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Should courts give Congress the benefit of the doubt about the constitutionality of a statute that includes a provision for expedited judicial review?

Justice Scalia seems to doubt that benefit of the doubt. If Congress includes various provisions to allow courts to quickly assess whether a law is constitutional, it does raise doubts about whether Congress actually thought it was constitutional.

LAMB: All right. Let me read this to you, ”The modern congress sails close to the wind all the time. Federal statutes today often all but acknowledge their questionable constitutionality with provisions for accelerated judicial review for standing on the part of the members of congress, and even for fallback disposition, should the primary disposition be held unconstitutional.”

SCALIA: Right.

LAMB: I want to go back to that original thing, statement, ”The modern congress sails close to the wind all the time.”

SCALIA: Yes. That followed upon our statement that, traditionally, Congress is – you assume the constitutionality of any statute that Congress enacts because it is assumed that Congress would not – indeed if there is even constitutional doubt, you give the Congress the benefit of the doubt.

In recent years however, it’s more questionable whether Congress really is even thinking about the constitutionality and that passage recites the fact that this evident from the content of their statutes. I mean, who would have ever thought, in the 19th century for example, that congress would pass a statute that says, ”In the event the stuff we’re just said is unconstitutional, we have this other provision instead,” which is what congress has done.

I mean, that makes you wonder, are they really sure this stuff is constitutional? Have they really thought about it? And I think that comment was also made in response to the charge of ”judicial activism” which is a word that doesn’t mean anything really.

It just means that the person who uses it doesn’t agree with the decision. I mean, what is judicial activism? It is certainly not doing actively what judges ought to do. Is that judicial activism? I think not. And if a statute ought to be held unconstitutional it’s not judicial activism to call it unconstitutional.

It is interesting that the Affordable Care Act, which most knew from its outset was on a collision course with the Supreme Court, did not contain any expedited provisions (like the McCain Feingold BCRA had). David Bernstein blogged that an original version of HillaryCare included just such a provision. Alas, it seems the authors of the ACA did not take such concerns seriously.

 

Support the Harlan Institute’s Virtual Supreme Court

Dear Friends,

By donating $12 before the end of 2012, you can help send the winners of our inaugural Virtual Supreme Court competition to Washington, D.C. to celebrate Constitution Day 2013.

Over the last four years, through our innovative approach to online legal education with FantasySCOTUS, the Harlan Institute has taught thousands of high school students about our Constitution and the Supreme Court.

This year, students can compete in three great contests–Fantasy PredictionsFantasy Blog Posts and Badges, and our all new Virtual Supreme Court.

The Virtual Supreme Court, a collaboration with ConSource, asks students to consider whether the Fourteenth Amendment is color-blind in the context of Fisher v. University of Texas.

Teams of two students choose one side of the issue, write appellate briefs, and engage in oral arguments against other students using Google+ Hangouts. During the moot court sessions, Harlan and ConSource judges ask the students questions, and challenge them on their briefs.

This virtual competition allows students across the country to engage in cutting-edge constitutional issues

The grand prize for the top two students is a trip to Washington, D.C. to celebrate ConSource’s Constitution Day 2013. Members of the runner-up team will each receive an iPad.

I ask your help to support the prizes for these amazing students.

100% of your tax-deductible donation will be used to cover the costs of bringing the students to our nation’s capital.  The Harlan Institute has no salaried employees, and all of our overhead costs are covered by sponsorships.

I thank you for your support.

Sincerely,

Josh Blackman
President, The Harlan Institute
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The October 2012 Season of FantasySCOTUS Starts Today – Grand Prize: All-Expenses Paid Trip to Washington, D.C. for Constitution Day 2013

In honor of the start of the Supreme Court’s term today (the First Monday in October!), the Harlan Institute’s OT 2012 season begins today. We are offering offering three contests this season: Fantasy Predictions, Fantasy Blogs & Badges, and our Virtual Supreme Court–the grand prize is an all-expenses paid trip to Washington, D.C. for Constitution Day 2013 for the winning team. Teachers–sign up today for our free programs.

Fantasy Predictions

FantasySCOTUS Predictions challenges students to make predictions about pending Supreme Court cases and write analytical blog posts exploring the different constitutional issues in the cases.

