ObamaCare, contracts, and duress


The Institute for Justice has filed a fascinating new legal brief against the ObamaCare individual mandate, raising a devastating point about the damage ObamaCare’s core concept of “mandated commerce” will do to our legal understanding of contract law:

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. (For a copy of IJ’s brief, visit:

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.

(Emphasis mine.)  The Institute also produced a short video explaining their legal brief:

Now that is some world-class outside-the-box thinking.  Hopefully the Supreme Court does the right thing, and strikes down Obama’s blatantly unconstitutional health care “reform,” before we all get trapped inside the box, while ObamaCare nails it shut.