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From an interview with Roll Call:

Q: One of the things you mentioned, the budget resolution is one area where you don’t need Democratic votes. How aggressive are you going to be or would you like to be in terms of rolling back Obamacare as part of the reconciliation process?

McConnell: Well I would say two things. Number one: we certainly will have a vote on proceeding to a bill to repeal Obamacare… it was a very large issue in the campaign. And, the reconciliation process does present an opportunity and we’re reviewing that to see what’s possible through reconciliation.

So, we’re certainly gonna keep our commitment to the American people to make every effort we can to repeal it.

It is a statement to the obvious, however, that Obama — of Obamacare — is the President of the United States, so I don’t want people to have [unrealistic] expectations about what may actually become law with Obama — of Obamacare — in the White House. But we intend to keep our commitment to the American people.

Now, that doesn’t mean we might not also want to target parts of the law that we know enjoy bipartisan opposition. It is a lot of concern about the 40-hour workweek, a lot of concern about the individual mandate. We actually have a show vote on the medical device tax as you know.

Q: Yes

McConnell: And 79 senators, including that great conservative Elizabeth Warren, said they didn’t like the medical device tax, so we will go at that law—which in my view is the single worst piece of legislation passed in the last half century — in every way that we can.

Gruber has made clear that it required all kinds of deception in order to get it passed. We were saying that at the time, but everybody just assumed we were just hard nosed partisans … but, virtually everything Gruber has said confirms what we were saying during that debate in 2009. But, yeah, to sum it up: we have a strong obligation to the American people to do everything within our power to get rid of it.

 

This term, the LexPredict team will be generating predictions for all cases argued before the Supreme Court. First, we are aggregating the crowd-sourced predictions of the players on FantasySCOTUS. Second, we are generating predictions from {Marshall}+, our SCOTUS-prediction algorithm. You can view all of the predictions for Supreme Court cases at our Prediction Tracker and you can read more about the {Marshall}+ methodology via our paper on SSRN / arXiv and these presentation slides.

For each sitting, we will compare the FantasySCOTUS predictions with the {Marshall}+ predictions. In a previous post, we offered predictions for cases argued during the October sitting: Heien v. NC, Dart Cherokee Basin Operating Co., v. Owens, Holt v. Hobbs, Warger v. Shauers, Integ. Staff. Solns. v. Busk, and N.C. Board of Dental Examiners v. FTC.

In this post we offer predictions for the remainder of the cases argued during the October sitting, and all cases argued during the November sitting: Jennings v. Stephens, Teva Pharmaceuticals USA v. Sandoz, Omnicare v. Laborers District Council Construction Industry Pension Fund, Zivotofsky v. Kerry, Department of Homeland Security v. MacLean, Jesinoski v. Countrywide Home Loans, Johnson v. U.S., Yates v. U.S., M&G Polymers USA, LLC v. Tackett, T-Mobile South, LLC v. City of Roswell, Alabama Democratic Conference v. Alabama, Alabama Legislative Black Caucus v. Alabama, and Comptroller v. Wynne.

For these thirteen cases, FantasySCOTUS and {Marshall}+ agree with the outcome of four out of the thirteen. Of 117 possible Justice votes, FantasySCOTUS and {Marshall}+ agree on 64 (55%). For the year as a whole, out of 170 total predictions, FantasySCOTUS and {Marshall}+ agree on 93 out of 171 (54%). Our level or agreement remains roughly the same. FantasySCOTUS is predicting a significant number of affirms–much higher than the historical average. {Marshall}+ is predicting a majority of reverses, which is more in keeping with the Court’s practices. Because one of the variables in our algorithm considers the duration of time between when the case is argued, and decided, the predictions offered today may differ as the term progresses.

