Health care case raise contract issue

March 25, 2012


— 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, 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 IJ’s Elizabeth Price Foley and Steve Simpson, says 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.” Throughout the life of this nation it has been understood that for a contract to be valid, the parties to it must mutually assent to its terms — without duress.

In addition to duress, contracts are voidable for reasons of fraud upon, or the mistake or incapacity of, a party to the contract. This underscores the centrality of the concept of meaningful consent in contract law. To be meaningful, consent must be informed and must not be coerced. Under Obamacare, the government will compel individuals to enter into contractual relations with insurance companies under threat of penalty.

Also, the Supreme Court in Commerce Clause cases has repeatedly recognized, and Congress has never before ignored, the difference between the regulation and the coercion of commerce. And in its 10th Amendment cases the court has specifically forbidden government to compel contracts.

In 1992, the court held unconstitutional a law compelling states to “take title to” radioactive waste. The court said this would be indistinguishable from “a congressionally compelled subsidy from state governments” to those who produced the radioactive waste. Such commandeering of states is, the court held, incompatible with federalism.

IJ argues: The 10th Amendment forbids Congress from exercising its commerce power to compel states to enter into contractual relations by effectively forcing states to “buy” radioactive waste. Hence “the power to regulate commerce does not include the power to compel a party to take title to goods or services against its will.” And if it is beyond Congress’ power to commandeer the states by compelling them to enter into contracts, it must likewise be beyond Congress’ power to commandeer individuals by requiring them to purchase insurance. Again, the 10th Amendment declares that any powers not given to the federal government are reserved to the states or to the people.

Furthermore, although the Constitution permits Congress to make laws “necessary and proper” for executing its enumerated powers, such as the power to regulate interstate commerce, it cannot, IJ argues, be proper to exercise that regulatory power in ways that eviscerate “the very essence of legally binding contracts.” Under Obamacare, Congress asserted the improper power to compel commercial contracts. It did so on the spurious ground that this power is necessary to solve a problem Congress created when, by forbidding insurance companies to deny coverage to individuals because of pre-existing conditions, it produced the problem of “adverse selection” — people not buying insurance until they need medical care.

IJ correctly says that if the court were to ratify Congress’ disregard for settled contract law, Congress’ “power to compel contractual relations would have no logical stopping point.” Which is why this case is the last exit ramp on the road to unlimited government.

— George Will is a columnist for Washington Post Writers Group.    


Michael LoBurgio 6 years ago

              Give up your own health care first, hypocrite!

My letter to my Senators House Members and Governor in Brownbackistan on ObamaCare

Dear Senators House Rep & Gov Brownback, as one of your 300 million 'employers',

I have a 'moral' problem with paying for your health care coverage, while you try to deny it to others at the same time.

If you persist in your scheme to allow employers to discriminate on 'moral' grounds, we the people as your employer will insist that you give up your own health care, too."

Yours truly, Mike

Michael LoBurgio 6 years ago

Liberty , Kansas Insurance Commissioner Sandy Praeger believes there are too many good things in the Affordable Care Act to be overturned.

Kansas Insurance Commissioner Sandy Praeger believes there are too many good things in the Affordable Care Act to be overturned by the court system or Congress after the presidential election.

“I think it will be very hard to overturn the law,” she said. “When you really pin people down, there are lots of aspects of this law that people like.”

Among them:

• Elimination of annual and lifetime limits on insurance coverage. She said often those who need insurance coverage the most can’t get it, and that’s why so many Americans end up in bankruptcy. She said medical care is the No. 1 reason for U.S. bankruptcy.

• Elimination of pre-existing medical conditions. People will no longer be denied insurance coverage because of illness or previous health conditions. “Today, you most likely wouldn’t get coverage if you’ve had cancer. You would be denied,” she said.

• No co-pays or deductibles on preventive services, such as annual wellness exams. “Early detection of a disease or problem can be cost-effective, and the outcomes are often better. It’s a win-win,” she said.

• Allowing children to stay on their health insurance plan until age 26. She said about 2.5 million children are now insured nationally because of this provision, which already has been implemented.

“The bottom line is we need to get to a point where everyone can get the health care they need,” Praeger said. Not only is it a moral thing, she said, but costs will continue to escalate for those who pay for insurance if something isn’t done.

