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FantasySCOTUS.net Predictions: Is the Individual Mandate Constitutional?

It’s the question we all want to know–what will the Supreme Court do with the Patient Protection and Affordable Care Act of 2010. We have crowdsourced a daily prediction tracker for the four consolidated cases. In real-time, the prediction tracker calculates how the 11,000+ members of FantasySCOTUS.net will vote on this soon-to-be landmark case.

At this early stage–three months before oral arguments with a limited sample size–the members of FantasySCOTUS.net are predicting that the individual mandate will not survive the Supreme Court.

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.

  • 87.18% predict that the suit can proceed, notwithstanding the AIA.
  • 12.82% predict that the suit will be bared by the AIA (this is the position adopted by Judge Kavanaugh on the D.C. Circuit)
The most critical question is whether the individual mandate exceeds Congress’ powers, and is unconstitutionalThe 11th Circuit held that the mandate exceeded Congress’s powers and is unconstitutional.

  • 52.94% predict that the Court will find the mandate unconstitutional.
  • 47.06% predict that the Court will uphold the mandate.
  • Of particular interest, 54.9% 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 73.2%, 75.6%, 82.7%, and 76.8% respectively.
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.

  • 76.81% predict that the Court will sever the mandate from PPACA.
  • 23.19% predict that the Court will find that the mandate is not severable.
  • Of note, 73.2% of members predict that Justice Kennedy will vote to find the mandate severable.
The final question is whether the expansion of Medicaid is constitutional. The 11th Circuit found that the expansion was in fact constitutional.

  • 71.64% predict that the Court will uphold the Medicaid expansion.
  • 28.36% predict that the Court will find the Medicaid expansion unconstitutional.

These predictions are still rather preliminary. Most members do not offer predictions until after oral arguments–in this case nearly 6 hours of discussion. We will provide updates on this significant case throughout the course of the Term. To learn more about the FantasySCOTUS.net crowdsourced methodology, please see my co-authored article in the Northwestern Journal of Technology and Intellectual Property.

What do you think the Court will do? Sign up today and predict! You can win a $200 Amazon.com Gift Card by making predictions.

Oral Arguments for M.B.Z. v. Clinton: the “Live”-Blog

Does post-facto live-blogging defeat the purpose? Perhaps, but as the Supreme Court doesn’t allow electronics, I had to take notes on today’s oral arguments the old fashioned way. Check out this FantasyCast for background on the case, then read on for the play-by-play and a summary by each of the Harlan Fellows.

9:09am – Just saw the Zivotofsky family in the coatroom — That counts as a SCOTUS celebrity sighting, right?

9:15am – We take our seats as the clerks drop off piles of papers and mugs of coffee at each Justice’s seat.

10:00am – On the dot! Showtime: Buzzing noise, Justices file in, gavel bangs, “Oyez, oyez, oyez!”

10:03am – Counsel for the Petitioner, Nathan Lewin, steps up and begins arguing that Congress has the power to make such passport decisions as they did in this case; saying Congress and the President share foreign policy decision-making power.

10:07am – Justice Ginsburg asks:”[In this case,] why does Congress trump the Executive?” Lewin answers: because this case is about a passport, not a foreign policy decision.

10:11am – Petitioner argues that Congress passed the law using their power to regulate immigration and international commerce.

10:14am – Justice Scalia wonders why this is any of the Court’s business and says he doesn’t want to interfere with “inter-branch hand-wrestling.” Lewin argues that the Court has the power to “scrutinize” a President’s foreign policy rationale. Justice Scalia provokes some courtroom chuckling: “Congress has many clubs with which to beat the Executive.”

10:20am – Justice Kagan lays down the law: As she sees it, this passport statute had nothing to do with Congress’ power to regulate immigration and was instead a foreign policy decision. Tells Lewin, “Prove to me that I’m wrong,” to which he quips, “Well, you’re wrong!”

10:21am – Lewin claims the statute, in requiring the State Department to, upon request, list Jerusalem as part of Israel, was not intended to create a “political brouhaha.” Hushed murmurs and raised eyebrows around the courtroom.

10:23am – Lewin notes that the statute “does say that the individual passport holder can choose to say Israel or can keep it as Jerusalem, and if he’s born before 1948 he can say Palestine,” to which Justice Kagan responded: “you’d have to be very old to say Palestine.” 78 year old Justice Ginsburg quickly responded “not all that old” which brought proceedings to a brief halt as the entire courtroom–including the bench–doubled over in laughter.

10:28am – Ginsburg brings up the political question issue; Petitioner denies the doctrine’s relevance and reserves the rest of his time for rebuttal. Now it’s Solicitor General, Donald B. Verrilli, Jr.’s turn to argue for the Respondent.

10:30am – Verrilli challenges the Petitioner’s basic argument that Congress and the President have co-equal foreign affairs power; argues that the Constitution gives exclusive power to the Executive.

10:37am – Chief Justice Roberts and Justice Ginsburg redirect the questioning to the political question doctrine, even though the Respondent focuses mainly on the merits — the separation of powers issue.

10:41am – Justice Kennedy: “It’s always awkward for us to tell Counsel what’s in their best interest…”; he wonders why Verrilli isn’t arguing that the case is non-justiciable, as the D.C. Circuit Court’s opinion held.