	FantasySCOTUS Crowds	{Marshall}+ Algorithm
Jennings v. Stephens	6-3 Reverse	5-4 Affirm
Teva Pharmaceuticals USA v. Sandoz	9-0 Affirm	9-0 Reverse
Omnicare v. Laborers District Council Construction Industry Pension Fund	9-0 Reverse	5-4 Reverse
Department of Homeland Security v. MacLean	5-4 Affirm	9-0 Reverse
Zivotofsky v. Kerry	6-3 Affirm	9-0 Reverse
Jesinoski v. Countrywide Home Loans	5-4 Affirm	5-4 Affirm
Johnson v. U.S.	9-0 Reverse	9-0 Reverse
Yates v. U.S.	8-1 Affirm	8-1 Reverse
T-Mobile South, LLC v. City of Roswell	7-2 Reverse	9-0 Reverse
M&G Polymers USA, LLC v. Tackett	5-4 Affirm	9-0 Reverse
Alabama Democratic Conference v. Alabama	5-4 Affirm	9-0 Reverse
Alabama Legislative Black Caucus v. Alabama	5-4 Affirm	9-0 Reverse
Comptroller v. Wynne	6-3 Affirm	9-0 Reverse

Jennings v. Stephens

Jennings v. Stephens is a habeas corpus case where a prisoner prevailed on an ineffective assistance of counsel claim. This case presents the question of whether the petitioner must “file a separate notice of appeal and motion for a certificate of appealability to raise an allegation of deficient performance that the district court rejected even though the Fifth Circuit acquired jurisdiction over the entire claim as a result of the respondent’s appeal?” The Fifth Circuit  held that such a separate notice was required, and dismissed the appeal.

While FantasySCOTUS predicts a judgment of 6-3 reversal in favor of the prisoner, {Marshall}+ forecasts a 5-4 affirmance in favor of the government. At 52%, the Crowd is largely uncertain about the vote of Chief Justice Roberts.

Teva Pharmaceuticals USA v. Sandoz

Teva Pharmaceuticals USA v. Sandoz, an IP case, poses the question of whether. “Whether a district court’s factual finding in support of its construction of a patent claim term may be reviewed de novo, as the Federal Circuit requires (and as the panel explicitly did in this case), or only for clear error, as Rule 52(a) requires.”

For this case, FantasySCOTUS and {Marshall}+ could not disagree more. The former predicts a 9-0 affirmance of the Federal Circuit’s decision to use de novo review, while the latter forecasts a 9-0 reversal of the Federal Circuit, and a ruling requiring the application of clear error review. In recent years, the Court has consistently reversed the Federal Circuit. This case may be one of the outliers where the Court rules in a manner inconsistently with many previous Federal Circuit cases.

Omnicare v. Laborers District Council Construction Industry Pension Fund

Omnicare v. Laborers District Council Construction Industry Pension Fund is a case involving Section 11 of the Securities Act of 1933. It considers whether a plaintiff may “plaintiff may plead that a statement of opinion was ‘untrue’ merely by alleging that the opinion itself was objectively wrong . . . or must the plaintiff also allege that the statement was subjectively false.” The 6th Circuit held that the plaintiff must only show it was “objectively wrong,” and Omnicare appeals.

In this case, FantasySCOTUS and {Marshall}+ largely agree that the Court will reverse. The crowd thinks it will be unanimous, the algorithm along 5-4 line.

Zivotofsky v. Kerry

Zivotofsky v. Kerry is an important separation of powers case. It considers the constitutionality “a federal statute that directs the Secretary of State, on request, to record the birthplace of an American citizen born in Jerusalem as born in ‘Israel'” on a passport. The D.C. Circuit ruled in favor of Secretary of State John Kerry, finding the statute was unconstitutional.

The results here are very strange. {Marshall}+ is extremely certain that all 9 Justices will vote to reverse, and rule against the Government. Each Justice is around 90%, which is very, very rare. FantasySCOUTS predicts a modest 6-3 victory for the government, with only Justice Scalia, Thomas, and Alito ruling against Secretary Kerry.

