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A Constitutionality Argument With Teeth?

Richard Epstein, a far greater legal mind than I, takes a dramatically different approach to the issue of whether the proposed Senate health care reform bill is constitutional.  Rather than focusing on the interstate commerce clause, Congress’ power to tax, and the individual mandate (which I think is a weak argument in light of existing precedent), Epstein looks at the ways in which the bill will affect small-group and individual market insurance companies.  In essence, Epstein argues that the bill will work an unconstitutional taking under the Fifth Amendment on these companies.  It’s an interesting argument that will require awhile for me to evaluate properly, but it’s well worth taking a look at. Via Jonathan Adler at Volokh.

December 21, 2009   6 Comments

The Polian Connection

After a decade of success relying on Peyton Manning, Marvin Harrison, and for awhile Tony Dungy, the Indianapolis Colts are sitting undefeated through 14 games.  Manning is still there, but Dungy and Harrison are not.  With Manning still having several good years left in him, Reggie Wayne and Dallas Clark in the prime of their careers, and high quality young players like Pierre Garcon and Anthony Gonzalez, they look set for years to come as a continuing powerhouse of the AFC. 

Their President of course is Bill Polian, who has held that position since 1998 and as far as I know remains the primary decisionmaker when it comes to the team’s personnel.  Prior to Polian joining the team, the Colts were basically awful.  Since he joined the team, they have made the playoffs every year except for his first.  Yes, obviously Peyton Manning has had quite a bit to do with that, but football is too much of a team sport for one player to be enough to get you to the playoffs year in and year out.  And, of course, Polian drafted Manning when he could have just as easily drafted Ryan Leaf, probably the biggest bust in NFL history. 

This says nothing about Polian’s track record prior to joining the Colts, when he was the General Manager for the then-expansion Carolina Panthers, and made the personnel decisions that allowed them to become the fastest-ever team to reach a Conference championship game.   He left the Panthers after just two seasons when the Colts made him an offer he could not refuse. 

Of course, before Polian was with the Panthers, he was the architect of my Buffalo Bills’ four consecutive conference championships (sadly, the Super Bowl was not held between 1991 and 1994, so no greater success was available to the team than a conference championship).  Polian had taken the helm of the Bills as general manager after the 1985 season, when the Bills had developed a reputation as a truly abysmal franchise.  Which is pretty much what they are now, come to think of it.   By 1988, he was the NFL’s Executive of the Year, an award he would again win four times in the ensuing 10 years. 

At the end of the 1992 season, with the Bills 3/4 of the way through their run of conference championships (thanks to St. Frank Reich’s performance in the Greatest Comeback of All Time), Polian was mysteriously and bizarrely fired by owner Ralph Wilson.  Why?  Because he didn’t get along with the team’s Treasurer.  Yes, the bleeping Treasurer.  Not Marv Levy.  Not His Holiness Jim Kelly or Bruce the Magnificent.  Not even Ralph Wilson himself.  No, the Treasurer.  While I understand that ultimately, pro sports are a for-profit enterprise, the ability of a franchise to turn a profit would seem to hinge far more on its ability to consistently win games by attracting quality personnel at a reasonable price than on anything over which a team’s Treasurer may have control.  I am also quite certain that one can find many adequately competent Treasurers; one cannot, however, find many adequately competent evaluators of talent. 

Not to put too fine a point on it, but since 1988, Bill Polian has been the GM or President of a playoff team in all but five seasons, two of which he was not overseeing a team in the league, and two of which were his first seasons overseeing his respective team’s football operations.   In the overwhelming majority of those seasons, his team also won its division.  Only once since 1988 has a Bill Polian administered team failed to make the playoffs after his first year (2001, when the Colts went 6-10). 

Even more remarkably, he has done this while at the helm of small market franchises.  Despite their small market, the Colts are now in the top half of NFL teams in terms of their value according to Forbes.

Ralph Wilson (for whom I have actually quite a bit of respect) has spent the last several years complaining about how it is impossible to be competitive and to run a profitable franchise in a small market like Buffalo.  Unfortunately, it seems that the single biggest reason the Bills have been uncompetitive and only marginally profitable in the last decade plus has been Wilson’s decision to fire the single greatest personnel man in NFL history over what was apparently little more than a personality conflict with a non-football employee. 

One can only speculate as to what the NFL landscape would look like in 2009 had Wilson not made such a mystifying decision in 1993.  Perhaps Polian would have left for the Panthers in any event, lured by the promise of greater pay and greater control.  Or perhaps he would have remained in Buffalo.   One thing is for certain, though – the Bills’ unbelievably persistent futility over the last decade would not have been nearly as terrible had they had the type of consistent quality in personnel decisionmaking that Polian offered.  What is also certain is that the Colts’ unbelievably persistent success over the last decade would not have been nearly as remarkable had they not had the type of consistent quality in personnel decisionmaking that Polian offers.

