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What the New Deal Settled

21 Pages Posted: 25 May 2012 Last revised: 24 Jul 2012

Jamal Greene

Columbia University - Law School

Date Written: May 24, 2012


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.

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

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:

Jamal Greene (Contact Author)

Columbia University - Law School ( email )

435 West 116th Street
New York, NY 10025
United States

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