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Obamacare’s contract problem
Washington Post ^ | March 23, 2012 | George Will

Posted on 03/24/2012 11:41:18 AM PDT by NCjim

On Monday the Supreme Court begins three days of oral arguments concerning possible — actually, probable and various — constitutional infirmities in Obamacare. The justices have received many amicus briefs, one of which merits special attention because of the elegant scholarship and logic with which it addresses an issue that has not been as central to the debate as it should be.

Hitherto, most attention has been given to whether Congress, under its constitutional power to regulate interstate commerce, may coerce individuals into engaging in commerce by buying health insurance. Now the Institute for Justice (IJ), a libertarian public interest law firm, has focused on this fact: The individual mandate is incompatible with centuries of contract law. This is so because a compulsory contract is an oxymoron.

(Excerpt) Read more at washingtonpost.com ...


TOPICS: Constitution/Conservatism; Crime/Corruption; Government; News/Current Events
KEYWORDS: healthcare; heathcare; individualmandate; obamacare

1 posted on 03/24/2012 11:41:23 AM PDT by NCjim
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To: NCjim

coerce individuals into engaging in commerce by buying health insurance.coerce individuals into engaging in commerce by buying health insurance.


Sttttttrrrrrreeeetttttttttccccccccchhhhhhhhhhhh.....

Deserted tropical island here I come.


2 posted on 03/24/2012 11:47:27 AM PDT by Leep (Dueling tag lines=don't worry,you'll be a vegetable guy soon<>It's gonna be a Newt day!)
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To: Leep

I don’t see this as a stretch at all.


3 posted on 03/24/2012 11:54:42 AM PDT by basil (It's time to rid the country of "gun free zones" aka "Killing Fields")
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To: NCjim

I like that.

Congress created a problem and now says they must have authority to “fix” it - instead of just eliminating the problem...


4 posted on 03/24/2012 11:54:41 AM PDT by Principled
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To: NCjim

Excellent summary - everybody go read the article!


5 posted on 03/24/2012 12:06:23 PM PDT by patton (DateDiff)
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To: NCjim

bookmark


6 posted on 03/24/2012 12:08:35 PM PDT by GiovannaNicoletta ("....in the last days, mockers will come with their mocking... (2 Peter 3:3))
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To: Leep

Not a stretch at all.


7 posted on 03/24/2012 12:15:24 PM PDT by ThirdMate
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To: NCjim
I think they'll do it anyway (implement Obamacare).

Obama didn't hesitate to rewrite bankruptcy law when he favored the unions over bondholders at GM.

He'll do the same here, and dare anyone to try and stop him.

What action can be taken against him when he does?

8 posted on 03/24/2012 12:41:13 PM PDT by ZOOKER ( Exploring the fine line between cynicism and outright depression)
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To: Leep

Only to those who post without reading.


9 posted on 03/24/2012 12:45:51 PM PDT by Jacquerie (No court will save us from ourselves.)
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To: NCjim

The brief in Will’s article cites common law, Supreme Court commerce clause precedent, and a South Carolina state supreme court decision - BUT there’s *nothing* on International Law - Ruth Buzzie Ginsburg will not be pleased!!


10 posted on 03/24/2012 12:58:31 PM PDT by Stosh
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To: ZOOKER
What action can be taken against him when he does?

November 6, 2012, USA National Election.

11 posted on 03/24/2012 1:09:41 PM PDT by USS Alaska (Nuke the terrorists savages.)
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To: Leep

I am an attorney and this article is 10000% correct.


12 posted on 03/24/2012 1:12:02 PM PDT by GlockThe Vote (The Obama Adminstration: 2nd wave of attacks on America after 9/11)
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To: NCjim

For three years nowm, I have asked one simple question: Why do we need DeathCare when we already have a Health Insurance Portability and Accountability Act (HIPAA) AND a Child Health Insurance Program Reauthorization Act (CHIPRA), both fully funded through 12/31/2013. I have asked Delaware’s Congressional delegation several times, with zero results.

I plan on asking Rep. Gingrich that very question on his trip to Delaware on Monday. Let’s see if I can get an answer.


13 posted on 03/24/2012 1:21:13 PM PDT by NTHockey (Rules of engagement #1: Take no prisoners)
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To: NCjim

While Congress may regulate interstate commerce, it may not regulate intrastate commerce.All health insurance was intrastate prior to Obamacare.

Also, the Federal government cannot force someone to buy any product at the cost of their personal liberty.

If they think they can, it is time for a major reset in Washington DC by the people.


