Hitherto, most attention has been given to whether Congress, under its constitutional power to regulate interstate commerce, can 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, said 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.”
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.