10:44am – Roberts asks a hypothetical: Would Congress be infringing on the President’s power if they required a passport to say “Jerusalem, Israel (disputed)”? Respondent says yes, to Roberts’ surprise (as this declaration would be consistent with State Dept. policy).

10:45am – Scalia pushes back a bit: The President is the “sole instrument” of foreign policy, but doesn’t Congress have some power too?

10:54am – Justice Breyer asks for a word on the political question issue, which the Respondent has steered away from. Justice Sotomayor joins in, pointing out that whether they label this issue a “political question” is important.

10:58am – Roberts gives the Respondent a few more minutes to field questions on the political question topic. Justice Sotomayor asks the SG: if twelve nations all announced that they would declare war against the United States if the President recognized the sovereignty of another nation, would Congress be powerless to act? The SG responded that, under those circumstances, he did not believe that the President would recognize a foreign nation. Quick as always with a retort, Justice Scalia asked him to imagine “We have a foolish President” and added sarcastically “… contrary to our entire history.”

11:00am – Lewin returns for a 6 minute rebuttal, emphasizes that a passport is merely a form of personal identification, not a “diplomatic communication” as the Respondent argued.

11:05am – Justices Thomas, Breyer, and Kennedy get fidgety in their high-backed reclining chairs as Sotomayor asks a final hypothetical.

11:07am – End of arguments, while another case is up after MBZ, there’s a “mass exodus” out of the courtroom. (Credit to the AU Law Professor sitting next to me for that pun.)

Allie’s thoughts: Lewin did an excellent job making a tough case for the Petitioner. Ultimately though, it seems like a majority of the Supremes were not on board with his argument that Congress and the President have equal foreign affairs power under the Constitution and that the “passport statute” was not a foreign policy declaration. What will be interesting is how the Court will deal with the political question issue, one that the SG continually move away from. There is some sense that because this action involved an express conflict between branches, rather than a premature request for the Court to decide the issue, the case will be decided on its merits.

Charlie’s thoughts: The Justices pressed the Solicitor General hard to find a limit to his argument (is the President truly the sole organ of American foreign policy?) and seemed surprised at some of his responses. However, to the extent that the Court’s opinion can be gleaned from oral arguments, it looked this morning like at least a majority of the Justices agreed with the Government that § 214(d) unconstitutionally infringes upon the President’s ability to shape American foreign policy. Justice Kennedy seemed to announce the Court’s mood early when he referred to the petitioner’s argument as a “crabbed” interpretation of the President’s foreign policy power.

The Court has posted the transcript for today’s argument here.

Oral arguments in Rehberg v. Paulk and M.B.Z. v. Clinton

The Supreme Court heard arguments last week in Rehberg v. Paulk to decide “whether a government official who acts as a ‘complaining witness’ by presenting perjured testimony against an innocent citizen is entitled to absolute immunity from a Section 1983 claim for civil damages.” Timothy Coates at SCOTUSBlog.com provides a great recap of the arguments and concludes that, despite what Rehberg argued, the “case may turn less on the niceties of the common law than the realities of common practice in the criminal courts.”

This Monday, the Court will hear arguments in M.B.Z. v. Clinton to resolve the issues of: 1) whether the political question doctrine deprives federal courts of jurisdiction to hear a case involving whether the Secretary of State must list “Jerusalem, Israel” as the place of birth for Americans born in Jerusalem; and 2) if not, whether a statute directing the same infringes upon the President’s foreign policy prerogatives. Allie Myers and Charlie Kruly of the Harlan Institute will be attending oral arguments on Monday morning and will relay their impressions later that day. In the meantime, be sure to check out the Harlan Institute’s Fantasy Cast for MBZ; also check out Professor Ed Harris’s argument preview at Oyez.com for a concise analysis of the issues and the potential ramifications of MBZ.

Westlaw Sponsors FantasySCOTUS

FantasySCOTUS is proud to be sponsored once again by legal research giant Westlaw. Players who have already been scrutinizing their predictions this term have likely noticed that, thanks to Westlaw, FantasySCOTUS provides links to Westlaw databases for cert petitions, briefs, transcripts and opinions for each case on the Court’s docket. Additionally, Westlaw has helped spread FantasySCOTUS to law students around the country through the TWEN research portal. All of this has helped make FantasySCOTUS, without question, the closest you can come to being a Supreme Court Justice without the advice and consent of the Senate.

Oral arguments in Florence v. Board of Chosen Freeholders

The Supreme Court heard oral argument today in Florence v. Board of Chosen Freeholders on the issue of whether “the Fourth Amendment permits a jail to conduct a suspicionless strip search of every individual arrested for any minor offense no matter the circumstances.” The Petitioner, Albert Florence, was arrested on the erroneous belief that he had failed to pay a routine fine. Upon his arrival at the local jail, Florence was strip searched.

Professor Orin Kerr of the George Washington University Law School attended oral arguments today and posted his thoughts on SCOTUSblog.com. Professor Kerr reports that the Justices seemed “skeptical” of drawing a line that would permit strip searches for some arrests but not for others. For instance, Professor Kerr notes, many of the Justices seemed unsure about what would qualify as a “major crime” (for which a strip search would be permitted) and a “minor crime” (for which, Florence argued, the Court should establish a case-by-case test).

It is, of course, always difficult to predict the Court’s eventual opinion simply from oral arguments. However, based on some of today’s questioning, it looks as if the Court may uphold the Burlington County jail’s universal strip search policy.

The transcript for today’s argument is available here.


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