Obamacare Will Be Declared Constitutional

As I am asked to do each year by the Center for Bioethics and Culture, I looked into the future to see what will happen in matters bioethical. This isn’t mystical prophesy. Rather, I look at the facts as I see them now, and project out to where I think they will lead. Thus, my predictions aren’t what I want to happen. They are what I think will happen based on a cold-eyed analysis of the current facts on the ground. Or to put it another way, I channel my inner lawyer.

The biggest issue in bioethics by far this year will be the U.S. Supreme Court’s ruling on the constitutionality of Obamacare. I believe it is patently unconstitutional. But alas, I don’t think the U.S. Supreme Court will so rule. From “See it Now 2012:”

This is the most important issue facing bioethics for 2012, so without turning this essay into a law review article, please let me explain my reasoning. The ACA legally requires all Americans to have health insurance or pay a penalty fine (a tax, according to the administration), known for purposes of discussion as the “individual mandate.” The argument over the individual mandate essentially boils down to apples versus oranges, law versus policy.

• Those who think the mandate is unconstitutional argue 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.


• Stripped of its legal mumbo jumbo, defenders of Obamacare argue that the mandate is necessary policy, because without the mandate people will wait until they are sick before buying insurance, which would collapse the system financially.


• In my view, both assertions are correct.

Whether a law is good or bad policy should be irrelevant to its constitutionality.  Should be, but I predict, won’t be.  Why?  Because we don’t live in such a pristine world:

The Supreme Court has vastly 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 fashioned legal justifications to back up their decisions (which, in turn, become springboards for further federal expansion). Some call this phenomenon “judicial legislation,” but we won’t get into that here. Moreover, the justices generally come from what is sometimes called the “ruling class,”—people who graduated Yale, Harvard, Princeton, etc.—people who have faith in “experts” and technocratic solutions to societal problems. The rulings of the Court on controversial social and political issues often reflect the views of this subset of Americans more than those of the general population (not that the opinions of either should be relevant). While polls generally show a majority of Americans opposing Obamacare, the ruling class tends to support it

I once thought it would be declared unconstitutional, and believe I so said here.  But proving that new facts can change my opinions, something happened:

My big clue was a November 2011 decision validating the individual mandate written by conservative Reagan-appointed Appeals Court Judge Lawrence Silverman. 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. With the coming decision, a new era will have fully dawned for the United States of America—even if Obamacare is later legislatively repealed.

And that’s the way it will be. And remember, if facts change, my opinion changes with it:

But be of good cheer. In answer to Scrooge’s memorable question from A Christmas Carol, these are not the things that must be, but what might be. Facts change and the future remains fluid until it happens. If you don’t like the picture I have painted, work to prove me wrong. Please.

If you want to see my other predictions, both regarding Obamacare and issues like assisted suicide, hit the link.  Me? I’m going to go suck my thumb, hold my Linus blanket for an hour, and hope I got it wrong.  Then back to work. Onward.