George Will writes about Obamacare’s contract problem. It’s hard for me to understand how some don’t understand that this particular legislation crosses a Rubicon. Even if one were to agree with the goal and the approach, what is the limiting principle to restrain the new grant of power?
If you progressives had only been more straightforward, and told the American people “we are going to raise taxes to provide universal/single-payer ‘free’ healthcare,” you wouldn’t be in this Constitutional mess. But you couldn’t do that, could you?
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.”
…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 powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people”), 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.