…A contract entered into under duress, such as threat of sanctions, retaliation or punishment, on the other hand, is unenforceable, and may be set aside in court. That is because to make a valid contract, the law requires a “meeting of the minds” — two individuals must come freely together, and freely decide and agree on the same terms for their contract. If one of those minds is under duress, it cannot meet the other in the free and voluntary sense which the law requires to make a contract.
The so-called “individual mandate” in Obamacare requires that everyone purchase a healthcare insurance policy, under threat of fines and, eventually, imprisonment for refusal to pay the fine. A more classic case of forcing people into a contract under duress could scarcely be imagined….
What I find most interesting is that I have been following a number of legal blogs which carry arguments pro and con regarding the healthcare mandate (especially The Volokh Conspiracy), but to date I have never seen any other law professor raise this fundamental argument. That they have not done so, and that many of them can entertain even the notion that the mandate is constitutional, speaks volumes about the institutional mentality that has crept over our law schools….
Read it all. Of course, the Obama Administration didn’t much care when they negated contract law for the bondholders of General Motors and Chrysler, so I don’t know if they’ll really care about this. I hope this time the judiciary doesn’t cave so easily to browbeating by the executive.