Caroline Fredrickson

by Jeremy Leaming

So it appears just based on oral argument action, if you believe pundits, such as CNN’s Jeffrey Toobin that the high court’s conservative justices are ready to trash precedent and accept the simplistic arguments of the challengers that the Affordable Care Act’s minimum coverage provision is a wild overreach by the federal government.

As noted in this ACSblog post, UCLA constitutional law professor Adam Winkler says we shouldn’t be surprised that the high court’s right-wing majority may be leaning this way. It has already proved it has no problem shunning precedent or being out-of-touch, for example see Citizens United v. FEC.

In a piece for The Huffington Post, ACS President Caroline Fredrickson argued against the idea that the minimum coverage provision is “unprecedented,” as its challengers like to call it.

“What is truly radical,” Fredrickson says, “is the economic theory the state and individual challengers are pushing, which calls for a greatly limiting the ability of Congress to address national concerns. It’s an argument that longs for the days when courts actively shut down congressional attempts to solve national problems.”

Geoffrey Stone, a constitutional law expert and a member of the ACS board, explains, also in a Huffington Post article, why the law’s minimum coverage provision, which will require Americans who can afford to do so to starting carrying health care insurance in 2014, is seemingly so unappealing to the high court’s conservative wing. Primarily the conservative wing appears to be obsessed with a slippery slope – if folks can be required to purchase health care insurance then what’s next?

Stone notes that the “slippery slope is a means of reasoning, not a conclusion. Every principle and decision has a slippery slope: The question is whether we can get off the slope before it reaches bad outcomes. In this instance, this is easy. The decisions of millions of individual Americans not to purchase health insurance (even though they can afford it) have a dramatic impact on the cost of health care for everyone else and on interstate commerce. This is clearly an appropriate matter for federal attention under the Commerce Clause.”

by Nicole Flatow

A bipartisan duo of law professors emphasized the urgent need for judicial nominations reform in The New York Times this week.

In a proposal featured in The Times’ “Sunday Dialogue,” the University of Minnesota’s Richard Painter and the University of North Carolina’s Michael Gerhardt lament the “judicial vacancy crisis on our federal courts,” and summarize the reform proposal laid out in their American Constitution Society Issue Brief, “Extraordinary Circumstances: The Legacy of the Gang of 14 and a Proposal for Judicial Nominations Reform.”

“President Obama has had a lower percentage of his judicial nominees confirmed by the Senate than any other recent president at this point in his term,” they write in The Times. "Filibusters, which have historically been used to block legislation and can be sustained by as few as 41 senators, are part of the problem." 

Gerhardt and Painter point out that Obama, recognizing the severity of the obstruction problem, recently offered his own proposal for nominations reform: require up-or-down votes on all nominees within 90 days (this proposal was immediately endorsed by Senate Majority Leader Harry Reid).

If the Senate adopted this proposal, it would necessarily eliminate much of the long-term obstruction contributing to the vacancy crisis. But, in the event that the Senate is looking for reform with a bit more wiggle room, Gerhardt and Painter have another option for the body to consider: