Blog

My earliest memory of the Astrodome is from the movie Selena (yes, I am from New York). When I arrived in Houston, and went to my first Texas game at the nearby Reliant Stadium, I was stunned at how tiny and dumpy the Astrodome was. It paled in comparison to the nearby mega-stadium, and seemed totally abandoned. The fate of the Astrodome, once dubbed the Eighth Wonder of the World, has been a controversy in Houston for some time. But with the Superbowl coming to town in 2017, a renewed movement is afoot to do something about it. The NFL wants to turn it into parking lots. There seems to be plenty of parking nearby. Others want to turn it into some kind of green place.

Slattery’s plan, which has gained traction, involves a vision of green space. He would strip the Astrodome to its steel skeleton, evoking the Eiffel Tower of sport, and install a park. It could be used for football tailgating, livestock exhibitions, recreational sports. Other ideas have been floated through the years, some more realistic than others: music pavilion, casino, movie studio, hotel, museum, shopping mall, indoor ski resort, amusement park.

Land use decisions in Houston are always quirky.

Let’s see what happens.

It’s the home stretch. Here are the predictions from FantasySCOTUS.net for the remaining Blockbusters. The end of this term should be a doozy.

Here are the highlights:

• Agency for Int’l Deveopment v. Alliance for Open Society Int’l – 63% Affirm
  
• Fisher v. University of Texas at Austin  – 60% Reverse (Program is unconstitutional) – Justice Kennedy is at 67% to reverse
• Hollingsworth v. Perry – Do Petitioners Have Standing? – 68.5% Affirm (Yes, there is standing)
• Hollingsworth v. Perry – Does Prop 8 Violate the Equal Protection Clause? –  72.63% Affirm (Yes, it is unconstitutional)
• Shelby County v. Holder – 51.38% Reverse, 48.62% Affirm – This one is way too close to call.
• United States v. Windsor – Does Counsel for House of Representatives have Standing? 78% Affirm (Yes, there is standing)
• United States v. Windsor – Does DOMA violation the Equal Protection Component of the 5th Amendment or Federalism Principles? – 83.6% Affirm (Yes, it is unconstitutional)
• United States v. Windsor – Does SG’s agreement with 2nd Circuit deprive SCOTUS of jurisdiction – 78.6% Affirm (No, SCOTUS has jurisdiction)

I should also focus on the predictions of Chief Justice Melech, the reigning champion of FantasySCOTUS:

• Fisher v. University of Texas at Austin  – With Kagan recused, Melech predicts a 5-3 split, with Kennedy voting with the conservatives.
• Hollingsworth v. Perry – Do Petitioners Have Standing? – Melech predicts that Scalia, Thomas, and Alito will find that petitioners lack standing. The rest will find standing is present.
• Hollingsworth v. Perry – Does Prop 8 Violate the Equal Protection Clause? –  Melech predicts a 5-4 split, with Kennedy joining the liberals to find a constitutional violation.
• Shelby County v. Holder – Melech predicts a 5-4 reversal, with Kennedy and Roberts voting in the majority.
• United States v. Windsor – Does Counsel for House of Representatives have Standing? Melech predicts that all, except Scalia and Alito, find a lack of standing.
• United States v. Windsor – Does DOMA violation the Equal Protection Component of the 5th Amendment or Federalism Principles? – Melech predicts a 5-4 split, with Kennedy voting with the liberal justices to find that DOMA is unconstitutional.
• United States v. Windsor – Does SG’s agreement with 2nd Circuit deprive SCOTUS of jurisdiction – Melech predicts that only Justices Breyer, Sotomayor, and Kagan will find that the Court has jurisdiction, and the rest will reverse the case.

Update: Melech writes in with this correction:

You got it backwards on the Prop 8 standing. My prediction is that only Scalia, Thomas, and Alito will find standing.

To clarify the DOMA jurisdiction question, my predictions actually have five justices finding jurisdiction of some sort, three allowing executive standing, and two allowing House of Representatives standing.

FInally, to further clarify I (and most probably the other top predictors) are predicting each issue as to the probable vote of the Justice in question should he or she decide to reach that issue. If I am right, for instance, that the SCOTUS majority will vote against standing in the prop 8 case, then most probably the justices in the majority will not indicate how they would come out on the merits.