14 posted on 03/24/2012 1:21:57 PM PDT by exit82 (Democrats are the enemies of freedom. Be Andrew Breitbart.)
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To: NTHockey

Excellent comment. By now you know that Delaware’s Congressional delegation doesn’t have enough brain power to light a 25 watt bulb.They must spend the whole time they commute on Amtrak thinking how the heck did they get these plum jobs with no ability and doing no work.

Do you know where Newt will be on Monday in DE?


15 posted on 03/24/2012 1:26:54 PM PDT by exit82 (Democrats are the enemies of freedom. Be Andrew Breitbart.)
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To: NCjim

You should read the amicus brief - great argument:

http://www.ij.org/images/pdf_folder/amicus_briefs/obamacareamicus.pdf

Some quotes:

“As Chief Justice Marshall declared in McCulloch v. Maryland, for a law to be necessary and proper, the “end [must] be legitimate” and it must “consist with the letter and spirit of the constitution . . . .” 17 U.S. (4 Wheat.) 316, 421 (1819). But it is not consistent with the letter and spirit of the Constitution for Congress to compel individuals to engage in commerce and thereby to eviscerate the concept of mutuality of assent.”

“As this Court recently noted in Bond v. United States, 131 S. Ct. 2355 (2011), the purpose of the Constitution’s scheme
of enumerated powers and federalism is to protect individual liberty. Id. at 2364 (citing N.Y. v. United
States, 505 U.S. 144, 181 (1992) (noting that federalism
secures liberties to citizens)). Allowing Congress to compel individuals to enter into contracts against their will would destroy a fundamental precept of contract law and would have a devastating impact on individual liberty.”

“The importance of mutual assent was understood long before the American Founding as a prerequisite to the legal enforcement of an agreement. See, e.g., Hugo Grotius, The Rights of War and Peace 147-48 (A.C. Campbell trans., M. Walter Dunne 1901) (1625)(“In all contracts, natural justice requires that there should be an equality of terms. . . . [That equality] includes also an entire freedom of consent in both [parties to the contract].”); Samuel Pufendorf, On the Duty of Man and Citizen According to Natural Law 70 (Michael Silverthorne trans., Cambridge Univ. Press 1991) (1682) (“Our unconstrained consent is most
particularly required, if our promises and agreements are to oblige us to give or do anything where we previously had no obligation, or to refrain from doing something which we could previously do of right.”).”

“After ratification of the Constitution, American courts continued to follow this common-law doctrine. See, e.g., Utley v. Donaldson, 94 U.S. 29, 47 (1876) (“There can be no contract without the mutual assent of the parties. This is vital to its existence. There can be none where it is wanting.”); The Frances, 12 U.S. (8 Cranch) 354, 357 (1814) (“It has been very truly urged for the captors, that to vest this property . . . a contract is necessary; and that to form a contract, the consent of two parties is indispensable.”

“Similarly, H.T. Colebrooke’s 1818 Treatise on Obligations and Contracts declared, “A true assent implies the serious and perfectly free use of power, both physical and moral, to give assentment. This essential requisite is wanting in promises made in jest or compliment: or made in earnest, but under mistake and illusion; or under deception and
delusion; or in consequence of constraint and compulsion.””

“One of the most influential of those philosophers, Emmerich de Vattel, articulated the necessity of contractual
freedom in 1758: “Men . . . are perfectly free to buy or not buy a thing which is for sale. . . . No man has any
right . . . to sell what belongs to him to one who does not wish to buy. . . . By reason of the natural liberty which belongs to all men, it is for me to judge whether I have need of [things to buy] or if I am in a position to sell them to you. . . .””

“William W. Story, A Treatise on the Law of Contracts Not Under Seal 57 (1844) (“The assent however must not only be mutual, but it must be freely and voluntarily given in order to create a valid contract. Compulsion or duress will
therefore avoid any agreement.”); Jackson v. Kniffen, 2 Johns. 31, 34 (N.Y. Sup. Ct. 1806) (“[I]t is essential to the validity of every deed that the party making it be free from restraints, and not under duress.”) (citations omitted).”

“Logically, then, the anti-commandeering principle must define the limits of the commerce power as well. That is, if the Tenth Amendment does not permit Congress to compel a state to take title to radioactive waste, then the Commerce Clause must not delegate that power to Congress. Yet the commerce power undoubtedly allows Congress to regulate interstate commerce in radioactive waste. It follows that the power to regulate commerce does not include the power
to compel a party to take title to goods or services
against its will. Much like the individual mandate, the take-title provision in New York sought to compel states to acquire a product they did not want, leading the Court to conclude that the Tenth Amendment – and, by implication, the Commerce Clause – did not permit such compulsory commercial transactions.”