She said insurance companies estimate that 25 to 30 percent of the premiums they charge are to help cover uncompensated care.

Liberty275 6 years ago

Your points are nice and all, but they will just make insurance more expensive. Of course, the real problem is the mandate which is blatantly unconstitutional.

Michael LoBurgio 6 years ago

Health Insurers: We’ll Deny Coverage For Pre-Existing Conditions If Health Mandate Is Repealed

Health-insurance officials say that if the mandate is repealed, “their first priority would be persuading members of Congress to repeal two of the law’s major insurance changes:

a requirement to cover everyone regardless of his or her medical history, and limits on how much insurers can vary premiums based on age.” Their next step would be to “set rewards for people who purchase insurance voluntarily and sanction those who don’t.”


Jon Jambor 6 years ago

Let's get this straight. When you receive payment due to an unforeseen condition, that's insurance. When you receive payment for a chronic condition, that's welfare.

Michael LoBurgio 6 years ago

House Republicans Accidentally Accept The Constitutionality Of The Affordable Care Act

On Thursday, House Republicans stripped language from their own health care bill that could “undermine their argument that the Democrats’ 2010 healthcare law abused the Commerce Clause of the Constitution,” The Hill’s Pete Kasperowicz reports. That language, included in H.R. 5, a bill to repeal the Affordable Care Act’s Independent Payment Advisory Board (IPAB), read:

Congress finds that the health care and insurance industries are industries affecting interstate commerce and the health care liability litigation systems existing throughout the United States are activities that affect interstate commerce by contributing to the high costs of health care and premiums for health care liability insurance purchased by health care system providers.

The administration is deploying this very argument in defense of the Affordable Care Act at the Supreme Court next week, insisting that since health care costs “affect interstate commerce,” the Constitution’s commerce clause empowers Congress to regulate the industry and require everyone to purchase coverage in an effort to lower insurance premiums. As a result of the mandate — that is, if people are required to purchase insurance before they fall ill — Congress can require insurance companies to accept all applicants, regardless of their pre-existing conditions, and offer more affordable coverage to those who need it most.


Cait McKnelly 6 years ago

No wonder corporations are peeing themselves over Citizens United. Now they can not only argue that they can spend billions of dollars and buy elections, they can also argue that they can't be "forced into contracts" because, well, they're people!

Richard Heckler 6 years ago

The medical insurance industry primary concern is:

  1. CEO Pay packages

  2. Shareholders

  3. Big money contributions to political campaigns

  4. Golden Parachutes

  5. Sweet retirement packages for the upper level white collar executives

Their primary concern cannot be health care because the medical insurance industry does not provide health care. The medical insurance industry is a "middle man" big profit industry that which depends on the misfortune of others which allows CEO's to retire with a $73 million bonus.

This industry also under insures the lions share of consumers = bankruptcy!

Richard Heckler 6 years ago

According to Dollars and Sense the U.S. health insurance system is typically characterized as a largely private-sector system, so it may come as a surprise that more than 60% of the $2 trillion annual U.S. health care bill is paid through taxes, according to a 2002 analysis published in Health Affairs by Harvard Medical School associate professors Steffie Woolhandler and David Himmelstein.

Blame the Industry!

  1. Obamacare did not necessarily increase the cost because the Medical Insurance Industry would have increased the cost no matter what as the industry has been doing for years under the status quo umbrella. Pay increases have not matched insurance increases for many years.

Obamacare did not provide lower cost BUT did bring more protection to consumers.

Blame the medical insurance industry,the lobbyists and our politicians on all sides of the aisle

  1. Under the current system never expect the rates to become reasonable so long as:
  2. Golden Parachutes exist
  3. Obscene CEO and BOD pay packages exist
  4. Shareholders exist
  5. the monster bureaucracy that over 2,000 insurance providers create exists
  6. the cost of 6 lobbyists per elected official exists

  7. corrupt political campaign spending against insurance reform exists such as: former aides and elected officials(now lobbyists) spending $1.4 million a day rejecting reform.

