Abigail R. Moncrieff, Safeguarding the Safeguards: The ACA Litigation and the Extension of Indirect Protection to Nonfundamental Liberties

64 Fla. L. Rev. 639 |

As the lawsuits challenging the Patient Protection and Affordable Care Act (ACA) have evolved, one feature of the litigation has proven especially rankling to the legal academy: the courts‘ incorporation of substantive libertarian concerns into their structural federalism analyses. The breadth and depth of scholarly criticism is surprising, especially given that judges frequently choose indirect methods, including the structural and process-based methods at issue in the ACA litigation, for protecting substantive constitutional values. Indeed, indirect protection of constitutional liberties is a well-known and well-theorized strategy, which one scholar recently termed ―semisubstantive review‖ and another theorized as ―judicial manipulation of legislative enactment costs.

This Article situates the Commerce Clause and taxing power arguments that form the basis of the ACA litigation within the broader contexts of semisubstantive review and enactment cost manipulation, arguing that the application of these structural theories is an ordinary and effectual means of raising the political cost of libertarian infringements. The Article then considers three possible distinctions between the ACA case and the ordinary case of semisubstantive review and concludes that the only viable descriptive distinction is that the ACA case involves nonfundamental rather than fundamental liberty interests—the freedom of health and the freedom of contract. The Article argues that this distinction should not make a normative difference. If anything, the case for structural invalidation should be stronger when nonfundamental liberty interests are at stake because those are, by definition, the interests that the American legal system leaves to structural protection. If the Supreme Court invalidates the ACA on structural grounds, it can argue that it is merely safeguarding the safeguards of liberty.

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