Nine Tenths of the Law

At the moment, in the other room, the final college football game of the year is murmuring away on the television. Actually it’s being played ten or so miles east, at the Rose Bowl over in Pasadena – the faint glow of the lights far in the distance is kind of mysterious. But it’s not that interesting. The teams are from Florida and Alabama, so no one out here really cares who wins, and this is college football – the kids. Professional football is the real thing for sports fans. These are the farm teams. Still this is the game for the national championship – the two best teams left standing, according to the computer rankings, a system which will be abandoned now, because for the last decade or more no one really knew who actually should meet to settle matters. That means that this game is only mildly fascinating, if that – except for the few who follow such things. Others approach such games in a kind of dry technical way, looking at the stats that show what’s really going on – third-down conversions, passing efficiency, and of course what such folks know is the one statistic that says it all – time of possession. Keep control of the ball long enough and you’ll win. Don’t let the other team have much time at all on offense. It works all the time, unless the other teams gets lucky, like one of these teams, Auburn, has done twice this year, pulling off wins in the final seconds with astoundingly improbable plays. They call it “destiny” – but it’s just chance. It’s foolish to rely on the improbable, simply because it is improbable. Grind it out. Hang onto the damned ball for as long as you can.

That’s a general rule in life too. Possession is nine-tenths of the law as they say – “In a property dispute (whether real or personal), in the absence of clear and compelling testimony or documentation to the contrary, the person in actual possession of the property is presumed to be the rightful owner. The rightful owner shall have their possession returned to them; if taken or used.”

Fine – if it seems to be yours, whatever it is, the burden of proof that it’s not yours falls on the other party, and since you have it, how are they going to prove that? In the Hatfield–McCoy feud this meant that Floyd Hatfield retained possession of the pig that the McCoy folks had claimed was their property – and there was no end of trouble, and many died. But when you have the pig, you have the pig. It’s yours. The other party will just have to get over it. The McCoy folks didn’t.

Between that last short paragraph and this one, Auburn lost the game, as every sports-analyst had said they would. They ran out of the improbable. Florida State had pretty much the best offense and best defense in the nation this year. Possession is nine-tenths of the law. Deal with it.

It’s the same in politics, and now the issue is Utah:

In a move that cast doubt over the marriages of roughly 1,000 same-sex couples in Utah, the United States Supreme Court on Monday blocked further same-sex marriages there while state officials appeal a decision allowing such unions.

The development created what Utah’s attorney general has called “legal limbo” for the same-sex couples who had wed in the state in recent weeks. With the state’s ban on such unions reinstated for now, many wondered whether their window to marry in Utah had closed forever.

“As remarkable and miraculous as it was, we’re still cognizant of the fact that this still is one of the most conservative states in the union,” said Michael Ferguson, half of the first gay couple to receive a marriage license in the state. “I don’t feel a sense of despair or hopelessness or anything remotely close to that. This is part of living in a civil society where we have the rule of law.”

Are these same-sex couples married or are they not? They have the paperwork. Does the state really want to dissolve what were, at the time, one thousand perfectly legal marriages? The couples are “in possession” of their marriages, so this is tricky. By the time this reaches the Supreme Court, as it will, these folks will have been “in possession” of their marriages for more than a year. Arguing that their marriages should be dissolved will be difficult, and if the Supreme Court decides to let these one thousand marriages slide, then it will be hard to argue that no one else should ever be in possession of what they possess. Laws should apply to everyone or to no one at all. Fair is fair, and things have already gone too far:

Although Utah had warned gay couples that their marriages could be dissolved if it succeeded in its legal appeals, the state had also begun granting benefits to newlyweds. Some state employees have already applied for health insurance for their same-sex spouses. Many of the couples are planning to file joint tax returns. And parents are planning to add their new spouses as legal parents through adoption.

This is a mess, because of Judge Robert J. Shelby’s unusual decision in late December:

Precedents from California point both ways on the question of what is to be done when later developments cast a shadow on same-sex marriages. In 2004, the California Supreme Court declared void thousands of licenses for same-sex marriages issued in San Francisco. In 2009, that same court upheld Proposition 8, the state’s ban on same-sex marriage, but affirmed the validity of 18,000 same-sex marriages entered into in previous months.