And the rest of the cases:

Case	FantasySCOTUS Prediction	Outcome
Case	FantasySCOTUS Prediction	Outcome	Date Decided	Accuracy
Adoptive Couple v. Baby Girl	Affirm	n/a	–	–
Agency for Int’l Deveopment v. Alliance for Open Society Int’l	Affirm	n/a	–	–
Alleyne v. U.S.	Affirm	n/a	–	–
American Express Co. v. Italian Colors Restaurant	Affirm	n/a	–	–
American Trucking Associations v. City of Los Angeles	Affirm	n/a	–	–
Arizona v. The Inter Trial Council of Arizona	Reverse	n/a	–	–
Association for Molecular Pathology v. Myriad Genetics	Reverse	n/a	–	–
Bond v. U.S.	Affirm	n/a	–	–
Cable Telecom., and Tech. v. FCC	Affirm	n/a	–	–
Chadbourne & Parke LLP v. Troice	Affirm	n/a	–	–
Descamps v. U.S.	Affirm	n/a	–	–
Federal Trade Commission v. Actavis	Affirm	n/a	–	–
Fisher v. University of Texas at Austin	Reverse	n/a	–	–
Hillman v. Maretta	Affirm	n/a	–	–
Hollingsworth v. Perry – Do Petitioners Have Standing?	Affirm	n/a	–	–
Hollingsworth v. Perry – Does Prop 8 Violate the Equal Protection Clause?	Affirm	n/a	–	–
Horne v. Dep’t of Agriculture	Reverse	n/a	–	–
Koontz v. St. Johns River Water Management District	Affirm	n/a	–	–
Maracich v. Spears	Reverse	n/a	–	–
Maryland v. King	Affirm	n/a	–	–
McQuiggin v. Perkins	Affirm	n/a	–	–
Mutual Pharmaceutical Co. v. Bartlett	Reverse	n/a	–	–
Oxford Health Plans LLC v. Sutter	Affirm	n/a	–	–
Peugh v. U.S.	Affirm	n/a	–	–
Proskauer Rose LLP v. Troice	Reverse	n/a	–	–
Salinas v. Texas	Reverse	n/a	–	–
Sekhar v. U.S.	Affirm	n/a	–	–
Shelby County v. Holder	Reverse	n/a	–	–
Tarrant Regional Water District v. Herrmann	Affirm	n/a	–	–
Trevino v. Thaler	Reverse	n/a	–	–
U.S. Davila	Affirm	n/a	–	–
U.S. v. Kebodeaux	Reverse	n/a	–	–
United States v. Windsor – Does Counsel for House of Representatives have Standing?	Affirm	n/a	–	–
United States v. Windsor – Does DOMA violation the Equal Protection Component of the 5th Amendment or Federalism Principles?	Affirm	n/a	–	–
United States v. Windsor – Does SG’s agreement with 2nd Circuit deprive SCOTUS of jurisdiction?	Affirm	n/a	–	–
University of Texas Southwestern Medical Center v. Nassar	Reverse	n/a	–	–
Vance v. Ball State University	Affirm	n/a	–	–
Willis of Colorado Inc. v. Troice	Reverse	n/a	–	–

So far this term, FantasySCOTUS is around 73% accuracy (our average over the last few years). This number should shake up as we get closer to the last day of the term.

The Times explores how the powder keg that is the Affordable Care Act, which has many flaws that may be fixed, will not be fixed due to partisan gridlock.

But as they prowl Capitol Hill, business lobbyists like Mr. DeFife, health care providers and others seeking changes are finding, to their dismay, that in a polarized Congress, accomplishing them has become all but impossible.

Republicans simply want to see the entire law go away and will not take part in adjusting it. Democrats are petrified of reopening a politically charged law that threatens to derail careers as the Republicans once again seize on it before an election year.

As a result, a landmark law that almost everyone agrees has flaws is likely to take effect unchanged.

“I don’t think it can be fixed,” Senator Mitch McConnell of Kentucky, the Republican leader, said in an interview. “Everything is interconnected, 2,700 pages of statute, 20,000 pages of regulations so far. The only solution is to repeal it, root and branch.”

Senator Max Baucus, Democrat of Montana and one of the law’s primary authors, said: “I’m not sure we’re going to get to the point where it’s time to open the bill and make some changes. Once you start, it’s Pandora’s box.”

This is what happens when the bill that cleared in the Senate during that fateful Christmas eve vote in 2009 was never meant to be final.

