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FantasySCOTUS.net Predictions: Is the Individual Mandate Constitutional?

December 6, 2011
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

November 7, 2011
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

November 5, 2011
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

October 14, 2011
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

October 12, 2011
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.

Justices Scalia and Breyer Share Their Views on the Constitution with the Senate Judiciary Committee

October 10, 2011
In a rare  moment of off-the-bench candor, Justice Scalia and Justice Breyer testified before the Senate Judiciary Committee last week to discuss their divergent views on how to interpret the U.S. Constitution.  While Scalia advocated his Originalist perspective that the Court should base their reading of the Constitution on the framers’ original intent, Breyer believes that courts should look to the underlying values of the text and apply them to the modern world, calling it “the living Constitution.” This prompted Scalia to quip, “I’m hoping that the living Constitution will die.” Scalia’s comment, though some may read it as the kind of sharp antagonism found in his dissenting opinions, was actually more of a friendly jab. Scalia and Breyer may be rivals on the bench, but these two Justices joked with one another and even helped support each other’s arguments during the course of the hearing.  To hear some audio clips from their testimony, you can listen to the NPR report here.

The Supreme Court hears arguments for Howes v. Fields

October 7, 2011
This Monday, the Supreme Court heard oral arguments for Howes v. Fields, a case dealing with the 5th Amendment right to be free from self-incrimination and the infamous Miranda warning. For a summary on the case’s background, you can check out this Harlan Institute FantasyCast. In short, the case arose when an inmate at a Michigan prison was removed from his cell and questioned about conduct that occurred outside the prison. During this interview, he made incriminating statements that were later used against him in court. Fields challenged this outcome by arguing that his 5th Amendment rights were violated when he was not read hisMiranda rights before the interrogation. John Bursch, the Solicitor General of Michigan, represented the petitioner Warden Carol Howes. He argued that a Miranda warning is only necessary when a person is “in custody” of police, and because Fields was told he was free to leave at any time, he was not in police custody for Miranda purposes. Justice Sotomayor gave Bursch a hypothetical, asking him whether Fields would have been considered to be “in custody” if he hadn’t been told he were free to go. The Petitioner argued that there were other factors that would allow Fields to reasonably believe that he was not being restrained, for example, the door was not locked and the interview was held in a conference room and not an interrogation room. Justice Sotomayor later challenged this argument again, asking “shouldn’t the presumption be that if you’re forced to go to another place, you’re in custody?”  Ginger Anders, Assistant to the U.S. Solicitor General, argued on behalf of the petitioner as well, advancing many of the same arguments. Representing the respondent, inmate Randall Fields, Elizabeth Jacobs argued that Fields’ rights were violated when he was not informed that he had the right to avoid self-incrimination before the interview: “Telling him he is free to go is not a substitute for Miranda.” Justice Alito raised some questions, asking why an inmate would be considered “in custody” if he told officers he wanted to stay and discuss the allegations after being told he was free to leave. You can hear a full audio recording of the oral arguments on Oyez.org.

Fifth Circuit Rules on Students’ Religious Speech Rights

September 28, 2011
This week, the Fifth Circuit Court of Appeals handed down an opinion for Morgan v. Swanson and upheld the First Amendment right of four Texas elementary students to hand out religious materials to their classmates. The parents of the four Evangelical Christian children brought the lawsuit against the school’s principal and other school officials after the children were prevented, on several occasions, from handing out items like candy canes and pencils with religious messages attached. In bringing the lawsuit, the parents argued that the principal’s actions had interfered with the students’ First Amendment rights of free speech and free exercise of religion. In an en banc hearing– where all the Circuit Court judges, rather than the usual 3-judge panel, hear and decide the case — the Fifth Circuit ruled that the First Amendment does give the students the right to pass out religious messages to their classmates and that the principal violated that right by “discriminating against student speech solely on the basis of religious viewpoint,” as Judge Jennifer Walker Elrod wrote. The rest of the decision dealt with the concept of qualified immunity, which may shield several of the school’s officials from being held personally liable. To learn more about qualified immunity and absolute immunity, check out our page for the upcoming Supreme Court case Rehberg v. Paulk, which deals with the related issue of immunity for government officials.

Bill of Rights Institute Video on Representative Government

September 20, 2011
Do you know the difference between a democracy and a republic? Of course, the United States is a “government of the people by the people and for the people,”  but what does that mean? The Bill of Rights Institute put together a great video on representative government that answers those questions and more. You might be surprised about how often the word “democracy” is misused and who is misusing it!

Secretary of Education Arne Duncan Announces New Private/Public Technology-Based Learning Initiative

September 19, 2011
In a Wall Street Journal Op Ed this morning, Secretary of Education Arne Duncan and Netflix CEO Reed Hastings announced a new “unique public-private partnership called Digital Promise.” Digital Promise, Duncan and Reed write, is meant “to advance breakthrough technologies that transform teaching and learning in and out of the classroom, while creating a business environment that rewards innovation and entrepreneurship.” Digital Promise encourages a market-oriented approach to technology-based learning by mixing public money and private leadership. The ultimate goal of the partnership is to provide a “more efficient market for education technology.” Secretary Duncan notes that Digital Promise is modeled after successful companies like Netflix, which use “low-cost experimentation” to improve outputs. By using this approach, Digital Promise hopes to identify those educational technology tools which help students, and abandon those which do not. Organizations like Digital Promise and the Susan Crown Exchange help refocus the debate over 21st Century learning. The question America’s educators should be asking is no longer whether computers should play a role in education; for better or worse, that question was long ago answered. Rather, Digital Promise focuses on finding ways to make the most efficient use of what has become an ubiquitous part of the American classroom. The Harlan Institute seeks to accomplish this same goal by using new technology to connect students with timeless constitutional lessons.