December 21, 2009   7 Comments

Matchmaker, Matchmaker…

So, I don’t have the time or the philosophical chops to comment on the (to me, at least) fascinating exchange between William B. (also here) and Jason Kuznicki.  But, I wanted to point our readers to this response to William’s first entry from Lee at A Thinking Reed.  I’d also like to beg Jason for his thoughts on Lee’s response, and particularly Lee’s points about John Stuart Mill.

December 18, 2009   3 Comments

Be True To Your School

I, likewise, would watch this show and buy the book: [Read more →]

December 18, 2009   Comments Off

The State of “Reform”

Monsieur IOZ pretty much sums up the state of health care reform perfectly in his latest.  At what point do advocates of public choice theory get to say “told ya so” about the almost certain quality of this bill (ie, the whole “making things worse” thing)?  Because I’m pretty sure we’ve passed that point.

December 18, 2009   7 Comments

Right-Wing Political Correctness, Ch. 356

Rod Dreher on movement conservatism’s culture problem:

One of the things that first attracted me to conservatism was that back in the 1980s, when I was in college and watching liberals elevate utter mediocrity to sacrosanct status because it was produced or embodied by a member of an approved victim group, it was the conservatives who were advocating for excellence judged by serious, valid criteria, not ethnic, gender or sexual identity — which is their contemporary form of egalitarianism (versus a previous eras, based on class). Now the right has adopted this sort of thing as a lens through which to see and judge the world. Like I said, depressing.

In recent years, it has never ceased to amaze me how much right-wing political correctness and identity politics have come to resemble the very worst aspects of late-80s and early-90s left-wing political correctness, and in particular the way in which it so dramatically views all culture through a political lens.  A true conservative nowadays not only holds particular political views, it seems he must also prefer Kwik-E-Mart to Whole Foods, and 24 to all other TV dramas.  Not only must he hold these preferences, he must also complain vociferously about how his ideology is underrepresented and disrespected on TV, in the media, etc.   How conservatives are portrayed (or not portrayed) in the arts seemingly takes precedence to whether the art is actually good art.  If it portrays conservatives and conservative mentalities positively, it is automatically deemed good art; if it portrays liberals and liberal mentalities positively, it is automatically deemed bad art. 

(Reminder to all reader-bloggers: the surest way to get a link from me is to write about right-wing political correctness).

December 17, 2009   36 Comments

Taxes: Where Political and Constitutional Expediency Collide

I’ve been out of pocket from the political realm for a week and a half, but President Obama’s claim that a health insurance mandate is not a tax strikes me as marginally good politics and absolutely terrible lawyering.  I think Jason Kuznicki (also here) and by extension Will, are absolutely, 100% correct that an individual mandate is necessarily characterized as a tax, and a regressive one at that.  But that’s not the interesting thing to me here. 

Accepting for the moment that it is only debatable – rather than certain - whether an individual mandate is a tax, Obama’s attempts to characterize the mandate as something else are hardly a make-or-break argument for passage of health care reform.  Health care reform is not going to pass or fail to pass because people think the mandate should be characterized as a “tax” or merely as an attempt to get the uninsured to “take responsibility to get health insurance.”  The people affected, whether you characterize it as a tax or as something else, are going to be the same people; the people worried about being affected are going to be the same people; the costs that the mandate will impose on them will be the same.  People for the most part get this.  Sure, it may be mildly politically embarassing for Obama to sign a tax increase on a subset of the American middle class in contradiction of his campaign pledge, but if the resulting bill is as good as Obama wants voters to think, it’s tough to see him paying much of a price at the polls for it. 

But by claiming that the mandate is not a tax, Obama undermines the single strongest argument that the mandate is constitutional.  [Read more →]

December 16, 2009   16 Comments

The Anti-Broder Center

Mark: Something I’ve been noticing lately is that the perjorative “centrist” has been getting applied with increasing regularity to an entirely new group of people by both left and right. Historically, it’s been a term that referred to establishment elites who, while having any number of letters after their name (D, R, Ind.) ultimately have a fairly unified ideology.  I’m thinking here of people like David Broder, Joe Lieberman, Olympia Snowe, and Ben Nelson.  Beyond that, to the extent this group practices journalism, it is most often criticized for instituting a sort of faux-neutrality under the guise of objectivity.  Recently, though, the term has been flying fast and furious at people – often dissident conservatives and libertarians – who have next to nothing in common with this group beyond an equal distaste for the most vocal elements of movement conservatism and movement liberalism.  Indeed, on the political map, this group of so-called “centrists” is almost the polar opposite of the Broderites: where Broderites tend to be in favor of restrictions on any number of social issues (e.g., the War on Drugs, smoking bans, video game ratings, etc.), the other “centrists” are mostly radical libertarians on these issues; where Broderites tend to be hawkish advocates of American exceptionalism, the other “centrists” are largely non-interventionists.  On the welfare state, the Broderites are incrementalists – always willing to support “reforms,” but only as long as the reforms are small and unambitious; by contrast these other “centrists” (at least to the minimal extent you and I are representative) are willing to support reforms, but only if those reforms are significant and structural, while also fiscally responsible. 
 
