Abstract

http://ssrn.com/abstract=1919272
 
 

Footnotes (207)



 


 



Safeguarding the Safeguards: The ACA Litigation and the Extension of Indirect Protection to Non-Fundamental Liberties


Abigail R. Moncrieff


Boston University - School of Law

August 29, 2011

Florida Law Review, Vol. 64, p. 639, 2012

Abstract:     
As the lawsuits challenging the Patient Protection and Affordable Care Act (ACA) have evolved, one feature of the litigation has proven especially rankling to the legal academy: the incorporation of substantive libertarian concerns into structural federalism analysis. The breadth and depth of scholarly criticism on this point is surprising, however, given that judges today frequently choose indirect methods for protecting substantive constitutional values, including structural and process-based methods of the kinds at issue in the ACA litigation. Indeed, indirection in the protection of constitutional liberties is a well-known and well-theorized strategy, which one scholar recently termed “semisubstantive review” and another recently theorized as “judicial manipulation of legislative enactment costs.” This Article situates the ACA plaintiffs' Commerce Clause and taxing power arguments within the broader context of semisubstantive review and enactment cost manipulation, arguing that these structural theories are ordinary and effectual as means of raising the political cost of libertarian infringements. The Article then considers three possible distinctions between the ACA case and the ordinary case of semisubstantive review, and concludes that the only viable descriptive distinction is that the ACA case involves non-fundamental rather than fundamental liberty interests - the freedom of health and the freedom of contract. I then go on to argue that this distinction should not make a normative difference. If anything, the case for structural invalidation should be stronger when non-fundamental liberty interests are at stake because those are, definitionally, the interests that the American legal system leaves to structural protection. If the Supreme Court invalidates the ACA on structural grounds, it can argue that it was merely safeguarding the safeguards of liberty.

Number of Pages in PDF File: 48

Accepted Paper Series





Download This Paper

Date posted: August 31, 2011 ; Last revised: June 4, 2012

Suggested Citation

Moncrieff, Abigail R., Safeguarding the Safeguards: The ACA Litigation and the Extension of Indirect Protection to Non-Fundamental Liberties (August 29, 2011). Florida Law Review, Vol. 64, p. 639, 2012. Available at SSRN: http://ssrn.com/abstract=1919272

Contact Information

Abigail R. Moncrieff (Contact Author)
Boston University - School of Law ( email )
765 Commonwealth Avenue
#1170D
Boston, MA 02215
United States
617-353-2212 (Phone)
Feedback to SSRN


Paper statistics
Abstract Views: 787
Downloads: 158
Download Rank: 111,023
Footnotes:  207

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo2 in 0.344 seconds