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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.