Obamacare: Contract killer
By: Times-Dispatch Staff | Richmond Times Dispatch
Published: February 27, 2012
Just when you think everything that can be said about Obamacare's constitutionality has been said, along comes another legal brief that makes a new point.
The latest was filed by the Arlington-based Institute for Justice, a nonpartisan, libertarian public-interest law firm. The institute points out that the Affordable Care Act's individual mandate — the requirement to purchase insurance — is not only an unprecedented expansion of federal power. It also undermines several centuries of contract law.
From Hugo Grotius in the 17th century through William Story in the 19th and up to the present, legal doctrine has held that contracts are not valid unless they are entered into by mutual assent. If one party signs a contract as the result of fraud or under duress, it cannot be valid. But if Congress compels people to buy insurance policies — not as a precondition of exercising a privilege such as driving, but as a consequence of having been born — then, the institute argues, this would undermine centuries of contract law.
Supporters of the Affordable Care Act are apt to say overturning it would amount to judicial activism — that the judiciary ought to defer to the political branches. But the institute's Clark Neily and Dick Carpenter show in their September study, "Government Unchecked," that the courts have been, if anything, too deferential. They find that during the past half-century the Supreme Court has struck down only 103 out of the 15,817 laws passed by Congress, and less than one-twentieth of 1 percent of the more than 1 million state laws passed during the same period. In any given year, the Supremes will strike down only three out of every 5,000 laws enacted around the country.
The Institute for Justice argues that keeping legislative and executive branch officials within the proper bounds of their authority is not activism — the act of legislating by judges — but rather judicial engagement, which is entirely proper. That sounds about right — and the Affordable Care Act would seem the ideal point at which to start.
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