Skip to comments.Obamacare’s Contract Problem [RE: Amicus Brief Against Obamacare] - MUST READ !!!
Posted on 03/25/2012 7:16:59 AM PDT by Lmo56
On Monday the Supreme Court begins three days of oral arguments concerning possible actually, probable and various constitutional infirmities in Obamacare. The justices have received many amicus briefs, one of which merits special attention because of the elegant scholarship and logic with which it addresses an issue that has not been as central to the debate as it should be.
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 IJs 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 Carolinas 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.
(Excerpt) Read more at washingtonpost.com ...
FReepers might want to weigh in on the WP poll at your link:
Ping your lists to FReep this poll:
Should the Supreme Court declare the Obama health care law unconstitutional?
Yes - 35% (3009 votes)
No - 65% (5606 votes)
Total Votes: 8,615
The Institute for Justice is a great organization.
The Wa Po poll is SOOOO bogus - since 95% of the readers are the nimrods that authored the damn bill ...
This amicus is not worth the bandwidth you used to post it.
Social Security was originally represented as a government mandated COMPULSORY social insurance annuity premium.
When FDR’s lawyers observed that the Social Insurance (aka social security) movement was in mortal danger of not passing constitutional muster in committee, and as FDR was in full panic mode as many New Deal programs were being thrown under the bus, FDR had his lawyers change his version of the proposed social insurance legislation to social security TAX.
Why is FDR relevant to Obamacare? Because the dems have been openly stating they used the FDR playbook in drafting the legislation and they deliberately included Tax Provisions in Sections 9005, 9015 and others to tax existing healthcare plans and to tax incomes and expand state medicaid.
I fully expect SCOTUS to throw a bone to voters, and to conservatives in Congress and in Statehouses by striking down the individual mandate BUT THEY WILL UP HOLD THE TAX PROVISIONS AS CONSTITUTIONAL UNDER THE 16TH AMENDMENT.
And with survival of Obamacare and its tax provisions, it will be only a matter of time before they destroy the private healthcare industry leaving nearly everyone to seek care under one of their offered expanded State Medicaid programs.
So forget these amicus busybodies, they are only churning noise in court. It is the 16th Amendment that is the Trojan Horse allowing statism to creep into American society.
16th Amendment is a 1913 class warfare artifact. It’s been a 100 year slow walk to legalizing full blown socialism in the USA.
Is there an alternative that does not require the 16th? Yes.
Polls don’t matter to issues before SCOTUS unless the public is so incensed as to have the justice’s heads on a spike; and the public is not so incensed.
See Post #7 for why Obamacare will survive and why it will ultimately be successful in accomplishing the socialist gameplan.
There is a greater chance of SCOTUS throwing out Obamacare based on contract law than there is of the 16th Amendment being repealed anytime soon. You can talk about the fairtax plan all day long (and I like the fairtax plan), but it is not going anywhere until things drastically start collapsing in this country. Fairtax is not going to be the thing that initiates the real change that is needed, though it or something like it might end up being an end product of that drastic change.
We’re I a Communist...first thing I’d like to see is the death of contract law...to empowering of the individual.
Can’t assume these humanoids think anything at all like the rest of us.
I put the FairTax info out there for people to get educated. I said nothing about its chances but only point it out as an alternative and it has as much chance at passage as a repeal of Obamacare does.
Indeed SCOTUS may very well throw out the individual mandate based on contract law but they will not throw out Obamacare in toto. They can’t, because if they did, then the social security tax would be vulnerable to repeal; Biden said this 2 years ago. So this is not my opinion, this is their stated gameplan but unfortunately conservatives have been diverted to ‘contract’ and commerce clause arguments. Those are red herrings.
Obamacare will survive as a TAX. And as with all taxes, they expand so Obamacare taxes will expand. The expanded taxes will take revenues from private health plans and from incomes and be redistributed to state medicaid programs. I think you can see what will happen.
