This is a very interesting take on Obamacare and something that we have discussed here, the Law of Unintended Consequences.
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: http://www.ij.org/PPACAbrief.)
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.