Forcing Americans to buy something is a coerced contract, and a coerced contract is an oxymoron
under the law.
The constitutionality of the health care reform law known as the Affordable Care Act is currently
pending before the Supreme Court, and at the heart of the debate is the constitutionality
over a portion of the law known as the individual mandate.
This portion of the law basically says every American has to buy health insurance whether
they want to or not.
Now the reason why this is so controversial is because contrary to sort of a popular misconception,
Congress doesn’t have the power to pass any kind of law it wants to in the name of
the general welfare.
Instead, every time Congress passes a law it has to base that law in 1 of 17 very specific
enumerated power sources listed there in Article 1, Section 8 of the Constitution.
In the case of the individual mandate, the power source relied upon is Congress’s power
to “regulate commerce.”
So the $6 million question, if you will, is whether or not Congress, using its power to
regulate commerce, can regulate people who are not buying something, who are sitting
out the marketplace.
In other words, does the power to regulate commerce include the power to compel it?
Now the role of the Supreme Court in this case is very important, and it’s often misunderstood.
A lot of people think the Supreme Court can just uphold this law and rubber stamp it if
they agree with the policy decision by Congress to try to solve the problem of access to health
care for the uninsured.
Instead, the Court’s role in this case is simply to interpret the relevant portion of
the constitutional text, in this case the words “regulate commerce,” and figure
out what that means.
Does it include the power to coerce or compel commerce or not?
The Institute for Justice submitted a brief to the Supreme Court of which I was one of
the coauthors.
And what we say in our brief is that there’s no way the power to regulate commerce can
be reasonably interpreted as including the power to compel commerce.
The reason for that is actually quite simple.
It’s because for hundreds of years prior to the ratification of the Constitution it’s
been understood that to be legally binding a contract has to be based on the voluntary
mutual assent of the parties to the contract.
So in other words, the law has always presupposed that you cannot coerce a contract—that a
coerced contract is in fact an oxymoron under the law.
So we have to figure out whether or not compelled commerce is within the ambit of the power
to regulate commerce.
The implications in this case for individual liberty are enormous because presumably if
the power to regulate commerce includes the power to compel or coerce contracts, lifelong
contracts against your will, then presumably it doesn’t just stop with this individual
mandate.
Our individual liberty is at stake because they can force us to buy anything else.
So you have to realize that whether you like the idea of providing access to health insurance
or not, you should, as an American, have deep constitutional concerns about the implications
of upholding this individual mandate.
It would effectively eviscerate the constitutional architecture that we’re supposed to have,
where the federal government is supposed to only have limited and enumerated powers only.
This version of a commerce clause would be unstoppable.
It would create essentially an omnipotent legislature.
And that’s exactly the kind of legislature that our founding generation spilled its blood
to resist.