Could 1st-year contract law derail ObamaCare?

Posted by: Phineas on February 29, 2012 at 1:01 pm

**Posted by Phineas

Oh, this is interesting, to say the least. The Institute for Justice has filed an amicus curiae brief (PDF) in the ObamaCare case soon to be heard by the Supreme Court. The crux of their argument is that the mandate compels the individual to agree to a contract, but, under centuries old (1) precedents and principles of contract law, all contracts must be voluntary and no contract made under compulsion is binding.

Here’s video of the IJ’s Elizabeth Foley, a constitutional law professor (2), explaining the issues at hand:

And here’s the crux of their argument:

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.

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.

I have to say, this looks like a solid line of attack, albeit I’m not a lawyer. But, if it’s true this attacks a fundamental, longstanding, hoary principle of law, this may be what it takes to push Kennedy and one other moderate-to-liberal justice to strike down the mandate.

Any legal eagles in the audience care to read the brief and comment?

via Hot Air, where Ed has some good commentary.

(1) Seriously. Not only does it cite cases from the early Republic, but even from English case law of the 17th century. Made my History-geek heart flutter with delight, it did.
(2) A real one, unlike the current president.

UPDATE: Fixed the broken link to the amicus brief, thanks to Conservative Woman in the comments.

(Crossposted at Public Secrets)

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7 Responses to “Could 1st-year contract law derail ObamaCare?”


  1. Carlos says:

    Ya know, it’s not just Obhammud who should lose his job over this, it’s every stinkin’ congressperson that voted for that hideous piece of crap, whether in committee or on the floors of the House or Senate.

    But an especial swift kick on the backside should be reserved for the thieves who made special deals for their votes. That is the worst kind of representation possible, and such a horrendous violation of their sworn oath.

  2. Tango says:

    …preach it, Carlos! ;-)

  3. Carlos says:

    Hey, I’m just a po’ ol’ country boy who calls ’em like I see ’em, and from my perspective there are few things worse in a politician than violating one’s oath of office.

  4. Matt says:

    Carlos, how could anything you have to say after calling our President “Obhammud” have any relevance or be taken seriously? Your bigotry trumps any thin thread of meaningful argument you may have once had.

  5. Carlos says:

    @Matt: Again, I just call ’em like I see ’em.

    And since the president has done absolutely nothing to dispel rumors that he is a closet Muslim (and in fact has done much to fuel them), I hardly see where you have the right to call me a bigot.

    Except that that is the fallback position with liberals: If one can’t win an argument on merit, call your opponent a raaaciiiist (or bigot) and walk away knowing that you’ve automatically trumped any sane argument with drivelly, insipid inanity.

  6. crusadermark says:

    This concept of mutuality of assent or meeting of the minds is not only first year law school material, it is in most cases covered on the first day of contracts. And without a shared agreement to the exact terms of the contract, no contract is formed.

    Say an aluminum siding salesman knocked on your door and offered to install siding on your house for x amount. And say you just stand there in the doorway and say nothing. The contract is not formed and the purported agreement is unenforceable because you did not positively assert an acceptance to the salesman’s offer. He goes ahead and submits the order to his company and they install new siding on your house and send you a bill. You are under no legal obligation to pay the bill because you never accepted the salesman’s offer. There was no meeting of the minds and an enforceable contract was not formed.

  7. crusadermark says:

    I would like to add that this Obamacare scheme is no different than the contracts the Mafia makes with it’s victims. When Don Corleone says that he is going to make someone an offer they can’t refuse, the implication is that non-acceptance is not an option unless the offeree is willing to suffer pain or death.