Does the ObamaCare individual mandate make contracts unenforceable?

Ed Morrissey

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…

…Foley’s point in the video is well taken.  If the individual mandate passes muster because duress does not apply when the federal government applies it, then the courts will have given carte blanche to tyranny.  Where does that power end?  Buying cars certainly implicates interstate commerce; will the government have the power to force us to sign purchase contracts for Chevy Volts?  What would be the difference between that and health insurance?  Thanks to the bailouts, the government has an enduring stake in GM, and at some point in time every person needs transportation, even if they are perfectly satisfied with riding a bike or hailing a cab now.

Here’s an even more interesting question.  If coercion negates these contracts, as it should, then the insurance company won’t be under any obligation to pay for your health care, either.  After all, ObamaCare forces them to accept all applicants now, regardless of pre-existing conditions, so they too are under duress.  Americans might be buying a lot of vaporware in 2014 if a later court decides to stay on the side of centuries of precedent.

The complete article, with the video of Elizabeth Price Foley, is at

click on the image to enlarge

Related: Scalia Courted as Unlikely Obama Ally in Top Court Health Battle

…“It would be a huge coup for the administration to win Scalia over and certainly in the realm of possibility,” said Theodore Ruger, a constitutional and health-care law professor at the University of Pennsylvania Law School in Philadelphia.

The Obama administration needs the vote of at least one of the five Republican appointees on the nine-member court to uphold the law and its requirement that everyone get insurance. It is appealing to Scalia based on the justice’s own words from a 2005 opinion in an unrelated case affirming the federal government’s power to control locally grown medical marijuana.

“Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general economic regulation of interstate commerce,” Scalia wrote.

Whether that opinion suggests Scalia may vote to uphold the health-care law is a matter of dispute. The administration will have to overcome the conservative instincts of a justice who opposes abortion and gay rights and wrote the decision conferring constitutional protection for gun ownership…

Also, Catholic bishop warns HHS mandate will mean an end to Catholic hospitals, clinics, charities

Will Catholic bishops eventually drop their objections to the HHS mandate and comply, even though it would require them to fund and facilitate access to contraception, sterilization, and abortifacients like IUDs and “ella” that violate their deeply-held doctrines on the sanctity of life?  Not according to Francis Cardinal George, archbishop of Barack Obama’s home town of Chicago.  In a missive to parishioners on the first Sunday of Lent, Cardinal George warns that the Catholic Church will shut down its hospitals, clinics, and charities before submitting to the mandate — and provides a little history lesson as well…

Obamacare Hurts Obama in Battleground States [with links to several related articles]

…In a USA TODAY/Gallup Poll of the nation’s dozen top battleground states, a clear majority of registered voters call the bill’s passage “a bad thing” and support its repeal if a Republican wins the White House in November. Two years after he signed the Patient Protection and Affordable Care Act— and as the Supreme Court prepares to hear arguments about its constitutionality next month — the president has failed to convince most Americans that it was the right thing to do…


UpdateBig Surprise: Obamacare’s Pre-Existing Condition Plan Costing Twice as Much Per Enrollee as Originally Estimated

Here’s the latest “it’s costing twice as much as we thought” revelation from the people who are working 24/7 to make health care more affordable…

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