Why is anyone surprised? Obamacare was never going to be overturned. Not that it is constitutional, as the Constitution was originally conceived. It surely isn’t. But that Constitution has been terminally ill for a long time. Now it is dead.
Why would the Supreme Court’s conservative chief justice rewrite the individual mandate’s penalty to be a tax, when the law’s authors unequivocally stated it was not a revenue generator during the legislative process? Let’s call it the “technocratic imperative” — faith in big government solutions for societal problems — a mindset that generates a far stronger gravitational pull than the standard conservative/liberal paradigm. The technocratic imperative is why, when push comes to shove, conservative judges almost always move “left” and liberal judges almost never move “right.”
The case was always about two contrasting approaches to law and government. Opponents of Obamacare mounted a legal challenge to the individual mandate. They argued that the government does not have the constitutional authority to force Americans to buy anything, and indeed that such a legal compulsion is unprecedented in American history.
Proponents responded with a strong policy defense: They argued that a modern state must have universal health coverage. In a private system, without the mandate, people will wait until they are sick before buying insurance, which would cause a financial collapse. Because the majority of the court favored the policy — even though Chief Justice John Roberts disingenuously claimed that wasn’t his concern — the majority simply rewrote the law to make it appear to fit established constitutional paradigms.
Again, why is anybody surprised? The Supreme Court has steadily expanded the power of the federal government since the 1930s. In so doing, the justices have often based their decisions as much on policy as on law — and then, as now, fashioned legal justifications to back up their decisions (which, in turn, become springboards for further federal legislative and regulatory expansion).
This corruption of constitutionalism has come about, in my opinion, because most federal judges are members of the “ruling class” — people who graduated from Yale, Harvard, Princeton, etc. — who don’t believe in localism or the power of the individual to solve society’s problems. Rather, the Supreme Court’s ruling reflects a deep faith in the ability of “experts” — operating through government bureaucracies — to fashion regulations to make all things right. (Just look at the recent upholding of the vast and increasing powers of the EPA by an appellate court.) Since the ruling class believes that Obamacare’s purposes are laudable, that universal coverage is equitable and that the mandate is a necessary element of making the new law work, it is, ipso facto, constitutional — even if the law has to be rewritten.
As I learned in law school, the Constitution is what the Supreme Court says it is. That’s why it’s called judicial legislating.
My big clue that today would come was a November 2011 decision validating the individual mandate written by one of the federal judiciary’s most conservative members, Reagan-appointed Appeals Court Judge Laurence Silberman. To wit: “The right to be free from federal regulation is not absolute and yields to the imperative that Congress be free to forge national solutions to national problems.” That’s policy, baby! Moreover, it encompasses a philosophy that places technocratic problem-solving above upholding limited government. And that’s the essence of today’s ruling.