Adam Winkler

  • September 16, 2016
    Guest Post

    by Adam Winkler, Professor of Law, UCLA School of Law

    *This post is part of the ACSblog symposium: Constitution Day 2016

    Happy Constitutions Day!

    No, that is not a typo. I know that tomorrow, September 17, is officially “Constitution Day,” marking the date in 1787 when the Constitution was submitted to the states for ratification. And I know there is only one document called the Constitution of the United States, not multiple different ones. Yet given how much the Constitution has changed, how different our perceptions of its requirements and the many other constitutions in American lives, perhaps we should nonetheless refer to it as “Constitutions Day.”

    Of course the original version of the Constitution is of vital importance to American history, culture and law. We must remember, however, that the states found that document wanting because it lacked a clear specification of individual rights. Several states conditioned their ratification of the Constitution on the adoption of significant amendments. Their objections to the Constitution led to the addition of the Bill of Rights in 1791. Four years after the first Constitution was proposed, we end up with a new one, revised and improved.

    Since then, we have added another 17 amendments to the Constitution. Some, like the Reconstruction Amendments (13th, 14th, & 15th) are of tremendous significance, radically reshaping the Constitution once again. The effect on American life and government from these amendments, which overhauled the relationship between the federal government and the states, was profound. Other amendments, like the 27th, which deals with congressional salaries, are relatively minor. Yet all of them have one thing in common: they each created a new Constitution. The Constitution today is different than the Constitution Americans lived with 50 years ago, which is different from the one 50 years before that.

  • November 17, 2015
    Guest Post

    by Adam Winkler, Professor of Law, UCLA Law. Winker is author of Gunfight: The Battle over the Right to Bear Arms in America.

    As the Supreme Court has made clear, the Second Amendment is not an insurmountable barrier to gun control. President Barack Obama should not let the stalemate in Congress be one either. That’s why I, along with numerous other law professors, signed the “Statement of Law Professors on the Constitution and Executive Action to Reduce Gun Violence.” Even in the absence of new federal gun legislation to require every gun buyer to pass a simple background check, the president should continue to seek ways to reduce gun violence through executive action.

    Although Obama’s use of executive powers follows longstanding presidential tradition, it has proven controversial. Some have suggested – incorrectly – that executive action on guns would be unauthorized under the Constitution or undermine the Second Amendment right to keep and bear arms. In fact, however, the Second Amendment gives the government wide leeway to regulate guns to enhance public safety. Moreover, the Constitution vests Obama with the obligation to insure that congressional mandates “be faithfully executed,” enabling him to take executive action.

    Executive action designed, for instance, to clarify existing federal statutes is clearly within the president’s power. The president can, and should, clarify when a gun seller is “engaged in the business” of dealing firearms and thus required to have a federal license. He should also apply the existing federal law barring gun possession by people convicted of misdemeanor crimes of domestic violence to non-married couples and prioritize prosecution of illegal gun buyers. None of these reforms undermine the individual’s right to keep and bear arms for self-defense.  

    As with all individual rights, the president should be sure to pursue only those executive actions that do not infringe the Constitution. As the Statement suggests, however, there is much President Obama can still do to reduce gun violence well within the Constitution’s boundaries.

  • September 16, 2015
    Guest Post

    by Adam Winkler, Professor of Law, UCLA School of Law

    *This post is part of ACSblog’s 2015 Constitution Day Symposium.

    On this Constitution Day, we would do well to focus on politics. While it is true that the Constitution is “the supreme Law of the Land” (Article IV, section 2) and that there are important differences between law and politics, time has come for those who love the Constitution to turn to politics – and not just any politics but politics of the basest kind: partisan, electoral politics. For the future of the Constitution rests in the hands of the men and women who are running to be elected “President of the United States” (Article II, section 1).

    Candidates are vying for the voters’ support by endorsing major policy initiatives, such as Bush’s tax plan or Clinton’s voting reforms. Regardless who wins, these legislative efforts require the support of both the House and the Senate (Article I, section 7), which aren’t likely to go along easily. The House is expected to stay Republican, inhibiting anything a Democratic president could achieve. The Senate is expected to shift Democrat, limiting any GOP president’s legislative agenda.

