Indentured servitude and a power akin to undue influence – contract reasoning in Pringle (ESM) and Sebelius (Obamacare)
Occasionally, Contract Law principles infiltrate into constitutional discourse. Two recent Supreme Court decisions illustrate the point, one from Ireland, the other from the US. Each relates to an issue of major political controversy and constitutional contention; and, in each, contractual reasoning is at the heart of a significant aspect of the judgments.
In the Irish case of Pringle v Government of Ireland [2012] IESC 47 (19 October 2012) (noted here), the Supreme Court upheld the High Court’s decision to refer to the Court of Justice of the European Union various questions of EU law relating to the Treaty establishing the European Stability Mechanism (the ESM Treaty). In considering whether the ESM Treaty abrogated Irish sovereignty (in Articles 5, 6 and 28 of the Constitution) sufficiently to require an amendment to Article 29 of the Constitution to permit its ratification, Clarke J picked up on Hederman J’s dictum in Crotty v An Taoiseach [1987] IR 713, [1987] IESC 4 (9 April 1987):
The State’s organs cannot contract to exercise in a particular procedure their policy-making roles or in any way to fetter powers bestowed unfettered by the Constitution.
As a consequence, he analysed the sovereignty issue in contractual language:
…8.3 … in international relations, as in very many other areas of public and private life, freedom to act will often, as a matter of practicality, involve freedom to make commitments which will, to a greater or lesser extent, limit ones freedom of action in the future.