Dems have become aware they don’t need the individual mandate NOW; they will get it by another means later, through TAXATION.
What is the alternative? There is none short of reading, studying and supporting the link I posted in post #7. No you will not see a repeal, there are not the votes in the Senate and there won’t be after the election. So we will have Obamacare survive; get used to it because it is an undeniable fact. We will have it.
Oh you will be happy to hear SCOTUS strike down the ‘compulsory’ mandate provisions of Obamacare. And like having drunk a little too much at a party you will wake up the next morning with a hangover and realize “Oh Crap, they left the taxes in”. And then you will hear the Sunday Morning pundits discuss how those taxes are going to slowly over time take down private health plans; and so it begins.
And realize all this socialism was not Obama’s vision. He is just the vehicle they used to push it through. No, this social health insurance movement was present in the original social security movement of the 1930s but the leaders of that movement decided to remove the social health provisions and bring them ‘later’. Well, ‘later’ is now.
i haven’t read the “Brief” yet, but under contract law you must “Knowingly and Willingly” enter into said contract.
You can NOT be “Coerced or Deceived” into a contract.
As for Social Security, if you dig a little deeper you will find that you are NOT mandated into it, see the small town in Texas who has opted all of it’s Municipal Employee’s out of it.
The only people the Government can dictate any law to are “14th Amendment” Federal U.S. citizens of the USofA Inc.
A Contract of Adhesion...only by the authority to whom you would run to seek redress.
I did not say anything that runs counter to what you posted. So you missed the point which is another point, that people are missing the point.
Try rereading Posts #7 and #13 and you will see I agree with you but try to make you aware of the bigger picture,
The dems have the bigger picture; most conservatives do not have it because we get bogged down on smaller skirmishes and ultimately have out *sses handed to us by an attack from the rear. So please read #7 and #13 carefully.
Freep’d at 1228ET, listening to the PowerBlock on SpikeTV
Should the Supreme Court declare the Obama health care law unconstitutional?
Yes - 35%
No - 65%
Total Votes: 9,100
This drives a steak rigth int the heart of it.You can not be forced against your will to sign a contract.
This drives a steak right into the heart of it.You can not be forced against your will to sign a contract.
I agree with your observation, but I would point out that the oral arguments are not intended to duplicate the work already done by those filing briefs before the Court.
The Justices have months to review the briefs, including responses to the intitial briefs and the various amici briefs (from "friends" of the Court). If I were a Justice I would be uninterested in hearing the briefs simply read out during oral arguments.
I would be interested in being able to ask a few very pointed questions which address a weakness or strength of an argument that wasn't adequately addressed in the briefs or to introduce a point-of-view not covered.
I hope you are correct.
LOL, and if it does turn out to be a steak instead of a stake, I hope it's just the bone from a T-Bone!
I didn’t miss the point, I actually agree with your point...
I am pushing for people to educate themselves on this subject and they may be surprised as to what our Skrool system has suspiciously forgotten to educate us about.
However, Social Security is a “Benefit” and not mandated...
By excepting said “Benefit” you have entered into a “Contract” with USA incorporated and “Volunteered” into becoming a “14th amendment citizen” and you are now bound by it’s terms which DOES include all Statuatory Laws!!!
And you don't get fined, if you don't put into it ...
The augment that 0-care is just a tax like SS, was rejected by some of the liberal lower court decisions that still upheld 0-care under the commerce clause. The 0-care mandate penalizes those that refuse to buy insurance with a fine, a penalty. The courts have made a clear distinction between a penalty and a tax. Forcing people to enter into private contacts, and calling that a tax, exceeds even an ardent Leftist’s capacity for pretzel logic.
If I were a legal expert called to provide testimony for any legal hearing on the basic premise of this article, my testimony would be:
“Your Honor. No, duh!”