Federal courts in California later struck down Proposition 8, and the Supreme Court in June effectively sustained the trial court’s ruling in the case on technical grounds, without offering a view about whether there was a constitutional right to same-sex marriage.

In the Proposition 8 case, the federal appeals court had stayed decisions in the case while they were appealed. In Utah, by contrast, Judge Shelby refused to stay his decision, as did the appeals court in Denver.

Judge Shelby granted them possession, so to speak, and possession is nine-tenths of the law. The whole issue may be over, although America will continue its Hatfield-McCoy feud over the matter, even if the pig in this matter was long ago turned into tasty bacon and sausage and pork chops. Public opinion on same-sex marriage shifted a year or more ago – a majority of Americans have no problem with gay marriage now at all, or don’t care about the matter much at all, as it’s not that big a deal in the grand scheme of things. They should live and be happy. Now, in more and more states it’s also quite legal, so same-sex couples are “in possession” of such marriages everywhere, and now a thousand of such couples are in Utah too. In football terms, one side here won by time-of-possession. Don’t expect the astoundingly improbable to reverse any of this. It’s foolish to rely on the improbable. Ask the guys from Auburn.

It’s the same with the Affordable Care Act. Obamacare is here. Millions who couldn’t buy insurance are now in possession of insurance. Obama wins by time of possession, as Jonathan Chait argues, suggesting that Republicans won’t give up on fighting Obamacare, they’ll just shift tactics and focus on the administration’s problems in makng the law work:

If and when the law melds into the national fabric, the proximate Republican response will not be to adapt their policy ideas to it, but to denounce it as a kind of stolen law… Eleven Republican attorneys general have denounced Obama’s various administrative maneuvers, to make the law functional, as illegal. “It was powerful corporate America, with its influential lobbyists, that got an additional year to meet the insurance mandate – when individuals did not,” complains The Wall Street Journal columnist Kimberly Strassel, “It was the unions that got a reprieve from a health-insurance tax – when individuals and small businesses were left to pick up the tab.” The hapless Obamacare is slowly giving way to the devious Obamacare.

In the very long run, Obamacare may become a thing like Social Security and Medicare that Republicans initially predict will destroy the fabric of capitalism but eventually accept and then finally swear up and down they will not harm. In the shorter term, it will remain a bloody shirt. Obamacare will be Benghazi or the IRS scandal writ large.

The Washington Monthly’s Ed Kilgore goes further:

The “bloody shirt” analogy (an allusion to the post-Civil War Republican strategy of reminding northerners to “vote as you shot” against a southern-dominated Democratic Party) is apt in that it is based on Republicans treating Obamacare as a self-evident act of infamy that is spawning others (i.e., all the “corrupt” and “imperial” actions being deployed to fix the law’s problems in the absence of Republican cooperation in Congress). But it is worth remembering that the conservative movement’s goals in health care policy go beyond repealing Obamacare and extend to major “reforms” of the two big health care entitlements. Voucherizing Medicare and block-granting Medicaid remain central and almost universally supported pillars of the GOP’s agenda. At least some Republicans are sure to keep their eyes on that bigger prize instead of making Obamacare their sole boogeyman.

Yes, but even there, the Washington Post’s Ezra Klein suggests they might be in trouble:

So far, Obamacare’s biggest success is the one that neither Democrats nor Republicans seem to want to talk about.

As of Jan. 1, more than 2 million people had signed up for insurance through the Affordable Care Act’s insurance marketplaces – the vast majority of them in December. That’s less than the 3.3 million the administration had projected would sign up by the New Year. But those projections didn’t foresee that HealthCare.gov would be an abject disaster in its first two months of life. The surge in December enrollments doesn’t make up for Obamacare’s catastrophic launch. But it shows HealthCare.gov is, at this point, working.

That’s an improvement, not a success.

Meanwhile, in October and November alone, more than 4 million people signed up for Medicaid coverage. This number may be millions higher when December’s totals are released.

It seems that Medicaid enrolled twice as many people as signed up for private insurance through the exchanges:

It’s “the biggest ACA success story that has not yet been told,” says Ron Pollack, head of Families USA, a nonpartisan health-care advocacy group.

And it could have been an even bigger success. Although the federal government foots 100 percent of the costs for the first three years, and 90 percent of the costs thereafter, about half the states have refused to expand Medicaid. If all states participated, more than 5 million more low-income people would be eligible.

