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The odds of the mandate’s being overturned have fluctuated some since then, but have risen even further in the past few weeks, according to the market.

Is such a large shift in sentiment justified? In my view, probably not. This may be another case of traders being overconfident about the value of their information, a property which has also been observed in the stock market.

To be clear, the evidence is that oral arguments do have some predictive power in forecasting Supreme Court decisions, according to a variety of empirical analyses from academic and legal scholars. It’s just a question of how much power they have, and how unambiguous the evidence about oral arguments is in any particular case.

These studies found that the side being asked more questions from the bench during oral arguments is more likely to lose the case, since this may indicate skepticism from the court about its position.

No citations to our work, alas.

The National Government has significant power to regulate immigration. With power comes responsibility, and the sound exercise of national power over immigration depends on the Nation’s meeting its responsibility to base its laws on a political will informed by searching, thought­ ful, rational civic discourse. Arizona may have under­ standable frustrations with the problems caused by illegal immigration while that process continues, but the State may not pursue policies that undermine federal law.

From Arizona v. United States.

At the AALS New Law Profs conference I attended this past weekend (the real reason I was in D.C., not just to sleep outside the Supreme Court), I attended a number of really interesting sessions on how to be a law prof. I also met a lot of really cool young academics, many of whom I’m sure I will work with for the next five decades of my life.

One panel though was particularly interest. The prof said that the two biggest obstacles to being a successful academic are perfectionism and procrastination.

Perfectionism, in that profs try to get their articles perfect. They spend too much time researching and figuring out how to finely craft the arguments. Once it is written, they go through endless rounds of revisions and comments and feedback from others, along with workshopping.

Procrastination, in that profs who have no set schedule (other than teaching for 4-6 hours per week) are unable to discipline themselves into writing on a consistent schedule. Especially during summer vacation, which lasts roughly four months.

I have neither problem. I do not strive for perfectionism. In fact, I eschew it. I have deeply internalized the notion of marginal cost. To approach 100% is not worth it. From 98%-99% is not worth it. Hell, I am happy with 95%. I don’t mind posting blog post and draft articles that aren’t even close to perfect. The benefit of getting your stuff out there early far exceeds the benefit of waiting till its perfect.

And, I don’t procrastinate. In fact, when I start doing something, I usually can’t stop. When I schedule time to do something I do it. Hell, I just wrote a 300 word blog post about not procrastinating.

A related (or unrelated) aside. I am listening to Walter Isaacson’s biography of Einstein. Einstein said, in hindsight, that he is glad that no university would hire him, and that he worked at the Swiss Patent Office. Had he worked in a university, he would have had to conform to the establishment, and shaped his research to fit into what everyone expected him to do. In other words, not rethink everything. By writing for himself while working at a Patent Examiner–where no one expected him to do anything–Einstein was able to totally challenge every assumption, and start from the ground up. Now you know the rest fo that story.

See, I always thought it gave Congress the exclusive power to define uniform rules of naturalization. Not so says Justice Scalia in his dissent in Arizona v. United States. And how does he get there–the Privileges and Immunities Clause. No not that one, the one in Article IV–and the one in the Articles of Confederation. I’ve never seen this argument before.

 There is no doubt that “before the adoption of the consti­ tution of the United States” each State had the author- ity to “prevent [itself] from being burdened by an influx of persons.” Mayor of New York v. Miln, 11 Pet. 102, 132– 133 (1837). And the Constitution did not strip the States of that authority. To the contrary, two of the Constitu­ tion’s provisions were designed to enable the States to prevent “the intrusion of obnoxious aliens through other States.” Letter from James Madison to Edmund Randolph (Aug. 27, 1782), in 1 The Writings of James Madison 226 (1900); accord, The Federalist No. 42, pp. 269–271 (C. Rossiter ed. 1961) (J. Madison). The Articles of Confeder­ation had provided that “the free inhabitants of each of these States, paupers, vagabonds and fugitives from jus­ tice excepted, shall be entitled to all privileges and im­ munities of free citizens in the several States.” Articles of Confederation, Art. IV. This meant that an unwelcome alien could obtain all the rights of a citizen of one State simply by first becoming an inhabitant of another. To remedy this, the Constitution’s Privileges and Immunities Clause provided that “[t]he Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” Art. IV, §2, cl. 1 (emphasis added). But if one State had particularly lax citizenship standards, it might still serve as a gateway for the entry of “obnoxious aliens” into other States. This problem was solved “by authorizing the general government to establish a uniform rule of naturalization throughout the United States.” The Federalist No. 42, supra, at 271; see Art. I, §8, cl. 4. In other words, the naturalization power was given to Con­ gress not to abrogate States’ power to exclude those they did not want, but to vindicate it.

