The Closing of the Presidential Mind – Part 3: Unveiled Ignorance – ObamaCare and its Roots

How did Obama end up in this morass? Health-care reform long has been a central focus of modern American liberalism. The high priest of American socialism who offered the substance for these policies was John Rawls, an American political philosopher. Obama absorbed his views at Harvard Law School (HLS).


By Andrew Thomas l June 4, 2014


HealthCare.gov, the notorious ObamaCare signup web siteHHS Secretary Kathleen Sebelius with President Obama
President Barack Obama’s most famous policy initiative has proved to be, arguably, his most divisive and politically damaging. ObamaCare has become at once his calling card for a high rating from liberal historians and a political albatross. As the impracticality of the system has met with the reality of consumers’ everyday needs, the administration has been forced to change the rules governing the nation’s health-care system seemingly every day. The legality of these edicts has been questionable at best; they ensure that the health-care sector, one-sixth of the nation’s economy, is governed by the daily caprice of the nation’s chief executive.

Yet, ObamaCare is also perhaps the most intellectually revealing of the namesake president’s programs. Obama admitted early in his administration, in an interview with “60 Minutes,” he saw the risks of pushing the legislation, but went ahead anyhow. “I made the decision to go ahead and do it, and it proved as costly politically as we expected, probably actually a little more costly than we expected politically,” he acknowledged. Indeed, so intent was he to push ObamaCare that he was willing to brazenly promise the public, not once but twice, in a 2009 speech to Congress that his plan would not affect Americans’ health-care options—a promise now infamously broken.

How did Obama end up in this morass? Health-care reform long has been a central focus of modern American liberalism. The high priest of American socialism who offered the substance for these policies was John Rawls, an American political philosopher. Obama absorbed his views at Harvard Law School (HLS).

In a book that came out while Obama was a second-year student at HLS, The Tempting of America: The Political Seduction of the Law, the late Judge Robert Bork noted the broad influence Rawls enjoyed in the American legal academy. Indeed, Obama learned Rawls’ theories directly in class. I know because I was a student in that class, a seminar on political theory taught by Professor Michael Sandel, himself an accomplished liberal political theorist.

In A Theory of Justice, Rawls put forth a view of social justice rooted in what he called “fairness.” He sought to build on the social-compact theory of rights used by political philosophers who influenced the Founders of the American Republic, particularly Thomas Hobbes and John Locke. They and other, later philosophers, including Jean-Jacques Rousseau and Immanuel Kant, used a mythical “State of Nature” to analyze the fairest political arrangements. They asked what political system people would choose if they were emerging from a “State of Nature,” or a hypothetical, pre-government wilderness. Presumably, they concluded, people would found a government that guaranteed the basic rights of all. The Declaration of Independence and U.S. Constitution show an explicit debt to Lockean principles.

Rawls diverges from this understanding. “My aim is to present a conception of justice which generalizes and carries to a higher level of abstraction the familiar theory of the social contract as found, say, in Locke, Rousseau, and Kant,” Rawls notes. Instead of viewing the “original contract” as one “to enter a particular society or to set up a particular form of government,” the focus would be to establish “principles of justice for the basic structure of society.” He called this “justice as fairness.”

What principles of government would a free and rational people choose in such a hypothetical situation of perfect equality? We determine this, Rawls says, by placing people behind a “veil of ignorance.” People entering the social contract should not know the social or economic circumstances from which they are drawn. “Among the essential features of this situation is that no one knows his place in society, his class position or social status, nor does anyone know his fortune in the distribution of natural assets and abilities, his intelligence, strength, and the like.”

As a result, the least advantaged in society are to be taken care of, to a large extent, by the more advantaged members of society. Rawls rejects the notion that people should be rewarded in proportion to their work and productivity. He notes the “tendency . . . to suppose that income and wealth, and the good things in life generally, should be distributed according to moral desert. Justice is happiness according to virtue.” However, “justice as fairness rejects this conception.” This is because “what [people] are entitled to is not proportional to nor dependent upon their intrinsic worth. The principles of justice that regulate the basic structure and specify the duties and obligations of individuals do not mention moral desert, and there is no tendency for distribute shares to correspond to it.”