If the “centrist” perjorative is going to be thrown this way, it seems worth asking whether (and how) this new group of so-called centrists can claim the mantle of “makers of conventional wisdom” from the Broders and Liebermans of the world and eventually create a new conventional wisdom. 
 
Erik:That’s an interesting thought – “a new conventional wisdom.”  I wouldn’t have thought of it that way because that’s often not how a political fight is viewed, but it’s a very good way to frame this issue nonetheless.
I have noticed that more and more positions that are not in line with either the conservative or liberal movement are derided as “centrist.”  But even beyond the movement this can be the case.  You have non-movement conservatives who are very socially conservative who will use that label against more liberal conservatives like myself.  The same thing goes on in the left.

December 4, 2009   23 Comments

Liveblogging the World Cup Draw

So it looks like the US’ recent history of bad fortune in the World Cup draw is going to continue, as they draw England as the seeded team in their group, while hated rival Mexico hits the jackpot by drawing host South Africa’s group.  I spit in Sepp Blatter’s general direction.

UPDATE 1: Jeff Carlisle at ESPN notes that the England game will be the US’ first of the tournament.  Will they be capable of repeating their upset of Portugal in their first game of the 2002 Cup?

UPDATE 2: A good break for both the US and England as the Africa/CONMEBOL pot gives their group Algeria, which is one of the less dangerous teams in that pot.  Perhaps the US and England will each be able to avoid a Group of Death for the first time in awhile.

UPDATE 3: And the last team in the England/US group is Slovenia.  And the US and England hit the equivalent of a runner/runner straight draw, avoiding teams like France, Portugal, Serbia, and Slovakia.  The winner of the US-England match should win the group with ease, and the loser will have an excellent opportunity to rebound for second place.

UPDATE 4: As expected, South Africa will have a difficult time avoiding being the first host country to fail to advance to the second round.  But the group they drew was probably one of the worst they could have, making the task not only difficult, but likely almost impossible, as they draw one of the best teams in the CONCACAF/AFC pot, a tough CONMEBOL team in Uruguay, and probably the most dangerous unseeded team in the tournament in France.

FINAL UPDATE: Those who like to believe in both karma and Western exceptionalism have to be happy with this draw.  England and the US get to play what should be a fun-to-watch game, with both having relatively clear paths to the second round.  North Korea, after taking the extraordinary step of revaluing their currency overnight, wind up in a group with three heavyweights in Brazil, Portugal, and the Ivory Coast; NoKo will be lucky to have a goal differential in the single digits in that group.  On top of that, the games between Brazil, Portugal, and the Ivory Coast should be exceedingly entertaining. 

There seems to be am early consensus emerging that for once there is no clear-cut Group of Death in which all four teams have a strong chance of emerging as the victors.  If I had to make a call, I’d probably go with Group D, Group E, or Group H.  Group D has perennial powerhouse Germany, plus Australia, Serbia, and Ghana, each of which could be dangerous.  Group E may be a bit tougher, with the Netherlands, Denmark, Cameroon, and Japan.   Denmark is coming off a particularly strong qualifying campaign in which they lost only one game, the Dutch are, well, the Dutch, Cameroon has a history of surprising people at the World Cup, and Japan is an emerging regional power.  However, Group H apparently has the best average ranking according to both FIFA’s official rankings and Nate Silver’s rankings for ESPN, with early tournament favorite Spain, well-regarded Chile, solid but unspectacular Switzerland, and fiery Honduras.  Still – none of these are the sort of Groups of Death that we’re used to seeing in the World Cup, and the seeded team in each case should have a clear route to the second round.  The only one that may have even a little difficulty would, I think, be the Netherlands.

I’d say that Italy probably has the easiest path to winning its group of any seeded team, drawing one of the weaker CONMEBOL teams in Paraguay, a team in New Zealand that was only able to qualify due to Australia’s move out of Oceania, and good-but-not-great Slovakia.

December 4, 2009   11 Comments

Drink!

I didn’t have the opportunity to watch the speech tonight, but I have a long history of enjoying drinking games with a politician speech theme (the annual Bush SOTU drinking games I used to play before marriage changed things were particularly fun).  John Cole appears to have had the best drinking game rules for tonight’s speech. Consider this an open thread.

December 1, 2009   Comments Off

Rant of the Day

Ken at Popehat on the War on the War on Christmas.  There are few things more likely to get a link from me than pointing out that the war against political correctness is almost always just a different form of political correctness run amok.

December 1, 2009   2 Comments

More on Hate Crimes Statistics

Jim Burroway at Box Turtle Bulletin has an excellent follow-up to my piece on the ways in which the FBI’s annual hate crimes report is misused.  Check it out here.  Burroway adds quite a bit of detail and some interesting graphs to the analysis.

November 27, 2009   Comments Off