Reason TV may not be able to file an official amicus brief in the Supreme Court hearing this week on ObamaCare, but Nick Gillespie and his team make a pretty compelling argument for making the cradle-to-grave arc of the ObamaCare system an instantaneous action. Nick notes that the price tag for ObamaCare is growing massively from the dishonest calculations used to sell the bill to a deeply skeptical public, and that health insurance coverage doesn’t lower medical costs anyway — which makes ObamaCare the exact wrong prescription for what ails the system. Frankly, though, Nick had me sold on his very first point:
1. It Represents the End of Limited Government. The Supreme Court will issue its verdict later this spring of course, but there’s no question that if the government can force you to do something simply because you exist and draw breath, then the American experiment in limited government is over and done with. Whether it’s the mandating of eating broccoli or buying insurance, a government that can make you do whatever it wants just ain’t in the American grain.
This, I believe, will be the “big f******g deal” for the Supreme Court, and perhaps not just the Scalia wing, either. The removal of this barrier on federal government intrusion makes the Constitution meaningless, and sets the precedent that any real or perceived health-care crisis would allow Congress to act. Just wait until they start looking at obesity with these new powers. We’re already seeing cities and states pass ridiculous laws about having no toys in Happy Meals and barring the use of certain fats in restaurant cooking. When the federal government solidifies ObamaCare powers through an approving Supreme Court decision, get ready for the stepmother of all nanny states to arise.
And for Democrats who think this will be a great idea, just wait until Republicans control Washington and use those powers for their own perceptions of health-care crises. For just one example, does porn promote violence towards women? Well if enough people believe it does, that will be a public health issue, thanks to the comprehensive nature of ObamaCare and the unlimited authority it grants the federal government to regulate any kind of trade related to health care — and expect laws or regulations restricting or suppressing it. The health-care gambit literally opens everything in American lives to the whim of federal bureaucrats and the governing class. The end of limited government cuts any number of ways, and ObamaCare advocates are fooling themselves if they think they will forever control the levers of the leviathan they have launched.
Just as in the film War Games, the only winning scenario for both sides of ObamaCare is not to play the game at all. Let’s hope that saner heads prevail in the Supreme Court this term.
Addendum: George Will points out another problem with ObamaCare, which is the reversal of centuries of legal precedent on coercion in contracts:
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.”
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.
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.
If the Supreme Court strikes down ObamaCare’s mandate, it will be very interesting to see whether they address IJ’s point.