For example:

A. http://voices.washingtonpost.com/health-care-reform/2009/07/health_care_continues_its_inte.html B. http://www.campaignmoney.org/HMO_insurance_spend_to_kill_reform C. http://www.washingtonpost.com/wp-dyn/content/article/2009/07/05/AR2009070502770.html

Flap Doodle 6 years ago

Has anything of note happened since 2009, merrill? Your links seem to be stuck in that year.

just_another_bozo_on_this_bus 6 years ago

If that argument carries, it would almost certainly have to invalidate the requirement to have auto insurance, and likely a plethora of other insurance requirements.

just_another_bozo_on_this_bus 6 years ago

I made the request that you not respond to my posts, and you've been warned by admin, yet you persist. What are you trying to achieve?

Alex Parker 6 years ago

Both of you have requested the other not reply to your posts. Please respect each other's wishes.

Richard Heckler 6 years ago

The human body will always require some medical attention which is why medical care should simply be available. Breaking bones,cancer,appendicitis etc etc etc are not necessarily choices humans make. In fact most humans would not make such choices. Wouldn't a problem free body be wonderful.

Humans do not have to own a vehicle,or a home,or diamonds or expensive art work etc etc etc. These are choices. When buying auto and home insurance it is like buying protection for an investment. This protection also covers a loan from financial institutions.

Humans can move closer to jobs,shopping and/or use public transportation.

classclown 6 years ago

just_another_bozo_on_this_bus (anonymous) says…

If that argument carries, it would almost certainly have to invalidate the requirement to have auto insurance, and likely a plethora of other insurance requirements. March 25, 2012 at 8:55 a.m.


No it won't. Auto insurance is a condition that must be met for the privileged of being able to drive a car.just as being tested and awarded a license to drive is as well as - in some states - annual inspections of your.vehicle. If you choose not to, or are unable to drive for any reason, these conditions are not foisted on you.

Obama Care on the other hand is forcing insurance on you solely for the "privilege" of being alive. The only option one has to avoid having to buy insurance is to no longer live.

I have to say, I can't tell if this is a case of you honestly being incapable of understanding the difference, or if you're just scaremongering.

just_another_bozo_on_this_bus 6 years ago

It's still a requirement to enter into a private contract. You can't have it both ways.

just_another_bozo_on_this_bus 6 years ago

And anyway, not having a driver's license in this car-centric culture and economy can't be said to be truly "optional."

just_another_bozo_on_this_bus 6 years ago

And what about workman's comp? That's a requirement to buy insurance imposed on anyone hiring employees.

Liberty275 6 years ago

Does my employer have to pay for unemployment insurance simply because he wakes up every morning? Quit shilling. You look silly.

just_another_bozo_on_this_bus 6 years ago

So, in your peculiar version of libertarianism, it's not a natural right to be able to operate a business and hire employees in the conduct thereof?

classclown 6 years ago

Your second point is irrelevant. First and third points don't hold water. You are not forced to drive, nor are you forced to own a business. Again, stipulations placed on something a person voluntarily does versus a stipulation based on the fact that a person simply exists.

You're making a very strong case for honestly being incapable of understanding the difference.

just_another_bozo_on_this_bus 6 years ago

It's a difference without much, if any, distinction. Sure, you can go live under a rock and avoid the mandated insurance that pervades this society. Or, you can choose to live like 90% of folks do, mandated insurance and all.

Don't get me wrong-- I don't like the mandate, either, anymore than I like the mandates that, as currently structured, allow insurance companies to gouge consumers with relative impunity.

But the insurance industry has lots of money and all the power and political influence that goes with it. This mandate is in "Obamacare" because they insisted on it, and they and the conservative majority on the court know that if this mandate is disallowed, it's a very slippery slope to disallowing lots of other mandates.

The mandate won't be disallowed unless a majority of justices can concoct some rationale for striking down the entire law, which would be quite a stretch-- but they've already shown that they have no compunction about being activist jurists.

Orwell 6 years ago

The central thesis of Will's touted amicus is rubbish.

There is no functional difference, therefore no constitutional infirmity, between (a) the plainly permissible imposition of a tax with an exemption for those entering into an insurance contract and (b) the requirement of a contract, enforced only through a tax additive for noncompliance. Either way all taxpayers retain the option to contract and save, or decline and pay. The public benefit either way is the elimination of a current practice – imposing on the general public the inevitable (and characteristically more expensive) health care costs of the uninsured.

Just as your right to swing your fist ends at my nose, so too your "freedom" to behave irresponsibly (by refusing coverage) ends where the resulting inevitable health care costs strike my wallet.

