Wesley J. Smith<\/p><\/div>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\u2019t. But that Constitution has been terminally ill for a long time. Now it is dead.<\/p>\n

Why would the Supreme Court\u2019s conservative chief justice rewrite the individual mandate\u2019s penalty to be a tax, when the law\u2019s authors unequivocally stated it was not a revenue generator during the legislative process? Let\u2019s call it the \u201ctechnocratic imperative\u201d \u2014 faith in big government solutions for societal problems \u2014 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 \u201cleft\u201d and liberal judges almost never move \u201cright.\u201d<\/p>\n

The case was always about two contrasting approaches to law and government. Opponents of Obamacare mounted a legal<\/em> challenge to the individual mandate. They argued that the government does not have the constitutional authority to force<\/em> Americans to buy anything, and indeed that such a legal compulsion is unprecedented in American history.<\/p>\n

Proponents responded with a strong policy<\/em> 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 \u2014 even though Chief Justice John Roberts disingenuously claimed that wasn\u2019t his concern \u2014 the majority simply rewrote the law to make it appear to fit established constitutional paradigms.<\/p>\n

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 \u2014 and then, as now, fashioned legal justifications to back up their decisions (which, in turn, become springboards for further federal legislative and regulatory expansion).<\/p>\n

This corruption of constitutionalism has come about, in my opinion, because most federal judges are members of the \u201cruling class\u201d \u2014 people who graduated from Yale, Harvard, Princeton, etc. \u2014 who don\u2019t believe in localism or the power of the individual to solve society\u2019s problems. Rather, the Supreme Court\u2019s ruling reflects a deep faith in the ability of \u201cexperts\u201d \u2014 operating through government bureaucracies \u2014 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\u2019s purposes<\/em> 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<\/em>, constitutional \u2014 even if the law has to be rewritten.<\/p>\n

As I learned in law school, the Constitution is what the Supreme Court says it is. That\u2019s why it\u2019s called judicial legislating.<\/p>\n

My big clue that today would come was a November 2011 decision validating the individual mandate written by one of the federal judiciary\u2019s most conservative members, Reagan-appointed Appeals Court Judge Laurence Silberman. To wit: \u201cThe 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<\/em>.\u201d That\u2019s policy<\/em>, baby! Moreover, it encompasses a philosophy that places technocratic problem-solving above upholding limited government. And that\u2019s the essence of today\u2019s ruling.<\/p>\n