Concerns over the law’s fine print are shared even among some of its architects. As the Affordable Care Act neared completion, the Obama administration and some Democrats in Congress drafted a proposed compromise to resolve differences between the House and Senate versions and smooth rough edges. Under that version, the marketplaces that people would be able to use next year to buy insurance, often at subsidized rates, were going to be national in scope, not state by state.

A provision that takes back subsidies if someone’s income rises in a year was going to be softened. According to a former White House official involved in the drafting, Democrats debated the 50-employee definition for large businesses and were open to additional flexibility for seasonal workers and teenage employees.

That all disappeared when Massachusetts elected Scott Brown to the Senate in January 2010. The Democrats lost their filibuster-proof majority. House Democratic leaders saw no alternative but to accept the Senate-passed bill as written, with some changes to follow in a hastily drafted bill that passed under rules that prohibited a filibuster.

As a result, a back-room conference, where changes could be considered in private, never happened. Consequently, said E. Neil Trautwein, a health care lobbyist for the National Retail Federation, “the edges don’t quite line up.”

Perhaps one of the biggest bugs that will not be fixed is the fact that the penalty is too low to be effective. However, as I discuss in Unprecedented, efforts to raise the penalty to the point of effectiveness (assuming the political willpower is there–it’s not) would likely be unconstitutional as this coercive penalty is now coercive, and runs afoul of CJ Roberts’s NFIB opinion. Despite some early indications that costs in California are not as high as anticipated, the implementation of this law is not going to be pretty.

“The reality of the ACA being on the doorstep of becoming law is it’s going to begin collapsing under its own weight,” Mr. Isakson said. “I’m not so sure there’s enough individual fixes to make the law more manageable.”

I love this line from Adam Liptak’s Sidebar column about the large number of unanimous rulings.

For now, consensus reigns. That is partly because some of the recent decisions were decidedly minor. One, concerning a towed car, would not have been out of place in small claims court or before Judge Judy. Another, about the meaning of the word “defalcation” in the Bankruptcy Code, must have made Justice Stephen G. Breyer, its author, wonder what he had done to deserve the assignment.

 

When I was in law school, I volunteered to give a lecture on constitutional law to a nearby high school government class (this wonderful experience helped sow the seeds for my work with the Harlan Institute). During the lecture, I turned to the 5th Amendment. I informed the students that if anyone–a police officer, or even a teacher–ever asks them if they have engaged in criminal activity, they should not answer any questions, and instead ask for their parent or guardian (and maybe even an attorney) to be present during the questioning. Getting in trouble with your parents pales in comparison to getting in trouble with the police (it’s so easy for a cop to say, “talk to us and we won’t have to call your mom.”) I explained to them that as minors, they could request a parent to be present, and an adverse inference cannot be drawn against them for requesting a guardian  Under no circumstance should the students ever make an incriminating statement to a police officer without a parent or lawyer present. This is basic stuff, right?

As I was telling the students this, I could see the teacher was getting livid. After I finished, she said something like, “But of course, you should always cooperate with the police.” I added, “No, you shouldn’t. Especially if you may provide any incriminating information.” A few of the students asked follow-up questions, and I reassured them that staying silent–like they always hear in the movies–is the smart thing to do. The teacher was getting visibly angry.  I didn’t ask to return to that class the following year (I graduated and left Virginia), but I doubt I would’ve received another invitation.

Anyway, I hope the message got across to the students. Students may shed some of their constitutional rights at the schoolhouse gate, but I do everything in my power to make sure they know what those rights are–through the Harlan Institute and otherwise.

Reason blogs about a similar story from Illinois. A high school teacher informed his students that they do not need to fill out forms asking if they’ve engaged in illegally using drugs or alcohol.

The survey, ostensibly aimed at assessing the needs of students at Batavia High School, was distributed on April 18. After picking up the survey forms from his mailbox about 10 minutes before his first class of the day, John Dryden noticed that they had students’ names on them and that they asked about drinking and drug use, among other subjects. Dryden, who had just finished teaching a unit on the Bill of Rights, worried that students might feel obliged to incriminate themselves—an especially ticklish situation given the police officer stationed at the school. Since there was no time to confer with administrators, he says, he decided to tell his students that they did not have to complete the forms if doing so involved admitting illegal behavior. Tomorrow the school board will consider whether and how to punish Dryden for taking advantage of this teachable moment.

The teacher is going to be disciplined. This is beyond perverse, but not surprising. Kudos to Mr. Dryden for showing his kids what their constitutional rights are.