    One place where the president will likely have a strong impact is the future of the Constitution. While Supreme Court nominations require “the Advice and Consent of the Senate” (Article II, section 2), in practice few nominees are rejected absent a glaring lack of qualifications or an obviously extreme judicial philosophy. And the next president is almost certain to select at least one and possibly four Supreme Court Justices. When the next president is sworn in on January 20, 2017 (20th Amendment, section 1), three justices will be over eighty (Ruth Bader Ginsburg, Antonin Scalia, and Anthony Kennedy) and one nearing that age (Breyer).   

  • June 25, 2015
    Guest Post

    by Adam Winkler, Professor of Law, UCLA School of Law

    *This piece originally appeared at The Huffington Post

    For proponents of the Affordable Care Act, today's Supreme Court decision upholding federal subsidies on federally created exchanges is cause to celebrate. Once again, the ACA has survived a potentially fatal challenge. The significance of today's decision, however, also extends into the future. Because of how the Supreme Court reasoned in the case, a future president opposed to the ACA (including all of the current crop of GOP contenders) will not be able to reinterpret the law to deny subsidies to low- and middle-income taxpayers in the future.

    One of the arguments rejected by Chief Justice John Roberts' majority decision is that the ACA is ambiguous and that, as a result, the Court should defer to the construction of the relevant administrative agency, here the Internal Revenue Service. (The IRS read the statute to allow subsidies.) Robert said it was the justices' job to read the statute for themselves without deference to the IRS. While the court rejected the administration's argument on this point, Obama's loss bodes well for the long-term viability of the Affordable Care Act.

    If the court had deferred to the IRS construction of the statute, the next president, should he or she be opposed to subsidies, could have pushed the IRS to reconsider the law. The IRS could have determined then that the ACA did not make subsidies available on the federally created exchanges. That would have gutted the law -- even without opponents having to pass anything from Congress.

    Chief Justice Roberts' decision eliminates the possibility. By insisting that the subsidy question was too important for the court to defer to the agency's interpretation, Roberts betrays his usual preference for judicial supremacy and skepticism of the executive branch. Yet in doing so he takes the subsidy question off the table for future presidents. A President Rubio or Bush won't be able to reinterpret the ACA to deny subsidies on the federally created exchanges. The ACA has now been authoritatively and conclusively read by the Supreme Court to allow subsidies.

    Chief Justice Roberts has not only saved Obamacare once again. He's also given the law strong protection against future attack.

  • September 18, 2014
    Guest Post

    by Adam Winkler, Professor Law, UCLA School of Law. This post is part of our 2014 Constitution Day symposium.

    In 1961, Yale Law School professor Alexander Bickel wrote a law review article extolling what he called the “passive virtues” of judicial decision-making. By this, Bickel meant that the Supreme Court might achieve better, more enduring results if instead of boldly asserting a constitutional vision the justices took small, narrow steps. He didn’t mean that the Court should stay away from controversial issues so much as lead the nation in a dialogue, venturing in on occasion to articulate important principles but allowing issues to percolate over time.

    In an era where the Supreme Court is known for its aggressive assertions of power, most notoriously in deciding a presidential election in Bush v. Gore, it may be hard to take seriously any notion of a passive or tentative Court. In recent years, some liberal scholars such as Cass Sunstein have promoted judicial minimalism, though mostly one suspects because of the conservative makeup of the Rehnquist and Roberts Courts. Yet if there is one area where the Court has seemed to follow Bickel’s lead, it is LGBT rights and, in particular, marriage equality.

    Consider that the Court has ruled on the constitutionality of laws discriminating or harming LGBT people in three major cases over the past twenty years: Romer v. Evans, striking down Colorado’s statewide ban on local anti-discrimination ordinances; Lawrence v. Texas, voiding bans on same-sex sexual relationships; and United States v. Windsor, invalidating the federal Defense of Marriage Act. These cases have been celebrated for expanding the constitutional promise of equal citizenship to LGBT people. And the justices have been criticized, too, for not going far enough. Romer refused to say that sexual orientation was a suspect classification triggering heightened scrutiny. Lawrence refused even to say that same-sex sexual activity was a fundamental right. Windsor was decided the same day as Hollingsworth v. Perry, where the Court used procedural issues to avoid ruling directly on the constitutionality of bans on same-sex marriage. 

    Such criticism is certainly appropriate given that the Court’s half-steps leave LGBT people in limbo. After Romer and Lawrence, federal courts continued to uphold other laws discriminating against LGBT people, such as bans on adoption. Windsor and Hollingsworth literally left LGBT people in loving relationships at the altar, still unable to marry in the majority of states. This state of affairs must be changed and soon. For many, rights delayed are rights denied.