[Posted by Karl]

AoSHQ’s Dave In Texas is a bit surprised that the voluminous new healthcare law does not, in fact, define health care:

Wait until the public discovers the government is now literally determining what qualifies as “health care” in America.

That isn’t a typo. ObamaCare mandates that insurers spend a certain percentage of premium dollars on benefits, but Democrats never got around to writing the fine print of what counts as a benefit. So a handful of regulators are now choosing among the tens of thousands of services that doctors, hospitals and insurers offer. Few other government decisions will do more to shape tomorrow’s health market, or what’s left of it.

The WSJ piece just quoted is addressing what will count as medical benefits for insurance “medical loss ratios” under the new law. However, we will see a variation on the same theme when the new Health Choices Czar gets down to the business of deciding minimum levels of benefits for insurance plans to be offered through the government-created Potemkin market known as the Health Exchange.

If Dave — or anyone else — is surprised that the healthcare law does not define what health care gets financed and what does not, it is probably due to thinking that the Congressional intent was to establish healthcare policy. In reality, the Congressional intent was to pass a healthcare law assuming control over the system. One of the keys to passing ObamaCare was to buy off the “stakeholders” (interest groups) who were in a position to lobby and advertise against it — AHIP (Big Insurance), AMA, AHA, etc. Addressing issues like “what is health care” would have increased the odds of these groups fighting with each other and among themselves, contrary to the basic goal of passing a bill into law. Moreover, the flap over the US Preventive Services Task Force’s “guideline” — that women in their 40s should stop routine annual mammograms and older women should cut back to biannual exams — demonstrates why Congress would have no interest in the details of the government-defined insurance plans, where increasing numbers of people will eventually be dumped if the law gets fully implemented. The proles were already upset enough at the ruling class; Congress certainly wanted to avoid offending any constituency or group seeking inclusion of their disease, condition, or treatment in the government benefits package(s).

Indeed, Congress wanted to save those fights for later. Punting any issue likely to cause controversy keeps the Beltway carousel spinning. The interest groups already mentioned, plus those lobbying on everything to breast cancer to AIDS to chiropractic to medical device manufacturers will all be gearing up to lobby the vast new bureaucracies created under Obamacare for favorable consideration of one sort or another. Tossing the law’s hot potatoes to unelected civil servants allows Congresspeople to play the white knights, working the Rube Goldberg-esque machinery on behalf of their constituents and their donors. At the outset, this will be directed to establishing generous minimum benefits. Later, when the spiralling costs of the program produce plans for rationing care, pols will intervene to “save” valuable benefits from the bureaucratic reaper. The pols will also help steer groups to the crucial and costly counsel provided by their former staffers, to be employed at the K Street firm of “Don’t You Know Who I Am?”

In short, this process is how Congress disclaims responsibility for Leviathan it creates, as a way of squeezing money from the public to perpetuate their incumbency and their fiefdoms. It is a process Congress has honed over decades of legislation. But now that they are treading into matters of life and death, perhaps more people will see it for what it is.

–Karl

The Big Media narrative is established. On one side, we have the massive cathedral-like structure of a legal opinion, built upon a firm foundation of precedent and logic, and supported by flying buttresses of unassailable factual findings. On the other side is a pack of howling monkeys, who have no evidence to support their arguments, but who sure do like to jump up and down, howl, and fling poo.

Not quite.

Dan McLaughlin offers a detailed post that demonstrates some glaring logical inconsistencies in Judge Walker’s opinion. It is not an emotional screed, but rather an argument that tackles the opinion on its own terms, and reveals it to be high-flown hackery. I say this as someone who voted against Prop. 8, but who wants to see gay marriage accepted by the populace, not crammed down their throats by their judicial betters.

I hesitate to excerpt because I want you to “read the whole thing,” but I nevertheless will excerpt Dan’s main points to show you the strength of the argument. He makes three basic points.

1. Tradition is important only when Judge Walker says so. Judge Walker simultaneously casts aside as irrelevant the traditional meaning of marriage, when deciding the importance of tradition to the justification for the law. Yet in the next breath, he declares domestic partnerships to be inadequate because of the traditional importance of marriage. As Dan elegantly puts it: “Judge Walker puts the culture on one side of the scale while lifting it off the other, which may be many things but surely is not equal justice under law. It’s this analysis, not the view of the California electorate, that fails the test of basic rationality.”

2. Judge Walker trivializes the state’s interest in couples that can procreate. Dan quotes Judge Walker as burying in his factual findings the observation that “[a]pproximately eighteen percent of same-sex couples in California are raising children.” Dan says: “I’d bet every penny I have that very significantly more than 18% of opposite-sex married couples, even in California, have children.” Dan would win his bet. According to the 2000 census (.pdf), “46 percent of married-couple households had at least one son or daughter living in the household” nationwide. In California, it was 51 percent — almost three times the percentage of same-sex couples with children. One might complain that comparing married opposite-sex households to unmarried same-sex households is comparing apples to oranges, but the same census figures reveal that “[f]our out of ten opposite-sex unmarried-partner households have children present.”

The state has a rational interest in encouraging childbirth, and this provides a rational reason to distinguish between same-sex and opposite-sex couples.

3. Judge Walker’s requirement that laws be justified by evidence is contrary to democracy. Sure, I’d like to haul the people behind ObamaCare into court and force them to offer justifications for their policy decisions that would pass evidentiary muster in a court of law. Give me a fiscally conservative judge and I’ll win that case every time. But that’s not how democracy works. Walker proclaims that the defendants’ reasons were “nothing more than post-hoc justifications” that were not considered by the electorate. Dan replies: “Just imagine the horror – campaigns that oversimplified the issues and relied on pre-existing assumptions and scare tactics! There oughta be a law!” He quotes a passage from the Declaration of Independence regarding truths that are held to be “self-evident” and asks whether such a bald declaration would satisfy Judge Walker, “given that Thomas Jefferson cited no statistics [and] no sociological studies compiled by sympathetic scientists.”

Many laws are overturned for legal reasons, but it is exceedingly rare for laws to be overturned because a single judge has found them to be irrational. The result is even more offensive when the law is passed as a proposition voted on by the people at large, as it pits the views of a single judge against the collective wisdom of the citizenry of an entire state. This is rule by philosopher king, and it is rarely more blatant.

Dan does a much better job of explicating his points than I could ever do. Please read the whole thing.