Orwell 6 years ago

So you're one of those compassionate "Let 'em die in the streets" folks, eh? I'm not sure whether I should feel sorrier for my fellow Americans who suffer without health care, or for you and your soulless existence.

average 6 years ago

There is a very simple way this will be argued (not sure if the USSC will buy it, but it's plausible).

You are not forced to buy insurance.


If you don't, you pay higher taxes.

Likewise, if I buy insulation for my house or if I take out a mortgage, I will pay lower taxes than if I don't buy insulation or if I don't have a mortgage. That doesn't mean I'm forced to buy insulation or take out a mortgage.

Liberty275 6 years ago

What other product are you required to buy or else pay higher taxes?

Cait McKnelly 6 years ago

Interesting article here: http://www.bloomberg.com/news/2012-03-26/obamacare-is-unconstitutional-now-they-tell-us.html Basically, what it comes down to is that if SCOTUS declares AHA unconstitutional, over 70 years of law decided under the Commerce Clause will be open to challenge (including Brown vs Board of Education and the Civil Rights Act). As the author puts it, it will be a power grab by the high court unlike anything seen in the history of the US.

usnsnp 6 years ago

As it is now all people that have health insurance now pay for those that do not, because if an uninsured person goes to a hospital and is treated the money has to come from someware, higher insurance rates, higher cost for procedures. As for government making decisions about what health care you will get, now it is the insurance companies that make this decision so what is the difference.

Richard Heckler 6 years ago

I speculate Obamacare will stand minus the mandate that forces citizens to purchase insurance. Obamacare is not the best that can be had. Reverting back to the status quo would be the worst case scenario.

The new healthcare law is "going to leave tens of millions of Americans woefully underinsured, with gaps in their coverage like copayments and deductibles, so they’ll still be bankrupted by illness.

And it’s not going to control cost," Woolhandler argues. "So we still need single-payer national health insurance regardless of what happens at the Supreme Court."

  • The problem with the mandate is it’s telling people that they have to turn over their money to the private health insurance industry. There’s also $447 billion in taxpayer money that is going to be turned over to the private health insurance industry.

  • So the bill is strengthening the position of the private health insurance industry, the very industry that’s responsible for $380 billion in wasted healthcare dollars on bureaucracy and paperwork.

  • What’s going on here in Obamacare is we’re saying we’re going to get to universal healthcare by turning over hundreds of billions of dollars to the private health insurance industry, the group that’s been blocking reform and blocking change for decades. So, we’re starting off in the wrong direction here, if we’re trying to start going toward universal healthcare.

  • When it came time for Obamacare, the Senate framework, which became the backbone of the law, was written by none other than Elizabeth Fowler, whose previous job had been vice president of WellPoint, the nation’s largest private insurance company.

  • The insurance industry spent hundreds of millions of dollars lobbying on this bill. They gave hundreds of millions to the Democrats and hundreds of millions to the Republicans, both supporting and opposing the bill, but assuring that voices from the left who supported real universal healthcare, real single payer, were shut out.


Richard Heckler 6 years ago

Paying through the Taxman

Dollars and Sense: "The U.S. health insurance system is typically characterized as a largely private-sector system, so it may come as a surprise that more than 60% of the $2 trillion annual U.S. health care bill is paid through taxes, according to a 2002 analysis published in Health Affairs by Harvard Medical School associate professors Steffie Woolhandler and David Himmelstein. "

60% of $2 trillion would more than cover all in the USA under the IMPROVED Medicare Single Payer Insurance concept.

IMPROVED Medicare Single Payer Insurance concept would also save $350-$400 billion annually.

IMPROVED Medicare Single Payer Insurance concept would create 2.4 million jobs it has been suggested.

The largest obstacles that I see are:

  1. special interest campaign money

  2. elected officials as shareholders

  3. lobbyists who once were elected officials and former staff to elected officials.

  4. high dollar misinformation campaigns

All of the above obstacles represent gross misappropriations of health care dollars.

Richard Heckler 6 years ago

Healthcare Reform Report Card

Let's Compare: Single-Payer (HR 676 and S 703) Expanded Medicare for All Vs. Proposed Healthcare “Private insurance with Public Option”


Flap Doodle 6 years ago

You're stuck in 2009, bub. Come join 2012 with the rest of us. HR 676 is deader than fried chicken. Hundreds more posts plugging it won't bring it back.

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