After studying cases currently pending before the Court with these lesson plans, students will make predictions about how each of the nine Justices will vote. Based on the individual student predictions, each class will submit a set of group predictions for each case. All predictions will be due by March, 31, 2012.

 

 

Fantasy Blogs & Badges

In addition to making predictions, each class will write a series of analytical blog posts for each case.  By signing up your class for FantasySCOTUS, you will automatically receive a free WordPress blog hosted at the Harlan Institute. All Blog posts will be due by March 31, 2013.

The winner of the FantasySCOTUS Blogs & Badges Contest will be determined based on the class with the most points from badges on May 15, 2015.

The top class in the United States will be awarded the “Chief Justice” Prize, an iPad.

 

Virtual Supreme Court

The Harlan Institute has partnered with The Constitutional Sources Project (ConSource) to host the inaugural Virtual Supreme Court competition. This competition offers teams of two high school students the opportunity to research cutting-edge constitutional law, write persuasive appellate briefs, argue against other students through video chats, and try to persuade a panel of esteemed attorneys during oral argument that their side is correct.

This year the competition focuses on Fisher v. University of Texas.

ResolvedIs the Fourteenth Amendment Color-Blind?

The members of grand-prize winning team, the Solicitors General of FantasySCOTUS, will receive a free trip, including airfare and one night of hotel accommodations, to Washington, D.C. to attend the ConSource Constitution Day celebration on September 17, 2013.

 

Nate Silver Writes on New York Times Blog About The Wise High Schoolers Who Predicted On FantasySCOTUS

Who came out looking better than the pundits? Interestingly, it may be high school students.

High school students participating in a Supreme Court “fantasy league”sponsored by the nonprofit Harlan Institute had been about evenly divided in predicting the court’s decision, with 57 percent thinking the mandate would be overturned and 43 percent saying it would be upheld.

Nor did the oral arguments in the case, which substantially affected the conventional wisdom, alter the students’ opinions much. Instead, they had seen the case as a tossup from the beginning.

I suspect these students would have been wise enough to avoid some of the counterintuitive speculation about the decision’s political effects that you will now be seeing on television.

Read more at 538 Blog.

Final FantasySCOTUS.net Predictions for Health Care Cases #SCOTUS

In approximately twelve hours, the Supreme Court will decide the consolidated Health Care Cases. Here are our final predictions.

The mandate is going to be struck down, and it will be severed.

The threshold question is whether the suit is permitted by the Anti-Injunction Act? The 11th Circuit held that suit was not barred by the AIA.

  • 94.28% predict that the suit can proceed, notwithstanding the AIA.
  • 5.72% predict that the suit will be barred by the AIA
Since oral argument, the numbers have increased somewhat as to whether the AIA will serve as a jurisdictional bar.
The most critical question is whether the individual mandate exceeds Congress’ powers, and is unconstitutional. The 11th Circuit held that the mandate exceeded Congress’s powers and is unconstitutional.

  • 57.14% predict that the Court will find the mandate unconstitutional.
  • 42.86% predict that the Court will uphold the mandate.
  • Of particular interest, 58.1% of members predict that Justice Kennedy will vote to strike down the mandate. Chief Justice Roberts, as well as Justices Scalia, Thomas, and Alito are all predicted to strike down the mandate at 72.1%, 82.9%, 89.0%, and 83.4% respectively.
Following oral argument, the percentage of voters who think the mandate will be struck down as jumped from about 51% to 57%. There has been a lot of movement in the last week or so.
Assuming the mandate is unconstitutional, the Court will next consider whether the mandate is severable from the remainder of the Patient Protection and Affordable Care Act of 2010. The 11th Circuit held that the mandate was severable.

  • 68.67% predict that the Court will sever the mandate from PPACA.
  • 31.33% predict that the Court will find that the mandate is not severable.
  • Of note, 67.5% of members predict that Justice Kennedy will vote to find the mandate severable.
The severability numbers have dropped, while the mandate unconstitutional numbers has increased. This tells me that people think that the entire ACA is going down.
The final question is whether the expansion of Medicaid is constitutional. The 11th Circuit found that the expansion was in fact constitutional.

  • 74.38% predict that the Court will uphold the Medicaid expansion.
  • 25.62% predict that the Court will find the Medicaid expansion unconstitutional.

This is really the sleeper issue. The numbers dropped right after argument, but have leveled off.


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