Professor Kathryn A. Watt’s subject, thought-provoking paper is here.

Hat tip to Law Librarian Blog.

Cross-posted at Law Library Blog.

A Helpful Resource (that’s been around a while): AALL’s Legislative Action Center

A helpful resource on current U.S. federal and state legislative activity — which has been around a while (since October 2011, actually, per this posting) — is the American Association of Law Libraries’ (AALL’s):

Legislative Action Center (LAC)

Content at the LAC frequently includes convenient “Advocacy One-Pagers” — see, for example:

  • here ["Urge your Representative to Support the Access to Congressionally Mandated Reports Act (H.R. 1380)], &
  • here [PDF of Advocacy One-Pager "Access to Congressionally Mandated Reports Act"]

The LAC is helpfully searchable too, per the following layout:

Search within Government Relations

[Advanced Search]

Cross-posted on Legal Research Plus.

Cross-posted on Law Library Blog.

A plea to scholars

Dear scholars,

Please pay attention to where you place your scholarship.   Are you aware of the cost of some journal subscriptions?  One example, of many, is the Journal of Law & Society.  The Stanford Law Library used to get this print subscription with discounted rate and paid $161 for the current 2013 print subscription. We just received word from Hein (who handles the subscription for us) that the publisher will begin to charge us the full price with an additional payment of $851.00.

What made me think of this was the receipt yesterday of a new publication from my hero Carl Malamud.  Carl has become quite the pamphleteer and his most recent is On Crime and Access to Knowledge.    I urge you all to read it.

In the pamphlet, Carl tells the story of the late Aaron Swartz and discusses JSTOR, PACER, and broader information access issues such as Carl’s heroic efforts to make public safety documents, such as building codes, available to the public.

But on the issue of what Aaron did with JSTOR, Carl makes this important point:

. . . One must remember that JSTOR is a messenger, an intermediary, and if there is fault here, that fault is ultimately the fault of the scholars who wrote those articles and allowed them to be locked up.  It was a corruption of scholarship when the academy handed over copyright to knowledge so that it could be rationed in order to extract rents.

Please think twice before you place a piece of your scholarship with a particular journal.  Find out what it costs to subscribe to the journal; find out what databases include its text (your librarian can help with this); ask the journal if you can retain ownership and publication rights.  And ask yourself:  Do you really want your scholarship tightly locked up behind expensive pay walls?

 

New Congressional Research Service (CRS) Report on the Recess Appointment Power

The Congressional Research Service (CRS) recently released a new report
The Recess Appointment Power After Noel Canning v. NLRB: Constitutional Implications
By Todd Garvey, Legislative Attorney
&
David H. Carpenter, Legislative Attorney
March 27, 2013 (R43030)

The summary reads as follows:

Under the Appointments Clause, the President is empowered to nominate and appoint principal officers of the United States, but only with the advice and consent of the Senate. In addition to this general appointment authority, the Recess Appointments Clause permits the President to make temporary appointments, without Senate approval, during periods in which the Senate is not in session. On January 4, 2012, while the Senate was holding periodic “pro forma” sessions, President Obama invoked his recess appointment power and unilaterally appointed Richard Cordray as Director of the Consumer Financial Protection Bureau (CFPB) and Terrence F. Flynn, Sharon Block, and Richard F. Griffin Jr. as Members of the National Labor Relations Board (NLRB).

The President’s recess appointments were ultimately challenged by parties affected by actions taken by the appointed officials, and on January 25, 2013, the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) became the first court to evaluate the merits of the President’s appointments. In a broad decision entitled Noel Canning v. National Labor Relations Board, the court invalidated the appointment of all three NLRB Board Members. In reaching its decision, the D.C. Circuit concluded that under the Recess Appointments Clause, the President may only make recess appointments during a formal intersession recess (a recess between the end of one session of Congress and the start of another), and only to fill those vacancies that arose during the intersession recess in which the appointment was made.

Although the D.C. Circuit’s actual order in Noel Canning directly applies only to the NLRB’s authority to undertake the single action at issue in the case, the court’s interpretation of the President’s recess appointment authority could have a substantial impact on the future division of power between the President and Congress in the filling of vacancies. If affirmed by the Supreme Court, the likely effect of the reasoning adopted in Noel Canning would be a shift toward increased Senate control over the appointment of government officials and a decrease in the frequency of presidential recess appointments.

This report begins with a general legal overview of the Recess Appointments Clause and a discussion of applicable case law that existed prior to the D.C. Circuit’s decision in Noel Canning. The report then analyzes the Noel Canning opinion and evaluates the impact the case could have on the roles of the President and Congress in the appointments context. A companion CRS report, Practical Implications of Noel Canning on the NLRB and CFPB, provides a detailed discussion of the impact the Noel Canning decision may have on the functioning of the NLRB and the CFPB.

For some earlier posts on the recess appointment power, please see here and here.

Cross-posted in Law Library Blog.

Legislative Research & Intent LLC (LRI) Launches “Online Store” Research

Legislative Research & Intent LLC (LRI) has launched an

“Online Store”

and California legislative history and legislative intent research is reportedly available to academic patrons (law school faculty and students) at no charge.

Content is described as follows:

  • 1943-2006
    Every regular session California bill that became law from 1943 through 2006 is covered in this part of our unique, groundbreaking database. No other service offers this comprehensive coverage. While the number of available files varies per bill, we provide one or more sources of legislative history for every bill that passed.
  • 2007-Current
    Selected, regular session California bills that became law from 2007 to current are covered in this part of our database. Because it consists of files from our precompiled legislative histories, multiple files are provided for each bill. If your bill is not found, consider our Custom or Core reports, or contact us.

Carolina Rose

Carolina C. Rose, J.D., President
Legislative Research & Intent LLC
1107 9th Street, Suite 220
Sacramento, CA 95814
(916) 442-7660 Phone
(800) 530-7613 Toll Free
(916) 442-1529 Fax
Carolina.Rose@lrihistory.com
www.lrihistory.com

has very kindly provided the following updated information about LRI’s offer here.

Cross-posted on Law Library Blog.

LLRX.com Posts “Statistics Resources and Big Data on the Internet 2013″

LLRX.com has posted

Statistics Resources and Big Data on the Internet 2013

Hat tip to ResourceShelf.com.

Cross-posted on Law Library Blog.

New Congressional Research Service (CRS) Report: “The Freedom of Information Act (FOIA): Background and Policy Options for the 113th Congress”

The Congressional Research Service (CRS) earlier this month released and posted a valuable new Freedom of Information Act (FOIA)-related report:

The Freedom of Information Act (FOIA): Background and Policy Options for the 113th Congress
By Wendy Ginsberg, Analyst in American National Government
March 8, 2013
R41933

Hat tip to Law Librarian Blog.

Cross-posted on Law Library Blog.