Coerced Into a Contract

This is a very interesting take on Obamacare and something that we have discussed here, the Law of Unintended Consequences.

Via Ed Morrissey at Hot Air:

I must admit that until I heard this argument from the Institute for Justice, I never considered the implications of ObamaCare requiring individuals to sign contracts for insurance coverage.  In any other context, signing a contract under threat of force constitutes duress, which negates the contract under centuries-old legal standards.  What happens when government applies the threat of force, through fines and presumably an eventual jail sentence for non-compliance?  IJ has filed an amicus brief to the Supreme Court asking this very question, and constitutional law professor Elizabeth Price Foley explains that the individual mandate violates the principle of mutual assent:

Constitutional law professor Elizabeth Price Foley, who is the executive director of the Institute’s Florida Chapter and who co-authored IJ’s brief, said, “The individual mandate violates a cardinal rule of contract law—to be enforceable, all agreements must be voluntary. The Framers understood this, and would never have given the federal government the power to force individuals into lifelong contracts of insurance. The Court should not allow the government to exercise this unprecedented and dangerous power.”

As IJ’s brief shows, the principle of mutual assent, under which both parties must consent for a contract to be valid, is a fundamental principle of contract law that was well understood during the Founding era and is still a cornerstone of contract law today. Indeed, contracts entered under duress have long been held to be invalid. Yet the mandate forces individuals to enter into contracts of insurance that would never be valid under this longstanding principle. (For a copy of IJ’s brief, visit:

If the U.S. Supreme Court fails to strike down the individual mandate, there will be nothing to stop Congress from forcing people into other contracts against their will—employment contracts or union membership, for example. If we still have a constitutional republic in which the federal government’s powers are limited, then the Court should strike down this law.

The Institute for Justice’s brief is the only amicus brief filed with the Court that examines this case in the context of the history of contract law. The brief illustrates how the Supreme Court has recognized the principle of consent in commercial relations in its Commerce Clause and Tenth Amendment cases, and it explains why the U.S. Supreme Court has a key role in acting as a check against this unconstitutional power grab by the federal government.

This is a brilliant argument, absolutely brilliant.

26 thoughts on “Coerced Into a Contract

  1. Yepper, we have discussed this. I explain it in my terms here:

    the right to WILLINGLY contract is a natural right, but it is based on free will: as we have no natural Right to force another to do anything against their will (so long as they are not harming others in the process), then we can have no Natural Right to “force” a contract.

    HOWEVER, unless you understand that the Constitution is designed to protect the ideals and principles declared in the Declaration of Independence, you will have NO grounds upon which to make this argument as the COnstitution does not declare natural law and inalienable rights. That is declared in the Declaration, which is why we MUST reunite these two documents – as they were ever meant to be understood.

  2. In honor of our namesake:

    “When you see that trading is done, not by consent, but by compulsion – when you see that in order to produce, you need to obtain permission from men who produce nothing – when you see that money is flowing to those who deal, not in goods, but in favors – when you see that men get richer by graft and by pull than by work, and your laws don’t protect you against them, but protect them against you – when you see corruption being rewarded and honesty becoming a self-sacrifice – you may know that your society is doomed.”

    –Ayn Rand

    • Have what Kells? Is this your method of attempting to downtrodden an otherwise serious topic that is right at the forefront of our civil liberties?

      Really, if you didn’t have anything to add ….

  3. Oh, brother! Bully for you, Augger. I’m not the one who dedicated an entire post to a perceived notion. And I wasn’t intentionally changing the subject. I merely wanted to have a little sport. Good Grief! Here’s my dedication to you and B.:

    • “I’m not the one who dedicated an entire post to a perceived notion.” – There is no perceived notion here.

      @ black – sorry for lambasting you in earlier topics about your ongoing efforts to teach the Constitution to us all. I have falsely assumed we were all at an appropriate level of competency on that topic.

      I stand corrected.

      • Yes, I just noticed that (no offense toward you, Augger). And no worries, by the way. We may find ourselves ay loggerheads from time to time, but we are no enemies of each other – especially in our goals for this great nation.

      • Yes, there is.

        Wow. Can I just say that for a person who’s writing a book on fibroblastiacollagensomethingruther, you sure have the ability to let things fly completely over your head. I’m starting to lose my temper, so I’ll just do you and I a favour and shut the hello up.

          • I “think” (assume?) she was referring to me, but then it could be my self-centered arrogance getting in my way again 😉

            But if she was referring to me, I didn’t miss it, either, just chose to give it the reply my mama told me to give in such cases. :-p

  4. @Kells,

    1 – Utah’s post is most certainly not about a “perceived” notion. Obamacare is – BY DEFINITION- forced adherence. This is the negation of the contract and Utah was most correct in posting this piece – as well as the cross linking to the story he found. They are one in the same.

    2 – My first reply is more of the same as I had already addressed how the Natural Right to contract exists, but ONLY if it is entered into willingly and without coercion. Nothing earthshaking about my having written about this, I merely updated the arguments of ancient philosophers. But I did not change the subject – not even with my quote from Rand.

    3 – Upon review, the subject changed when you decided – once again – that you did not want to engage in a serious conversation and – once again – felt compelled to try to turn a POLITICAL COMMENTARY BLOG into some whimsical form of Internet theater. I do not begrudge you your predilections, but I do question why you feel you must demand that a site dedicated to serious discussion join you in your total dismissal of the real world and effects it has on our rights and liberty. And to then infer that others are to blame for YOUR actions…???

    Why not just split your time. Play on the sites designed for play and think on the sites designed for thinking.

    • Oh, please. Why don’t you and A. just loosen up. But I’ll make you happy. I’ll avoid posting around you, so as not to offend your delicate and most serious sensibilities. Believe me, I know how sensitive you are to humour. I told you to try that Calamine Lotion on the hives you broke out into upon the last joke you heard. Hope it worked.

      • Not “insensitive” to humor in the least: just don’t see any in your comments. You like to lecture me on the ways I must change, but you seem to be deaf to how widely your attempts to be funny have fallen flat on the RNL (and not just with me). At some point, you need to consider that YOU have to adjust to the medium you’re using. You may be hilarious, but, if you are, it just doesn’t translate on these pages and/or in this atmosphere. Blaming others for this says more about you than it does about the rest of us for not giving you the ovation you seem to be craving.

        But, as you seem to need it, here: “the sound of my one hand clapping.” 😉 (<<— see? Hilariously funny, gut busting, even. You can tell me how great I am now...)

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