Posted on 03/25/2012 7:16:59 AM PDT by Lmo56
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.
The brief, the primary authors of which are the IJ’s Elizabeth Price Foley and Steve Simpson, says that Obamacare is the first time Congress has used its power to regulate commerce to produce a law “from which there is no escape.” And “coercing commercial transactions” — compelling individuals to sign contracts with insurance companies — “is antithetical to the foundational principle of mutual assent that permeated the common law of contracts at the time of the founding and continues to do so today.”
In 1799, South Carolina’s highest court held: “So cautiously does the law watch over all contracts, that it will not permit any to be binding but such as are made by persons perfectly free, and at full liberty to make or refuse such contracts....Contracts to be binding must not be made under any restraint or fear of their persons, otherwise they are void.”
(Excerpt) Read more at washingtonpost.com ...
http://www.ij.org/images/pdf_folder/amicus_briefs/obamacareamicus.pdf
bttt
FReepers might want to weigh in on the WP poll at your link:
http://www.washingtonpost.com/opinions/obamacares-rewriting-of-contract-law/2012/03/23/gIQAVuFmWS_story.html
Ping your lists to FReep this poll:
Should the Supreme Court declare the Obama health care law unconstitutional?
Yes - 35% (3009 votes)
No - 65% (5606 votes)
Total Votes: 8,615
The Institute for Justice is a great organization.
The Wa Po poll is SOOOO bogus - since 95% of the readers are the nimrods that authored the damn bill ...
This amicus is not worth the bandwidth you used to post it.
Social Security was originally represented as a government mandated COMPULSORY social insurance annuity premium.
When FDR’s lawyers observed that the Social Insurance (aka social security) movement was in mortal danger of not passing constitutional muster in committee, and as FDR was in full panic mode as many New Deal programs were being thrown under the bus, FDR had his lawyers change his version of the proposed social insurance legislation to social security TAX.
Why is FDR relevant to Obamacare? Because the dems have been openly stating they used the FDR playbook in drafting the legislation and they deliberately included Tax Provisions in Sections 9005, 9015 and others to tax existing healthcare plans and to tax incomes and expand state medicaid.
I fully expect SCOTUS to throw a bone to voters, and to conservatives in Congress and in Statehouses by striking down the individual mandate BUT THEY WILL UP HOLD THE TAX PROVISIONS AS CONSTITUTIONAL UNDER THE 16TH AMENDMENT.
And with survival of Obamacare and its tax provisions, it will be only a matter of time before they destroy the private healthcare industry leaving nearly everyone to seek care under one of their offered expanded State Medicaid programs.
So forget these amicus busybodies, they are only churning noise in court. It is the 16th Amendment that is the Trojan Horse allowing statism to creep into American society.
16th Amendment is a 1913 class warfare artifact. It’s been a 100 year slow walk to legalizing full blown socialism in the USA.
Is there an alternative that does not require the 16th? Yes.
Read, study:
http://www.fairtax.org/site/PageServer?pagename=about_faq
Exactly. bttt
Polls don’t matter to issues before SCOTUS unless the public is so incensed as to have the justice’s heads on a spike; and the public is not so incensed.
See Post #7 for why Obamacare will survive and why it will ultimately be successful in accomplishing the socialist gameplan.
There is a greater chance of SCOTUS throwing out Obamacare based on contract law than there is of the 16th Amendment being repealed anytime soon. You can talk about the fairtax plan all day long (and I like the fairtax plan), but it is not going anywhere until things drastically start collapsing in this country. Fairtax is not going to be the thing that initiates the real change that is needed, though it or something like it might end up being an end product of that drastic change.
We’re I a Communist...first thing I’d like to see is the death of contract law...to empowering of the individual.
Can’t assume these humanoids think anything at all like the rest of us.
I put the FairTax info out there for people to get educated. I said nothing about its chances but only point it out as an alternative and it has as much chance at passage as a repeal of Obamacare does.
Indeed SCOTUS may very well throw out the individual mandate based on contract law but they will not throw out Obamacare in toto. They can’t, because if they did, then the social security tax would be vulnerable to repeal; Biden said this 2 years ago. So this is not my opinion, this is their stated gameplan but unfortunately conservatives have been diverted to ‘contract’ and commerce clause arguments. Those are red herrings.
Obamacare will survive as a TAX. And as with all taxes, they expand so Obamacare taxes will expand. The expanded taxes will take revenues from private health plans and from incomes and be redistributed to state medicaid programs. I think you can see what will happen.
Dems have become aware they don’t need the individual mandate NOW; they will get it by another means later, through TAXATION.
What is the alternative? There is none short of reading, studying and supporting the link I posted in post #7. No you will not see a repeal, there are not the votes in the Senate and there won’t be after the election. So we will have Obamacare survive; get used to it because it is an undeniable fact. We will have it.
Oh you will be happy to hear SCOTUS strike down the ‘compulsory’ mandate provisions of Obamacare. And like having drunk a little too much at a party you will wake up the next morning with a hangover and realize “Oh Crap, they left the taxes in”. And then you will hear the Sunday Morning pundits discuss how those taxes are going to slowly over time take down private health plans; and so it begins.
And realize all this socialism was not Obama’s vision. He is just the vehicle they used to push it through. No, this social health insurance movement was present in the original social security movement of the 1930s but the leaders of that movement decided to remove the social health provisions and bring them ‘later’. Well, ‘later’ is now.
i haven’t read the “Brief” yet, but under contract law you must “Knowingly and Willingly” enter into said contract.
You can NOT be “Coerced or Deceived” into a contract.
As for Social Security, if you dig a little deeper you will find that you are NOT mandated into it, see the small town in Texas who has opted all of it’s Municipal Employee’s out of it.
The only people the Government can dictate any law to are “14th Amendment” Federal U.S. citizens of the USofA Inc.
A Contract of Adhesion...only by the authority to whom you would run to seek redress.
I did not say anything that runs counter to what you posted. So you missed the point which is another point, that people are missing the point.
Try rereading Posts #7 and #13 and you will see I agree with you but try to make you aware of the bigger picture,
The dems have the bigger picture; most conservatives do not have it because we get bogged down on smaller skirmishes and ultimately have out *sses handed to us by an attack from the rear. So please read #7 and #13 carefully.
Freep’d at 1228ET, listening to the PowerBlock on SpikeTV
Should the Supreme Court declare the Obama health care law unconstitutional?
Yes - 35%
No - 65%
Total Votes: 9,100
This drives a steak rigth int the heart of it.You can not be forced against your will to sign a contract.
This drives a steak right into the heart of it.You can not be forced against your will to sign a contract.
I agree with your observation, but I would point out that the oral arguments are not intended to duplicate the work already done by those filing briefs before the Court.
The Justices have months to review the briefs, including responses to the intitial briefs and the various amici briefs (from "friends" of the Court). If I were a Justice I would be uninterested in hearing the briefs simply read out during oral arguments.
I would be interested in being able to ask a few very pointed questions which address a weakness or strength of an argument that wasn't adequately addressed in the briefs or to introduce a point-of-view not covered.
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