Hobby Lobby and the Pathology of Citizens United
Ellen D. Katz
University of Michigan Law School
June 10, 2014
Duke Journal of Constitutional Law & Public Policy, Forthcoming
U of Michigan Public Law Research Paper No. 413
This Essay explores a distinct way Citizens United v. Federal Election Commission promises to influence pending challenges to the Patient Protection and Affordable Care Act (ACA), and a host of cases to come. Specifically, the way Citizens United approached precedent will likely affect, and radiate well beyond, the current ACA challenges. Citizens United read a number of prior decisions to adopt rules those decisions deliberately chose not to espouse. While this is not an entirely new move for the Court, the contribution of Citizens United was to normalize this disconcerting stance. The Roberts Court seems increasingly comfortable approaching precedent just as it did in that case. This Essay identifies this move as a consistent practice across a number of decisions, and explains why it is cause for deep concern.
Number of Pages in PDF File: 15
Keywords: Citizens United, Hobby Lobby, Affordable Care Act, precedent, Roberts Court
JEL Classification: K10, K30, K32, K40, K41Accepted Paper Series
Date posted: May 18, 2014 ; Last revised: June 13, 2014
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