“Although the take-title provision at issue in New York operated on the states, rather than individuals, the distinction between regulation and compulsion must apply as much when Congress is attempting to compel individuals to purchase a product as it does when Congress attempts to compel states to do so.”

“Indeed, in Bond v. United States, 131 S. Ct. 2355 (2011), this Court unanimously acknowledged that the purpose of the Tenth Amendment and the federal system of government that it preserves is to protect individual liberty, not simply state sovereignty.”

“In light of the foregoing, it cannot be “proper,” within the meaning of the Necessary and ProperClause, to exercise the commerce power in a way that eviscerates hundreds of years of understanding of the very essence of legally binding contracts. The Necessary and Proper Clause is designed to ensure that Congress has an array of means to accomplish permissible ends, which are defined by the enumerated powers. McCulloch v. Maryland, 17 U.S. (4 Wheat.)
316, 419 (1819) (“[W]e think the sound construction of the constitution must allow to the national legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution . . . .”). But the Clause was not designed to allow Congress to accomplish ends beyond the scope of its enumerated powers. As Chief Justice Marshall declared in McCulloch, for a law to be necessary and proper, the “end [must] be legitimate” and it must “consist with the letter and spirit of the constitution
. . . .” Id. at 421. But, as shown above, it is not consistent with the letter and spirit of the Constitution
for Congress to compel individuals to engage in commerce and thereby to eviscerate the concept of mutuality of assent. Indeed, here the government is attempting to use
the Necessary and Proper Clause in the way the McCulloch Court said it could not be used. As the Court stated in McCullough, “should congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not intrusted to the government; it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say, that such an act was not the law of the land.” Id. at 423 (emphasis added).”

“This is a classic bootstrapping argument. Using PPACA’s market reforms as its base, Congress is attempting to accomplish an object not entrusted to it as part of its enumerated powers – namely, the power to compel contractual relations. The government asserts that the individual mandate is a “necessary and proper” means to effectuate the insurance market reforms contained elsewhere in PPACA, reasoning that without the mandate, the entire insurance market could collapse due to adverse selection. As the
government’s brief explained it, the “guaranteed issue
and community-rating [market reforms] enacted in isolation create a spiral of higher costs and reduced coverage because individuals can wait until they are sick.” Id. at 18. Because PPACA’s market reforms, standing alone, would actually harm the health insurance market, the government claims that the individual mandate is “necessary” to keep the health insurance market viable.”

“But it is Congress that created that problem in the first place. Surely it cannot be “proper” for Congress to enact regulations of commerce (here, regulations of health insurance) that are so harmful to the survival of that commercial market that it would then be “proper” to give Congress the additional, awesome power to compel contractual arrangements. The invocation of the Necessary and Proper Clause in this case elevates means over ends, contrary to the Clause’s original meaning and purpose. Under the pretext of regulating the health insurance market, the government seeks to use the Necessary and Proper Clause to validate a qualitatively different power than those enumerated in Article I, Section 8 – the power to
compel commercial transactions. Using the Necessary and Proper Clause as a bootstrapping mechanism to expand the commerce power in this manner presents the classic pretext situation roundly condemned by the Court in McCulloch.”


16 posted on 03/24/2012 2:08:16 PM PDT by Lmo56 (If ya wanna run with the big dawgs - ya gotta learn to piss in the tall grass ...)
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To: NCjim

Bump.


17 posted on 03/24/2012 2:10:33 PM PDT by Qbert ("The best defense against usurpatory government is an assertive citizenry" - William F. Buckley, Jr.)
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To: exit82
All health insurance was intrastate prior to Obamacare.

Actually, it still is ...

You cannot contract with a healthcare provider who is not licensed in your state. That is, if the provider operates in one state only [not yours], you cannot contract with it [the GOP wanted this restriction removed in Obamacare - but was shot down].

Obamacare-ites put forward the specious argument that if a national provider IS licensed in the 50 states, then it IS engaged in interstate commerce ...

18 posted on 03/24/2012 2:18:07 PM PDT by Lmo56 (If ya wanna run with the big dawgs - ya gotta learn to piss in the tall grass ...)
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To: NCjim
Either your signature will be on that health insurance policy
or your brains.
19 posted on 03/24/2012 2:23:52 PM PDT by dmcnash (y)
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To: NCjim

I think that SCOTUS will strike the mandate, but leave many of the rest of the provisions intact [severability will apply] ...

BUT, it then comes down to execution of the remaining provisions. If Congress cannot come up with the money [any other way than the mandate], then Obamacare will die on the vine. BUT, the House would probably not come up with the funding.

What I see maybe happening is a MAJOR re-working of the remaining portions of the law [tossing some - adding others that the DEMs did not include in the original bill]. Things like purchasing insurance across state lines, tort reform, etc.

All in all - MAJOR egg on the DEMs faces ...


20 posted on 03/24/2012 2:56:57 PM PDT by Lmo56 (If ya wanna run with the big dawgs - ya gotta learn to piss in the tall grass ...)
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To: exit82

No, DE “reps” are as bright as a solar-powered flashlight in a coal mine.

Newt will be at Hockessin Fire Hall in Hockessin, DE (near PA border)


21 posted on 03/24/2012 3:31:32 PM PDT by NTHockey (Rules of engagement #1: Take no prisoners)
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To: Lmo56

It won’t matter! ObamaCare has mandatory minimum coverages to where everyone is going to get the same exact plan as directed by HHS.


22 posted on 03/24/2012 3:43:18 PM PDT by GlockThe Vote (The Obama Adminstration: 2nd wave of attacks on America after 9/11)
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To: NCjim
I fear that the fix is in.

If the Court doesn't buy the argument based on the commerce clause, they may buy the argument that being required to purchase insurance is like a tax, and Congress has power to impose taxes.

The Antifederalists were right--the powers granted to the federal government would eventually lead to tyranny.

23 posted on 03/24/2012 4:21:53 PM PDT by Verginius Rufus
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To: NCjim

Settled law nor the Constitution matter not to Marxist’s bent on transforming this nation into a parasitic hell hole.


24 posted on 03/24/2012 5:10:46 PM PDT by Oldeconomybuyer (The problem with socialism is that you eventually run out of other people's money.)
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To: NCjim

Contracts where one side forces the other side into against their will, have for all history, been viewed as being null and void.


25 posted on 03/24/2012 6:43:08 PM PDT by Secret Agent Man (I'd like to tell you, but then I'd have to kill you.)
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To: Stosh

Actually, the amicus brief cites several pre 1780 court rulings. One going back to 1600’s. Read the brief. It’s only 42 pages but very well argued.


26 posted on 03/24/2012 7:19:09 PM PDT by usnavy_cop_retired (Retiree in the P.I. living as a legal immigrant)
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To: NTHockey
No, DE “reps” are as bright as a solar-powered flashlight in a coal mine.

LOL! Thanks for the info on Newt's appearance in Hockessin.

27 posted on 03/24/2012 7:54:28 PM PDT by exit82 (Democrats are the enemies of freedom. Be Andrew Breitbart.)
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To: Jacquerie

I was refering to the
coercing individuals into engaging in commerce. I wasn’t saying the argument in the article was wrong.
Although, I have been guilty of not reading an entire article or misreading it.
Otherwise, if the g’mint actually forces people to buy healthcare its all over..deserted tropical island time:)


28 posted on 03/25/2012 5:05:43 AM PDT by Leep (Dueling tag lines=don't worry,you'll be a vegetable guy soon<>It's gonna be a Newt day!)
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To: Jacquerie

I was refering to the
coercing individuals into engaging in commerce. I wasn’t saying the argument in the article was wrong.
Although, I have been guilty of not reading an entire article or misreading it.
Otherwise, if the g’mint actually forces people to buy healthcare its all over..deserted tropical island time:)


29 posted on 03/25/2012 5:06:00 AM PDT by Leep (Dueling tag lines=don't worry,you'll be a vegetable guy soon<>It's gonna be a Newt day!)
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To: Jacquerie

I was refering to the
coercing individuals into engaging in commerce. I wasn’t saying the argument in the article was wrong.
Although, I have been guilty of not reading an entire article or misreading it.
Otherwise, if the g’mint actually forces people to buy healthcare its all over..deserted tropical island time:)


30 posted on 03/25/2012 5:06:00 AM PDT by Leep (Dueling tag lines=don't worry,you'll be a vegetable guy soon<>It's gonna be a Newt day!)
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To: Leep

-——if the g’mint actually forces people to buy healthcare its all over..-——

I saw a commercial on TV Friday that is a strong precedent for not forcing people to buy insurance.

The government and insurance buying problem has been around for a while in the form of flood insurance. If you want flood insurance and live in a flood plain you must buy it from the government. You are not forced to buy it and can self insure

The congress that wrote the law, likely including many who wrote the healthcare fiasco, knew that to force floodplain dwellers to buy insurance was unconstitutional


31 posted on 03/25/2012 5:13:43 AM PDT by bert (K.E. N.P. +12 ..... Crucifixion is coming)
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