If the point of health-care reform is covering people who need health insurance, the expansion in Medicaid coverage should be a huge win. The people qualifying for Medicaid are, on average, poorer, sicker and more desperate than the people signing up for private insurance.

No one’s talking about it, and Klein thinks he knows why:

One reason for this is that the Medicaid expansion has little to do with the Obama administration’s own definition of success. It largely took the Medicaid expansion for granted. It portrayed the exchanges as Obamacare’s real contribution to the American health-care system. When journalists asked administration officials to judge Obamacare’s progress, they said to look at the number of young people signing up for Obamacare’s private insurance options.

But that raises as many questions as it answers: If expanding Medicaid is so much easier, why was the administration so intent on focusing on the exchanges – and, for that matter, why were exchanges needed in the first place?

That’s a good question, so Klein adds this:

To Drew Altman, president of the Kaiser Family Foundation, this exposes a core reality of U.S. health-care politics. “Republicans don’t like entitlement programs, and Democrats want to portray the ACA as mostly a marketplace solution based on private insurance and not another expansion of a government program,” he says, “so neither side wants to emphasize the ACA’s success enrolling people in Medicaid even though it may be the law’s biggest achievement so far in terms of expanding coverage.”

This has left both the Obama administration and Republicans in a tight spot. The White House can’t really tout the Medicaid expansion because it’ll revive fears on the right that Obamacare is really a stealthy effort to create a single-payer health-care system, and it’ll arouse criticism on the left that the administration should have expanded Medicaid to all.

As for Republicans, they can’t admit the Medicaid expansion is going well because doing so is dangerously close to advocating a single-payer health-care system. The exchanges, marred by their troubled introduction, are also a problem as they are a Republican idea, enshrined in Representative Paul Ryan’s health-care bill.

That’s odd. Something is working well here, and no one dares talk about it, because it might lead to a somehow awful single-payer system, but Noam Scheiber in the New Republic does think that Obamacare actually paves the way toward single-payer:

For-profit health insurance is on some level morally offensive – at least when it’s practiced the way we Americans practice capitalism. With a few tantalizing but mostly unrepresentative exceptions, the longstanding aim of health insurers has been to weed out sick people, and to weasel out of paying for treatment if they somehow get insurance, so that the companies could boost their share price, lavish income on their executives, and plow money into annoyingly saccharine TV ads. To its everlasting credit, Obamacare genuinely tries to whip the insurers into shape – making it illegal to deny coverage to sick people, or to withdraw coverage when healthy people get sick, among other much-needed reforms. But you still have to be skeptical of middlemen who historically spent a mere sixty cents of every dollar individual policy-holders sent them on, you know, healthcare.

Scheiber sees Obamacare as “a deceptively sneaky way” to arrive at what everyone wants anyway:

In the heat of the political back-and-forth with Republicans bent on the program’s destruction, this whole Obamacare adventure can feel a little hopeless. But when you look at the big picture, the underlying political logic is clearly toward more generous, more comprehensive coverage over time. Once the previously uninsured start getting insurance, the natural upshot of cataloguing the law’s shortcomings isn’t to give them less insurance… it’s to give them more. Republicans are in some sense playing into the trap Obamacare laid for them. And a few of them seem a bit concerned about it.

This really is a time-of-possession thing:

Medicaid expansion is a case in point. Under Obamacare, uninsured people who earn up to 138 percent of the poverty level (just under $16,000 for a single person in 2013), can qualify for Medicaid, at least in states that opt into the law. This has a few key political consequences… First, it transforms the political constituency for the program. Historically, Medicaid has served extremely poor, frequently minority, patients who either don’t vote or support Democrats when they do. That meant the GOP had no hang-ups about squeezing it. But there will likely be millions of white working-class voters on Medicaid in the coming years. (Even in some conservative states, like Arkansas, Kentucky, and West Virginia.) Once that happens, something tells me Republicans will become more charitably-disposed to the program.

Then there’s the likelihood that, one day soon, especially if Medicaid becomes more generous, the working-class person who makes 175% of the poverty level will look at his working-class neighbor making 130% of the poverty level and think, wow, his health insurance seems a lot better than my private Obamacare plan. How long can it be before most people earning 175% or 200% of the poverty level are allowed to buy in, too?