The augment that 0-care is just a tax like SS, was rejected by some of the liberal lower court decisions that still upheld 0-care under the commerce clause. The 0-care mandate penalizes those that refuse to buy insurance with a fine, a penalty. The courts have made a clear distinction between a penalty and a tax. Forcing people to enter into private contacts, and calling that a tax, exceeds even an ardent Leftists capacity for pretzel logic.
I thought they passed it specifically as NOT a tax because to do that they would have lacked the votes to pass it, so they called it something else?
“However, Social Security is a Benefit and not mandated...”
There are two things in play with what you wrote and this is not just my opinion but historical fact, and what I am going to point out to you is extremely relevant to the Obamacare case because it is what the democrats planned from the outset based on the Social Security constitutional challenge of 1935:
The two things in play are in your terms and my terms:
SCOTUS does not look at these two things as one singular entity.
Now it is true what you said that Social Security is/was a Benefit and not a mandate, and the words of FDR that are part of the historical record shows he knew that he would lose by imposing a ‘benefit’ on the American People. So he switched from a ‘benefit’ argument to a ‘tax’ argument.
So your argument about not being legal to force a ‘benefit’ is fine, pat yourself on the back. But it does not matter that you won that argument because you lose the other argument, the ‘tax’ argument.
Now you are like the football fan whose team is down by a field goal and later you jump and cheer when your team intercepts a pass and runs for a touchdown. But in the final play the other team scores a touchdown and you lose.
They are going to lose on the ‘mandate’ argument and they are going to win on the ‘tax’ argument, and thus the American People lose.
Don’t all the people who will be deciding the case (SCOTUS)have a vested interest in the outcome? Aren’t they all exempt? And don’t one or two have conflicts of interest. My goodness, one even helped write the d##n thing. I’d lilke to see THOSE arguments used.
That’s right. A new tax to fund 0-care would have not passed. During the New Deal, the Marxists also tried to hide the fact that SS was a tax, but the fact is that they did set it up as a tax as is evident by looking at your paycheck. Same thing with Medicare in the 60s. It should also be pointed that because SS is a tax, any promised ‘benefits’ are solely dependent on whatever the government decides it wants to give to the beneficiaries.
Contract? Everyone is talking about contracts. The powers that be will weasel-word their way around that and call whatever they come up with “compulsory.” They don’t need no stinkin’ “contracts.”
(I so hope I’m wrong)
There are several lower court decisions that conflict with each other.
Obamacare has two types of penalties:
1) penalties for not buying health insurance which should be struck down by SCOTUS and
2) penalties for not paying the taxes levied in Sections 9005 and 9015 and these taxes and penalties will not be struck down.
Google the legislation and you will see for yourself.
SCOTUS will uphold the Obamacare taxes because they can’t do anything else. These taxes give government power to tax private health plans and incomes, and these tax revenues can be used to expand state medicaid programs, in other words take money from incomes and private health insurers and give it to government run health programs.
Here are Roosevelt’s words and this is what the democrats are using:
“We put those payroll contributions there so as to give the contributors a legal, moral, and political right to collect their pensions and unemployment benefits. With those taxes in there, no damn politician can ever scrap my social security program.”
Notice carefully in his words how in the first sentence he uses the word ‘contributions’ and in the second sentence uses the word ‘taxes’.
I don’t think it can be made any clearer, the democrats are going to tax us for their universal healthcare plan and the whole issue of contract nullification or commerce clause overreach is not as important to them as getting their taxes to destroy or control the private healthcare system in the United States.
Thanks for clearing that up. Since it technically is not a tax, ie could not have passed as a “tax” I don’t understand how some of the arguments to keep it are based on it being a tax. It seems that those arguments would be thrown out right away. One I heard was that there might be no decision because it would have to wait until someone was actually wronged, that is that nobody has paid the “tax” yet, so the question can’t be brought. It is getting ever more difficult to navigate reality when words mean whatever it is convenient for leftists to say they mean at any given time.