Department of Homeland Security v. MacLean

Department of Homeland Security v. MacLean is a whistlebolower case. It considers whether certain statutory protections which are inapplicable when an employee makes a disclosure “specifically prohibited by law,” can bar an agency from taking an enforcement action against an employee who intentionally discloses Sensitive Security Information. The lower court ruled in favor of MacLean, the whistleblower, and the Department of Homeland Security Appeals. (As a funny aside, the respondent in MacLean checks FantasySCOTUS for updates on his case).

FantasySCOTUS and {Marshall}+ only agree on the votes of 4 Justices: Roberts, Scalia, Thomas, and Alito. Overall, the crowd expects a 5-4 Affirm in favor of the Whistleblower, while the algorithm expects a unanimous 9-0 reversal in favor of the government.

Jesinoski v. Countrywide Home Loans

Jesinoski v. Countrywide Home Loans is a case involving the Truth in Lending Act. It considers whether a “borrower exercise his right to rescind a transaction in satisfaction of the requirements . . . by ‘notifying the creditor’ in writing within three years of the consummation of the transaction . . . or must a borrower file a lawsuit within three years of the consummation of the transaction, as the First, Sixth, Eighth, Ninth, and Tenth Circuits have held?

The crowd and algorithm agree that this case will be a 5-4 affirm.

Johnson v. United States

Johnson v. United States marks another return to the Court over the application of the Armed Career Criminal Act. This case considers whether the “mere possession of a short-barreled shotgun should be treated as a violent felony under the Armed Career Criminal Act.” The lower court ruled against Johnson, finding that it did qualify.

On appeal, both the FantasySCOTUS crowd, and {Marshall}+ forecast a unanimous reversal, and overall victory for the government.

Yates v. United States

Yates, who threw away small fish he was not allowed to capture, was prosecuted for a violation of the Sarbanes-Oxley Act. This case asks whether he “was deprived of fair notice that destruction of fish” would be a “tangible objection.”

The predictions for Yates are almost entirely out of phase. The crowd expects an 8-1 Affirm, in other words, an overwhelming victory for the government. The algorithm expects a 9-0 reversal, giving Yates a complete victory.

T-Mobile South, LLC v. City of Roswell

This case concerns whether the City of Roswell’s document, denying T-Mobile the ability to build a cellular tower, “but provid[ed] no reasons whatsoever for the denial, can satisfy this statutory ‘in writing’ requirement.”

The crowd and algorithm are in total agreement that the Court will reverse. The only votes out of sync are those of Justices Thomas and Alito. FantasySCOTUS expects both to affirm. T-Mobile is likely going to win.

M&G Polymers USA, LLC v. Tackett

This Labor Management Relations Act case aims to resolve a three-way circuit split over the “duration of retiree health-care benefits.” The 6th Circuit ruled against M&G Polymers, holding that “silence” should be presumed to “means the parties intended those benefits to vest (and therefore continue indefinitely).”

For this case, the crowds and algorithm agree on the votes of the liberal Justices, but none of the conservatives. The former forecasts a 5-4 victory for Tacket, while the later predicts a complete victory for M&G Polymers.

Alabama Democratic Conference v. Alabama

This case poses a complicated Voting Rights Act issue concerning whether a redistricting “amounted to an unconstitutional racial quota and racial gerrymandering.” The crowd predicts a victory for the state along conventional 5-4 lines. The algorithm forecasts a unanimous reversal in favor of the challengers.

Alabama Legislative Black Caucus v. Alabama

The results for the crowd and algorithm are the same for the companion case.

Comptroller v. Wynne

In this case, the Court will decide if the Constitution “prohibit[s] a state from taxing all the income of its residents-wherever earned-by mandating a credit for taxes paid on income earned in other states.” The crowd expects a 5-4 victory for Wynne, the taxpayer. The algorithm expects a unanimous reversal in favor of the government, finding the taxation was permissible.