If possession is nine tenths of the law, then we’re heading for a single-payer system (and gay marriage being quite legal and quite ordinary everywhere too) even if Peter Suderman doesn’t think so:

Scheiber’s theory overlooks how tough passage of Obamacare was in the first place – and how much support the administration had to get from health industry stakeholders in order to eke out a legislative victory. Single payer would be even tougher. Moderate Democrats who were nervous about Obamacare the first time around would be even less likely to support single payer, especially given how the law cost Democrats at the voting booth. And there’s no way that doctors, insurers, hospitals, and other major health industry groups would play nice with a single-payer push. Quite the opposite: Even beyond the insurers, much of the industry would see single-payer as a de facto nationalization of the health system, and they would fight the transition with everything they could muster.

Maybe so, but they could lose that fight. Medicare is a single-payer system even the angry old white folks in the Tea Party love. Medicaid, once obtained, is looking damned good to more and more people, as it becomes available to more and more of those people. And in the absence of clear and compelling testimony or documentation to the contrary, the person in actual possession of property is presumed to be the rightful owner of that property. These systems are becoming the people’s property, which explains all those big Tea Party signs that appeared at all the early anti-Obamacare rallies – Keep the Government’s Hands off MY Medicare! The sense of possession was already there. There’s no taking things back now.

At Mother Jones, Kevin Drum dissents from Klein’s view of these matters:

I think Medicaid expansion is great, but unlike a lot of lefties, I also think it’s a dead end. It’s not going to lead to single-payer, and it’s never going to be a template for future healthcare reforms. The marketplaces, despite all their problems, have far more potential to eventually lead to healthcare coverage for all. I think they also have more potential to produce delivery reforms down the road and to rein in cost growth. For that reason, I’m okay with the Medicaid expansion staying under the radar. That’s a fine place for it.

Drum doesn’t explain his improbable faith in the marketplace, the workings of which Noam Scheiber described so vividly, but that may not matter. Possession really is nine tenths of the law, and it’s too late now, or soon will be. The left is winning the time-of-possession battle here, as they are with the gay-marriage thing. That is, after all, how you win the big game, no matter how many absurd last minute miracle-plays you pulled off to get to the big game. Grind it out. Hang onto the damned ball for as long as you can. You win.

About Alan

The editor is a former systems manager for a large California-based HMO, and a former senior systems manager for Northrop, Hughes-Raytheon, Computer Sciences Corporation, Perot Systems and other such organizations. One position was managing the financial and payroll systems for a large hospital chain. And somewhere in there was a two-year stint in Canada running the systems shop at a General Motors locomotive factory - in London, Ontario. That explains Canadian matters scattered through these pages. Otherwise, think large-scale HR, payroll, financial and manufacturing systems. A résumé is available if you wish. The editor has a graduate degree in Eighteenth-Century British Literature from Duke University where he was a National Woodrow Wilson Fellow, and taught English and music in upstate New York in the seventies, and then in the early eighties moved to California and left teaching. The editor currently resides in Hollywood California, a block north of the Sunset Strip.
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One Response to Nine Tenths of the Law

  1. Rick says:

    I would suppose your “time-of-possession” theme also applies to Republican party strategy:

    The more those people can hog all the discussion with (what I heard someone on MSNBC once call) “nontroversies” like Benghazi, the less chance there is for Obama and the Democrats to talk about those things that need to be done, such as paying the unemployed to fix the broken infrastructure in this country.

    Still, it’s hard to wrap one’s brain around the political ramifications of a successful Medicaid expansion — in particular, how it might encourage the coming of single-payer — since it is, after all, just another one of those complicated elements of “health insurance” that makes this whole issue of healthcare incomprehensible to virtually everyone. In fact, if the subject of Universal Healthcare were more comprehensible, we might have done it years ago.

    But I would guess one of the reasons even Democrats want to keep any universal Medicaid model “under the radar” is that it suggests that our country might someday be run as if almost everybody who lives here is living below the poverty line, and having to rely on government assistance, just to get by — but that’s pretty much what Mitt Romney was suggesting with his 47% comment, isn’t it?

    And to a certain extent, with all this inequality we find ourselves sinking into, maybe that’s more and more becoming the truth. Maybe Mitt was on to something after all — but once again, characteristically, without really seeming to realize the wider implications of the problem he was getting at.

    Rick

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