Obamacare Ruling Reflects Technocratic Imperative

Wesley J. Smith

Wesley J. Smith

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.

With the coming of the Obamacare decision, a new era has now fully dawned for the United States of America — even in the unlikely event that Obamacare is legislatively repealed. The beating heart of the Affordable Care Act is technocratic. Within the next few years, unelected and unaccountable bioethical cost/benefit boards of experts will decree from central control what (and perhaps, who) is covered by health insurance, and what (and perhaps, who) are not — just as happens in places like the United Kingdom. The Independent Payment Advisory Board even has power over a presidential veto regarding areas within its jurisdiction.

In this sense, think of Obamacare as our Brussels, the E.U.’s bureaucratic central control center. The cornerstone been laid for the construction of a full-blown bureaucratic state. Limited government is dead. Long live the technocracy!

Wesley J. Smith is a senior fellow at the Discovery Institute’s Center on Human Exceptionalism. He also consults for the Patients Rights Council and the Center for Bioethics and Culture. 


  1. Geo Michalopulos says

    Mr Smith, an excellent analysis. I touched upon some of these on my blog yesterday but you’ve distilled the problem even better than I did. I forget that Conservative judges are as much a part of the Ruling Class as Liberals who’ve done nothing with their lives but suck at the public teat. If anything, it’s a microcosm of what we see in the Orthodox jurisdictions, who seem to view parishes as colonies or franchise outlets. We need more regionalism, more parochialism.

  2. With all due respect, the technocratic revolution is almost a century old – see James Burnham for a trenchant analysis in the Managerial Revolution.

  3. Fr. Johannes Jacobse says

    Wesley, I’ve read your essay numerous times and keep thinking about it. Do you think our culture has fallen over the cliff? More specifically, does the technocratic culture rule the future? My essay points to yes obviously, and reading the responses on Catholic Online, my naysayers provide nothing of substance to show where I am wrong. We are on this course I think even if Obamacare is rescinded which, if I read you correctly, is far from a sure thing even if the Republicans take Congress and the Presidency.

    • Wesley J. Smith says

      Fr. Bless.

      It depends on whether Americans want to be like Europe, it seems to me. The jury is out. But the entrails don’t bode well.

  4. The real death of the Constitution was the abomination known as *Citizens United*, also reaffirmed by the same Court this week. Too bad that Orthodox Christian wirters, apparently in thrall to the political Right, didn’t speak out against that atrocity.

  5. Cynthia Curran says

    Parallel topoi in saint’s lives and histories demonstrate the consolidation of rhetorical strategies and shared ambitions: to portray the adult as divinely inspired from conception.[63] As early as the sixth century, the Byzantines wrote that an individual’s characteristics were developed even before their birth. Sixth-century Sabas was recorded to have been ‘predestined from the womb’, and his contemporary, Nicholas of Sion, was said to be ‘chosen by God, from his Mother’s womb (κοιλίας)’.[64] Ninth-century Tarasios preserved his immutability of mind ‘from the time he was in his mother’s womb and in swaddling clothes.'[65] In the twelfth century, Theodosios Goudeles writes: ‘But He who knows our affairs even before our birth…'[66]This contrasts with Roman and Late Antique sources, wherein we find no mention of foetuses’ characteristics before birth.[67] Looking at the Late Antique Life Course, Alberici points out that Ambrose’s talents were considered to be apparent from birth.[68] In the fourth century, Menander had advised subsequent rhetoricians to make note of miraculous signs after birth.[69] But this precedent seems to have been reinterpreted; in Byzantine hagiographical texts it is common for the writers to record the occurrence of symbolic events after the conception of a predestined pious individual.[70] In the Life of George of Amastris, who lived in the eighth century, it was written: ‘Nor is it fitting to neglect the divine wonders that were worked before the birth of the saint; how he was chosen from above, and how he had his name not from men, nor on account of men, but rather was anointed and dedicated a priest before being born from the womb (πρὶν ἐκ μητρῴων ἐκσπασθῆναι λαγόνων).'[71] In the same vita, the city leaders dreamt that his mother, Megethos, was carrying a ‘holy babe’ in her womb.[72] In the ninth-century vita of Theodora of Thessalonike, it is written:

    And thus the Devil shamelessly lay in wait for upto the time of her death, although she reconciled herself to the from the time she was in her mother’s womb through her monastic office and had directed her entire life in a manner pleasing to God.[73] More proof on the life issue from the Byzantine period.


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