Whether or in what form the Patient Protection and Affordable Care Act survives, it is pretty clear that it is a very unusual piece of legislation. Two years into it, it remains about as popular as Newt Gingrich. From a New York Times/CBS poll:
The new poll, conducted last Wednesday through Sunday, finds that 36 percent of Americans approve of the health care law, while 47 percent are opposed. By nearly 2 to 1, those who say they strongly disapprove of the law outnumber those who strongly approve of the legislation. Sixteen percent have no opinion.
I admit that Obama does about 3 points better against Newt, though that 2 to 1 strongly disapprove to strongly approve number does look like Rasmussen's polling on Obama.
It is also clear that not only does no one know yet what is in it, but no one knows yet what it is. Are the penalties attached to the mandate (and upon which the finances depend) a tax or not? The answer is yes, according to the Administration. Again from the Times:
In defending the law, the Justice Department has taken a legal position — that the health care act constitutes a tax — that contradicts the political stance taken by President Obama. To do that, it has relied on legal semantics to argue that the insurance mandate will be enforced through the tax code even though Congress took pains to label it a penalty and not a tax.
After losing that argument in a lower court, the government's lawyers switched positions to agree with the plaintiffs that the litigation was not blocked by the Anti-Injunction Act. But in its brief to the Supreme Court, the administration argued that while the penalty was not a tax that would fall under the Anti-Injunction Act, it should be viewed as a tax when the court considers on Tuesday whether the mandate is permitted under Congress's broad authority to levy taxes.
So…it's not a tax when legally convenient and it should be viewed as a tax when legally convenient. Glad we cleared that up.
This confusion about the legal nature of the PPACA's penalties reinforces the claim that this thing is an altogether new animal in our political zoology. The question the Court hears tomorrow may turn on turn questions. First, can the act's proponents show that allowing the mandate would not transform the commerce clause into an unlimited grant of power? So far I have heard no good arguments that it does not. Second, can the Court strike down the mandate without making any kind of dent in Congress's existing commerce power. I have heard a lot of good arguments to that effect.
The individual mandate requires individuals to enter into contracts of insurance that would never be enforceable at common law because they would violate an essential element of all enforceable contracts – mutuality of assent. This principle is now and has always been a basic presupposition of all legally binding contracts. The Founding generation recognized this principle, and so has this Court."
Mutuality of assent is a basic principle of law because it is a basic principle of natural moral reason. Suppose I enter into a contract with Professor Schaff. He agrees to mow my lawn while I am on vacation. I agree to mow his lawn later, while he is on vacation. While he is packing for a grand trip to Sturgis, why am I obligated to fulfill my end of the bargain? Because he fulfilled his? Not exactly. I am obligated to keep my end of the deal because I freely agreed to do so. By contrast, if someone puts a gun to my head and a pen in my hand, nothing I sign creates any moral obligation on my part.
Genuine consent is a fundamental feature of contracts.
The centrality of mutual assent is reinforced by various ancient doctrines that vitiate a contract's enforceability. For example, contracts can be avoided due to fraud, mistake, duress, and incapacity – all of which are grounded in a lack of meaningful consent by one of the parties. In the instance of incapacity – such as mental disability or minority – the individual's inherent inability to give meaningful consent renders his contracts invalid.
We rely on many such doctrines as mutual assent for our basic liberties while frequently forgetting altogether what they are and how they work. President Obama and his party in Congress may have done us all a big favor by reminding us so something we dearly treasure but haven't had to fight for for a long time. The PPACA is an offense against liberty. We live in interesting times.