When a reporter asked then-Speaker of the House Nancy Pelosi (D-Calif.) back in October 2009 “where specifically does the Constitution grant Congress the authority to enact an individual health insurance mandate?”, Pelosi's response was to dismiss both the reporter and the question. “Are you serious?” she sneered. Nadeam Elshami, Pelosi’s communications director, later amplified his boss’s response, telling CNS News, “You can put this on the record. That is not a serious question.”
The U.S. Supreme Court thinks that it is. On Monday March 26, the Supreme Court will begin hearing three days of oral arguments devoted to the constitutionality of the Patient Protection and Affordable Care Act, including its controversial "requirement to maintain minimum essential coverage." This requirement, also known as the individual mandate, forces all Americans to buy or secure health insurance under what Congress claims is its power "to regulate commerce...among the several states."
Twenty-six of those states, plus the National Federation of Independent Business and several individuals, are challenging the health care law, claiming it is an illegal power grab by the federal government that tramples the Constitution and undermines the principles of federalism.
Contrary to what Nancy Pelosi would have you believe, these challengers have a strong and serious case. Here are four of their best arguments against the individual mandate.
4. The Individual Mandate Threatens the Foundations of Contract Law
American contract law rests on the principle of mutual assent. If I hold a gun to your head and force you to sign a contract, no court of law will honor that document since I coerced you into signing it. Mutual assent must be present in order for a contract to be valid and binding.
This view was widely shared by the framers and ratifiers of the U.S. Constitution. Here’s how Pennsylvania lawyer James Wilson, a signer of both the Declaration of Independence and the Constitution, put it in one of his legal lectures:
The common law is a law of liberty. The defendant may plead, that he was compelled to execute the instrument. He cannot, indeed, deny the execution of it; but he can state, in his plea, the circumstances of compulsion attending his execution; and these circumstances, if sufficient in law, and established in fact, will procure a decision in his favour, that, in such circumstances, he did not bind himself.
The individual mandate turns this longstanding legal principle on its head. After all, there’s nothing mutual about the government forcing you to enter into a binding contract with a private company. As the Institute for Justice, the public interest law firm that pioneered this argument, explains in the powerful friend of the court brief it filed in the case, the framers of the Constitution “would never have given, and in fact did not give, Congress, through the guise of the Commerce Clause, the power to gut the foundation upon which the entirety of contract law rests.”