Oh, this is interesting, to say the least. The Institute for Justice has filed an amicus curiae brief (PDF) in the ObamaCare case soon to be heard by the Supreme Court. The crux of their argument is that the mandate compels the individual to agree to a contract, but, under centuries old (1) precedents and principles of contract law, all contracts must be voluntary and no contract made under compulsion is binding.
Here’s video of the IJ’s Elizabeth Foley, a constitutional law professor (2), explaining the issues at hand:
And here’s the crux of their argument:
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.
I have to say, this looks like a solid line of attack, albeit I’m not a lawyer. But, if it’s true this attacks a fundamental, longstanding, hoary principle of law, this may be what it takes to push Kennedy and one other moderate-to-liberal justice to strike down the mandate.
Any legal eagles in the audience care to read the brief and comment?
via Hot Air, where Ed has some good commentary.
(1) Seriously. Not only does it cite cases from the early Republic, but even from English case law of the 17th century. Made my History-geek heart flutter with delight, it did.
(2) A real one, unlike the current president.
UPDATE: Fixed the broken link to the amicus brief, thanks to Conservative Woman in the comments.
(Crossposted at Sister Toldjah)