In an article titled, “Experts See Legal Hazards in States’ Immigration Suit,” the Times quotes Yale LawProf Cristina Rodriguez, who asserts that the “injury the states are alleging seems a bit speculative.”

Texas asserts in its complaint, on behalf of 17 states, two main injuries from the new immigration executive action. First, DAPA will “trigger a new wave of undocumented immigration” and increase “human trafficking in the Plaintiff States.” Second, the states will “will be forced to expend substantial resources on law enforcement, healthcare, and education” for the newly-protected immigrants.

Are these injuries too speculative under the Supreme Court’s most recent pronouncement on standing? Massachusetts v. E.P.A., reviled by years for conservatives, provides some very strong support to Texas’s arguments concerning standing. Let’s revisit portions of Justice Stevens’s opinion.

First, Justice Stevens speaks to the power of states to “preserve its sovereign territory.” While the facts at issue in Massachusetts concerned erosion of its shore due to climate change, Texas asserts an intrusion of its sovereignty by immigrants.

Just as Georgia’s independent interest “in all the earth and air within its domain” supported federal jurisdiction a century ago, so too does Massachusetts’ well-founded desire to preserve its sovereign territory today. Cf. Alden v. Maine, 527 U.S. 706, 715, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999) (observing that in the federal system, the States “are not relegated to the role of mere provinces or political corporations, but retain the dignity, though not the full authority, of sovereignty”). That Massachusetts does in fact own a great deal of the “territory alleged to be affected” only reinforces the conclusion that its stake in the outcome of this case is sufficiently concrete to warrant the exercise of federal judicial power.

Second, the Bush EPA decided not to enforce the laws, leaving Massachusetts without any remedy, because the clean air act was an area reserved only to the federal government. Similarly, the fact that the state of Texas is unable to take any action concerning immigration because of preemption (see Arizona v. United States), there is a stronger need for the Executive branch to execute the law.

When a State enters the Union, it surrenders certain sovereign prerogatives. Massachusetts cannot invade Rhode Island to force reductions in greenhouse gas emissions, it cannot negotiate an emissions treaty with China or India, and in some circumstances the exercise of its police powers to reduce in-state motor-vehicle emissions might well be pre-empted. See Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592, 607, 102 S.Ct. 3260, 73 L.Ed.2d 995 (1982) (“One helpful indication in determining whether an alleged injury to the health and welfare of its citizens suffices to give the State standing to sue parens patriae is whether the injury is one that the State, if it could, would likely attempt to address through its sovereign lawmaking powers”).

69. If the Plaintiff States had the sovereign power to redress these problems, they would. See Massachusetts v. EPA, 549 U.S. 497, 519 (2007) (citing Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592, 607 (1982)). But the Supreme Court has held that authority over immigration is largely lodgedin the federal government. See, e.g., Arizona v. United States, 132 S. Ct. 2492 (2012). Accordingly, litigation against the federal government is the only way for the States to vindicate their interests and those of their citizens.

With that in mind, it is clear that petitioners’ submissions as they pertain to Massachusetts have satisfied the most demanding standards of the adversarial process. EPA’s steadfast refusal to regulate greenhouse gas emissions presents a risk of harm to Massachusetts that is both “actual” and “imminent.” Lujan, 504 U.S., at 560, 112 S.Ct. 2130 (internal quotation marks omitted). There is, moreover, a “substantial likelihood that the judicial relief requested” will prompt EPA to take steps to reduce that risk. Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 79, 98 S.Ct. 2620, 57 L.Ed.2d 595 (1978).

To this last point, I think imperative to Texas’s case is detailed discovery. They should find out, specifically, what internal statistics show about the relationship between DACA and the unaccompanied minor crossing the border this summer. Further, there should be clear evidence in the record, by the time this case gets appealed, to show how the deferred immigrants impacted Texas’s budget. It would be too easy for the Court to dismiss the case due to a less-than-developed record.

