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.
Election Law’s Lochnerian Turn (forthcoming Boston University Law Review), Abstract:
Part of a discussion on electoral “dysfunction,” this Essay suggests that the Roberts Court has come to view a good deal of contemporary electoral regulation as impermissibly redistributive. The Court, moreover, sees the type of political participation displaced by many contemporary regulations as a neutral baseline against which to gauge challenged regulations rather than itself the product of affirmative regulation. Put differently, this Essay presses the claim that the present Court confronts contemporary efforts to regulate the electoral process much like the Lochner Court approached progressive wage and hour legislation a century ago. It suggests that much of what the Roberts Court has been up to in the electoral arena may be explained by the dominant understanding of the Lochner era.