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Institute of Justice Files Amicus Brief on Individual Mandate: “The Stakes for Individual Liberty are Enormous”

The basic premise of the amicus brief filed by the Institute of Justice addresses four primary points.

  •  THE INDIVIDUAL MANDATE VIOLATES THE LONGSTANDING AND FUNDAMENTAL PRINCIPLE OF MUTUAL ASSENT THAT IS AT THE HEART OF ALL CONTRACTS
  • THE INDIVIDUAL MANDATE ERASES THE DISTINCTION, LONG ACKNOWLEDGED BY THIS COURT, BETWEEN THE POWER TO REGULATE COMMERCE AND THE POWER TO COMPEL IT
  • THE INDIVIDUAL MANDATE IS NOT A “PROPER” EXERCISE OF CONGRESS’S POWER UNDER THE NECESSARY AND PROPER CLAUSE BECAUSE IT VIOLATES THE PRINCIPLE OF MUTUAL ASSENT
  • THIS COURT SHOULD ENFORCE APPROPRIATE LIMITS ON CONGRESS’S POWER

I’m not a lawyer, so I won’t even attempt to construct explanations pertaining to the information included in the amicus brief.  I hope one of the legal eagles here at RS might consider chiming in and sharing their knowledge of the legal system by explaining a bit more about the implications of this brief.

Just passing along the following information and the video, folks.

“If government-mandated health insurance is upheld by the U.S. Supreme Court after the Patient Protection and Affordable Care Act (PPACA) case is argued in March 2012, the Institute for Justice warns in its amicus brief that there will be dire and predictable threats to individual liberty and voluntary relations that have been the foundation of American contract law for centuries.

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.

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.”

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