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Abstract:
Examining Gonzales v. Carhart, this Note takes the position that the Supreme Court’s latest abortion decision sets a lower bar than is prudent for the scrutiny of scientific and medical congressional 'findings' that purport to justify limiting rights otherwise entitled to constitutional protection. In doing so, the Court invites collateral attacks on the same rights through the use and congressional adoption of slipshod, deliberately uniformed science ('sham science').
Abortion, Gonzales v. Carhart, Fundamental rights, Substantive Due Process, Daubert v. Merrell Dow Pharmaceuticals, Science and law
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Abstract:
Warning: This is NOT a final draft, for submission or otherwise!
This Note suggests that the separation of powers inquiry in Hein was more complex than the Court was willing to acknowledge. Starting in Section II, I examine the background doctrine on federal standing – with a particular focus on taxpayer standing – and conclude that the principle espoused in Flast is vital and ought to be preserved if possible. After reviewing the background to Hein in Section III, I argue in Section IV that the conclusion in Hein creates more separation of powers problems than it solves, principally by creating incentives for the executive branch to engage in substantive lawmaking without congressional participation. As outlined in Section V, this problem could be solved by crafting a limited theory of standing in Establishment Clause cases focusing not on the expenditure of taxpayer money, but rather on whether the alleged Establishment Clause “injury” could be traced to executive action that otherwise implicates the separation of powers.
Hein v. Freedom from Religion Foundation, Separation of Powers, Antonin Scalia, Lujan, Flast v. Cohen, executive power, standing, Frothingham v. Mellon, Article III, Federal courts
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