For purposes of standing, you have to accept the facts pleaded as true. If the threat that climate change would take place “over the course of the next century,”  is both “actual” and “imminent,” present-day impacts on a state’s budget, and immigration numbers would be a much more concrete case. This would not be like the plane-ticket-yet-to-be-bought in Lujan. Here, the state could show through budgets money being spent on the immigrants.

Fourth, JPS concluded:

In sum—at least according to petitioners’ uncontested affidavits—the rise in sea levels associated with global warming has already harmed and will continue to harm Massachusetts. The risk of catastrophic harm, though remote, is nevertheless real. That risk would be reduced to some extent if petitioners received the relief they seek.

If this is the standard, Texas’s case can hardly be viewed as “speculative.”

Finally, as I’ve noted with West Virginia’s challenge to the individual mandate, once the state has its foot in the door with Article III standing, the APA claims remain in play. Massachusetts did not win on a “take care” challenge, but its APA challenge.

National Review published my essay, “Obama’s Unconstitutional Corner,” which looks at the implications of the President’s new immigration policy. While I concede (for purposes of argument at least) that the reasoning in the OLC memo is valid in theory, I argue in practice the policy will run afoul of the limitations DOJ set down.

If we take seriously the DOJ Office of Legal Counsel’s 33-page memorandum spelling out what the president may and may not do under the auspices of prosecutorial discretion, it becomes evident that Obama’s executive action on immigration, as well as his unilateral waivers of provisions of Obamacare, exceed the scope of that discretion. The president has violated and will likely continue to violate the outer bounds that his own administration has set. By attempting to craft a limiting principle, the Justice Department has backed the president into an unconstitutional corner.

To approve this policy, OLC had to suspend its disbelief about what would actually happen. While DHS repeats the word discretion in virtually every sentence of its memo (seriously), there is very little room for discretion on the ground.

The Obama administration’s immigration policy has the effect of exempting up to 5 million people from deportation. How does it justify this non-enforcement of the law? To summarize the Office of Legal Counsel (OLC) memo, so long as the decisions not to deport “are made on a case-by-case basis,” declining to execute the law is legal. “The guarantee of individualized, case-by-case review,” the memo explains, “helps avoid potential concerns that, in establishing such eligibility criteria, the Executive is attempting to rewrite the law by defining new categories of aliens who are automatically entitled to particular immigration relief.” The last, best hope of a blanket non-enforcement policy is the appearance of an “individualized assessment.”

I say “appearance” because it is not clear that the policy President Obama announced allows for an actual “individualized assessment.” While the justification seems consistent with precedent — and OLC went out of its way to craft it that way — it is doubtful whether the policy in practice accords with this theory.

Consider DACA, which turned into a virtual rubber stamp with between 1% and 3% of applicants being denied.

Consider President Obama’s 2012 Deferred Action for Childhood Arrivals (DACA). This policy exempted from deportation over 1 million minors brought to the country without authorization. Homeland Security secretary Janet Napolitano’s memo announcing DACA provided that DHS “should establish a clear and efficient process for exercising prosecutorial discretion, on an individual basis.” (This language is virtually identical to that of the 2014 DHS memo announcing the latest policy.) Yet, despite the lip service paid to case-by-case consideration, a Brookings Institution report found that only 1 percent of applicants were denied deferrals. A 1 percent denial rate, or anything in that ballpark, seems awfully close to “automatic” relief. By way of an imprecise comparison, consider that a report by the Transactional Records Access Clearinghouse calculated that immigration judges denied roughly 50 percent of applications for asylum in 2010.

Further, DHS made the process of granting deferrals from deportation as lax as possible, as revealed by Freedom of Information Act requests from conservative watchdog group Judicial Watch. Specifically, field offices were asked to conduct only limited background checks, applicants without ID were still accepted for biometric processing, and there were widespread waivers of fees. Despite the insistence on prosecutorial discretion, the process seemed stacked to exempt from deportation everyone who met the bare requirements, and even those who lacked the appropriate identification or ability to pay the fees. There can be no pretense of prosecutorial discretion if DHS is wielding a rubber stamp.

 

DAPA, as it is now known, seems to embody the same lax approach as DACA, accept it will now apply to 4 million, rather than 1 million.

There is every reason to think that President Obama’s new policy will yield a similarly astronomically high rate of approved deferrals. In the memo from DHS secretary Jeh Johnson outlining the policy, there is absolutely no guidance about what the “exercise of discretion” should consist of and what the grounds are for rejecting an application. This must be a deliberate omission, because OLC felt compelled to acknowledge and address it. The OLC memo explains, “The proposed policy does not specify what would count as [a factor that would make a grant of deferred action inappropriate]; it thus leaves the relevant USCIS official with substantial discretion to determine whether a grant of deferred action is warranted.”

While this absence of guidance should be a cause for concern, as it violates the very theory the memo just laid out, the Justice Department is satisfied. This rationalization is unsurprising in light of the origin of the executive action. TheNew York Times reported that the administration urged the legal team to use its “legal authorities to the fullest extent.” When they presented the president with a preliminary policy, it was a “disappointment” because it “did not go far enough.” Obama urged them to “try again.” And they did just that. Politico reported that over the course of eight months, the White House reviewed over “60 iterations.” The final policy, which received the president’s blessing, pushes presidential power beyond its “fullest extent,” as it embodies discretion in name only.

I think going forward, a serviceable line for the “take care” clause should be one of prosecutorial discretion or clerical approval. The closer the process gets to the latter, the more likely it amounts to a dubious policy of non-enforcement.

The president has created criteria that apply to millions, has essentially instructed his agents to automatically check off a few boxes, and calls this an individualized assessment. Such a policy cannot be constitutional. It is designed to exempt everyone who follows the application procedure. Against the backdrop of DACA, agents reviewing applications will quickly figure out how the administration wants them to proceed. Approving such applications is not an exercise of prosecutorial discretion, but of clerical approval. Such a rote task seems a far cry from the “individualized assessment” required by Obama’s own Justice Department.

 

These arguments apply even more strongly to Obamacare, where Congress did not vest the President with wide latitude to suspend enforcement.

Beyond immigration, the same type of “prosecutorial discretion” was used to justify non-enforcement of Obamacare. For example, the so-called administrative fix waived the individual mandate’s penalty for anyone who believes that he cannot afford to purchase health care as required by Obamacare. In other words, just about everyone. It seems this relief was virtually automatic for anyone who requested it, without any individualized assessment. Likewise with the employer mandate, from which the administration exempted all businesses with between 50 and 99 employees until 2016. It’s unclear that any businesses that met these criteria were denied. The essence of discretion is that some applications are denied based on individual judgment. If virtually everyone’s request is granted, discretion is a mere pretense.

It cannot be the rule of law for the president to create arbitrary criteria concerning where the law will not apply and then to instruct executive agencies to exempt anyone who meets those criteria. To quote the D.C. Circuit in a 1994 decision explaining the scope of the executive’s powers, “A broad policy against enforcement poses special risks that [an agency] ‘has consciously and expressly adopted a general policy that is so extreme as to amount to an abdication of its statutory responsibilities.’” Such an abdication is an affront to Congress’s powers to write laws and the president’s oath to “take Care that the Laws be faithfully executed.”

Here is the cover of the issue:

A Houston ISD teacher made a number of inflammatory comments on a public-access television show.

Box, who has taught in HISD since July 2013 and previously taught in Spring Branch ISD, has been a regular guest on the conservative political talk show, “Tommy’s Garage,” broadcast on cable at midnight. In online clips, she can be seen saying, “I am so sick of the bacon-haters coming here” and “Can’t Ebola just take one for the team and take out Obama?” She also used profanity referring to Muslims.