Abstract

http://ssrn.com/abstract=2066256
 


 



What the New Deal Settled


Jamal Greene


Columbia University - Law School

May 24, 2012

University of Pennsylvania Journal of Constitutional Law, Forthcoming
Columbia Public Law Research Paper No. 12-307

Abstract:     
This brief essay, written in conjunction with a symposium comparing the Franklin Delano Roosevelt and Obama presidencies, explores the absence of substantive due process arguments in the Affordable Care Act litigation and attendant public discourse. I argue that a substantive due process argument against the Act's individual mandate is at least as sound doctrinally as a federalism-based argument, but to the extent such arguments have been made, they have been rejected as frivolous. I suggest that this phenomenon may result in part from political obstacles to coalescing around and funding a substantive due process argument and in part from the shadow Lochner v. New York casts over arguments that may be characterized (even inaccurately) as sounding in economic due process. The ACA litigation demonstrates one way in which Lochner's anticanonicity distorts modern legal argument.

Number of Pages in PDF File: 21

Keywords: Affordable Care Act, Obamacare, Lochner, commerce clause, federalism, due process, substantive due process, anticanon

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Date posted: May 25, 2012 ; Last revised: July 24, 2012

Suggested Citation

Greene, Jamal, What the New Deal Settled (May 24, 2012). University of Pennsylvania Journal of Constitutional Law, Forthcoming; Columbia Public Law Research Paper No. 12-307. Available at SSRN: http://ssrn.com/abstract=2066256

Contact Information

Jamal Greene (Contact Author)
Columbia University - Law School ( email )
435 West 116th Street
New York, NY 10025
United States
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