Scalia’s arguments cite all original sources, which tells me that (likely) this is an argument he (or his clerks) hatched up. They may be in Amici or law review articles. I don’t know.

Scalia also cites the first naturalization act passed (which I cited in my work on Original Citizenship), but notes that the Feds did not regulate “immigration” (contradistinguished from naturalization) until 100 years after the Founding:

One would conclude from the foregoing that after the adoption of the Constitution there was some doubt about the power of the Federal Government to control immigra­ tion, but no doubt about the power of the States to do so. Since the founding era (though not immediately), doubt about the Federal Government’s power has disappeared. Indeed, primary responsibility for immigration policy has shifted from the States to the Federal Government. Con­ gress exercised its power “[t]o establish an uniform Rule of Naturalization,” Art. I, §8, cl. 4, very early on, see An Act to establish an uniform Rule of Naturalization, 1 Stat. 103. But with the fleeting exception of the Alien Act, Congress did not enact any legislation regulating immi­ gration for the better part of a century.

Totally aside, this may provide some fodder to my thoughts about the origins of exclusive federal jurisdiction.

Nino also cites the Virginia and Kentucky Resolutions as proof that the federal government was never delegated (and by extension the states never ceded) the power to regulate immigration (in opposition to the Alien and Sedition Acts).

The Kentucky and Virginia Resolutions, written in denun­ ciation of these Acts, insisted that the power to exclude unwanted aliens rested solely in the States. Jefferson’s Kentucky Resolutions insisted “that alien friends are under the jurisdiction and protection of the laws of the state wherein they are [and] that no power over them has been delegated to the United States, nor prohibited to the individual states, distinct from their power over citi­ zens.” Kentucky Resolutions of 1798, reprinted in J. Powell, Languages of Power: A Sourcebook of Early American Constitutional History 131 (1991). Madison’s Virginia Resolutions likewise contended that the Alien Act pur­ ported to give the President “a power nowhere delegated to the federal government.” Virginia Resolutions of 1798, reprinted in Powell, supra, at 134 (emphasis omitted). Notably, moreover, the Federalist proponents of the Act defended it primarily on the ground that “[t]he removal of aliens is the usual preliminary of hostility” and could therefore be justified in exercise of the Federal Govern­ ment’s war powers. Massachussets Resolutions in Reply to Virginia, reprinted in Powell, supra, at 136.

Um. These were authored anonymously by Madison and Jefferson, and were widely rejected and denounced. Though they are darlings of the Tea Party, so fitting in this dissent.

I, along with Corey and Mili, got to the Court around 4:30. I parked at the Union Station garage.  At 4:30, we were #6 on the line. The line was much easier today, as there was a nice breeze and it wasn’t too humid. A lot of the same people who waited last week.

There were a couple of jerks who cut in the line. The Supreme Court Police (not security guards!?!) were totally uninterested in helping. Beyond shaming the line-cutters, there is nothing to do. Fortunately, everyone who got there early got in (I’m not sure about people who attended later).

We were let in around 7:30 (when the SCOTUS cafeteria opened), and were let up around 9:15.

Nino was beyond vitriolic. I swear, he was giving a stump speech at a Tea Party.

Alito’s dissent read from the bench was very, very powerful.

The Chief looked really tired, and his usual boyish glow was not there. I have no idea what that means.

Today was Justice Sotomayor’s birthday. No one brought any cake to the Court.

After the Court gavelled out, I played it cool, and followed Mike Sacks into the Supreme Court press room. No, I don’t have credentials. No one checked. It was bustling! In an odd twist, the Court’s Public Information Office handed out a copy of Scalia’s statement from the bench. That is what Scalia read from the bench, not his dissenting opinion. I’m not sure if that is tradition. But I can only presume he wanted the media to report from his statement.

On my way out, I saw Tom Goldstein, Kevin Russell, and two others from the SCOTUSBlog Team blogging in the cafeteria. (I always wondered where Tom sat). Tom told me that 100,000 people had been on his site. He told me he missed my blog.

I told him that I would be returning to the blogosphere soon, and he said he would look for its return.

On my way out I saw live broadcasts from Jeff Toobin, Pete Wilson (who stands on box), and some guy holding up an “Overturn Wickard v. Filburn” sign.