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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.
not as a precondition of exercising a privilege such as driving