Hobby Lobby and the Pathology of Citizens United

15 Pages Posted: 18 May 2014 Last revised: 13 Jun 2014

Ellen D. Katz

University of Michigan Law School

Date Written: June 10, 2014

Abstract

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.

Keywords: Citizens United, Hobby Lobby, Affordable Care Act, precedent, Roberts Court

JEL Classification: K10, K30, K32, K40, K41

Suggested Citation

Katz, Ellen D., Hobby Lobby and the Pathology of Citizens United (June 10, 2014). Duke Journal of Constitutional Law & Public Policy, Forthcoming; U of Michigan Public Law Research Paper No. 413. Available at SSRN: https://ssrn.com/abstract=2437958

Ellen Katz (Contact Author)

University of Michigan Law School ( email )

625 South State Street
LR 960
Ann Arbor, MI 48109-1215
United States
734-647-6241 (Phone)

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