Rawls explicitly eschews the principle of distribution of wealth “according to effort, or perhaps better, conscientious effort.” He explains, “The better endowed are more likely, other things equal, to strive conscientiously, and there seems to be no other way to discount for their greater good fortune. The idea of rewarding desert is impracticable.”

The bottom line: Because everyone must be allowed to compete equally, society must ensure all individuals have a fair start in life. This means equalized education and health care.

Just as Rawls’ work was the philosophical bedrock for modern liberalism, the legal bedrock came from a U.S. Supreme Court case decided a year before Rawls’ book was published: Goldberg v. Kelley (1970). The high court considered whether welfare recipients have a right to due process before the government can terminate their benefits. By the time Obama became a student at Harvard two decades later, one HLS faculty member, Frank Michelman, argued, with much support in the HLS community, that welfare payments are a constitutional right.

In Goldberg, New York City residents enrolled in the Aid to Families with Dependent Children program sued to block their removal from the welfare rolls. They claimed they had a right to a mini-trial before their welfare benefits could be ended. The district court agreed, holding that “only a pre-termination evidentiary hearing would satisfy the constitutional command, and rejected the argument” that a post-termination hearing was adequate.

Writing for the majority was Justice William Brennan, widely remembered today as the liberal hero of the Warren Court and the prime mover behind its major activist decisions. Brennan’s majority held that the Due Process Clause of the Fourteenth Amendment required the government to put on a pre-termination evidentiary hearing before ceasing welfare payments. For law students of a later generation, the reasoning was as important as the results.

Brennan insisted that the key issue was not “that public assistance benefits are “a ‘privilege’ and not a ‘right.’” Indeed, Brennan went so far as to assert welfare recipients have the same right to due process, including a mini-trial, as do taxpayers denied a tax exemption.

He was not the last liberal to misquote the Preamble to the Constitution in extolling the welfare state. “From its founding the Nation’s basic commitment has been to foster the dignity and well-being of all persons within its borders,” Brennan wrote. “We have come to recognize that forces not within the control of the poor contribute to their poverty:

Welfare, by meeting the basic demands of subsistence, can help bring within the reach of the poor the same opportunities that are available to others to participate meaningfully in the life of the community. At the same time, welfare guards against the societal malaise that may flow from a widespread sense of unjustified frustration and insecurity. Public assistance, then, is not mere charity, but a means to ‘promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.’

Justice Hugo Black, appointed to the high court by President Franklin Roosevelt, was among the justices dissenting. “In the last half century the United States . . . has moved far toward becoming a welfare state,” he observed. Yet, “the list of recipients is not static, and some people go off the lists and others are added from time to time.”

The court’s majority “in effect says that failure of the government to pay a promised charitable installment to an individual deprives that individual of his own property, in violation of the Due Process Clause of the Fourteenth Amendment,” Black added. “It somewhat strains credulity to say that the government’s promise of charity to an individual is property belonging to that individual when the government denies that the individual is honestly entitled to receive such a payment.”

Obama was handed, in Rawls and Goldberg, the essential theory and practice of the modern liberal welfare state. The two sources clearly influenced his most momentous policy decision, ObamaCare. They provide, likewise, the latest example of the truism that ideas have consequences.

[Part of a continuing series, The Closing of the Presidential Mind, Part 1: The Making of Barack Obama; and, Part 2: Growing Government.]


Andrew Thomas is a graduate of the University of Missouri and Harvard Law School. Twice elected as Maricopa County Attorney, the district attorney for greater Phoenix, Arizona, Thomas served a county of four million residents and ran one of the largest prosecutor’s offices in the nation. He established a national reputation for fighting violent crime, identity theft, drug abuse and illegal immigration. He is author of four books, including Clarence Thomas: A Biography and The People v. Harvard Law: How America’s Oldest Law School Turned Its Back on Free Speech. Mr. Thomas is also a contributor to SFPPR News & Analysis.