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This Will be the Longest 18 Months Ever

[ 38 ] March 16, 2015 |

When I see that many people are pretending to take a ludicrous-on- -its-face story written by Ed Klein seriously…can we just have the election now please?

Chip Kelly, SuperGenius

[ 62 ] March 15, 2015 |


I can understand why the Eagles gave Chip Kelly control over personnel if it was between that and losing him. And the first major trade he pulled off was good: dumping an extremely expensive running back who was mediocre last year and getting a very good linebacker (albeit one coming off a year lost to injury) is a terrific trade. And as someone who would rather see the Bills win than any other AFC team, it’s awesome to see them once again try to build an offense around a large financial or draft pick investment in the running game, because 1974 is bound to come back anytime now.

The problem is that the rest of Kelly’s moves could come right out of the playbook of any hapless Browns/Bills/Jaguars hack:

In all, Kelly is committing a lot of money to his running backs. Let’s assume that Mathews’s deal eats up about $4 million in cap space this year. Assuming that it has a roster bonus, Murray should come in at about $9 million. The Eagles already have Sproles on their cap at $4.1 million. Even if they cut Chris Polk, that means about $17 million in cap space is committed to running backs.

The only team that even comes close to the Eagles on running back spending would be the Vikings, who have $18 million committed to backs this season, but $15.4 million of that money belongs to Peterson, who is likely to be released or traded. Otherwise, nobody else is spending more than $10.9 million on running backs, which leaves the Eagles as an enormous outlier in terms of how they’re choosing to use their cap space.


Here’s the simplest way I can put this: Pretend, for a moment, that the Raiders or the Jaguars or the Browns made this exact same pair of moves. They would be the laughingstocks of the league, fools making the same stupid mistakes that bad franchises always make. The Eagles understandably aren’t being painted with that brush because Kelly has earned a certain level of credibility as a forward-thinking coach. With the moves Kelly has made this offseason, that credibility is on the line.

Kelly may very well make these signings work, but the Murray deal is a classic example of what bad teams do in free agency. Two years from now, we may very well look back at the past 72 hours in Eagles history as the moment when Kelly sealed his status as the next Bill Belichick. We also may look back at it as the time when Kelly sealed his fate.

This kind of investment in running backs in 2015 is really stupid. It would be bad even if the spending was on backs of proven durability as well as high performance, because the position just isn’t important enough to contemporary NFL offenses. But of course Matthews hasn’t been an elite RB since 2011 and can’t stay on the field, and while Murray is very good (although probably not as good as he looks running behind Dallas’s offensive line), has an extensive injury history and Garrett handled him like Billy Martin handled his starting pitchers in his one healthy year last year. Paying Murray a top-of-the-market contract after a 500-touch season is about as good a gamble as getting in on the subprime mortgage market in 2006.  These are two bad contracts that are much worse in tandem than either one would be individually.  And the contract Kelly offered Frank Gore was no prize either — let’s just say the organization that did land Gore thought that Trent Richardson was worth a 1st round pick.

And that’s just the beginning. As Barnwell says, paying a corner who looks perfectly solid playing across from Richard Sherman in Pete Carroll’s defense as if he’s Darrelle Revis is a bad investment. But at least Maxwell can play. If anything, I think Barnwell is underselling how atrocious the Bradford trade is. There are three rather obvious problems with the deal.

  • Bradford has an onerous contract.
  • Bradford can’t stay on the field.
  • Bradford has been dogshit on those increasingly rare occasions when he does make it onto the field. His career QBR of 40.7 would rank him 26th among NFL QBs last year, behind human replacement level Kyle Orton (42.6) and also behind luminaries such as Ryan Fitzpatrick (55.3) and and Brian Hoyer (43.1).

Now, yes, Bradford does figure to look better going from offenses run by the likes of Brian “talent sees the next generation and flees in terror” Schottenheimer and (Josh McDaniels – Bill Belichick) to an offense run by Kelly. Let’s generously say the difference is worth 20 points of QBR. This would land him…somewhere between Mark Sanchez and Nick Foles under Chip Kelly. The upside of the move, in other words, is that Kelly will get the same performance he was getting from much cheaper players he already had. And, of course, given Bradford’s history it’s likely that the Sanchize will end up taking a healthy share of the snaps this year anyway.  On this trade, perhaps the best analogy isn’t the Bills or Raiders but Tony Reagins. The Rams got rid of one of the worst contracts in the sport and landed a probably better player and a net improvement in draft position out of the deal (and probably would have been even better off taking the 1st rounder Kelly remarkably offered.)

Kelly’s reputation as an offensive supergenius actually does have some merit.  But the fact that he can make the Nick Foleses and even Mark Sanchezes of the world look competent is all the more reason not to massively overpay offensive talent (or “talent” as the case may be.)  It’s hard to imagine Kelly matching the level of success attained by his one-time college rivals Carroll and Harbaugh until he works with someone in charge of personnel who (unlike himself) has some idea what he’s doing.

The Answer Is Always War: The Four Traits of Neoconservatism

[ 179 ] March 14, 2015 |

Wherever there’s a non-ally of the United States not being invaded by the United States, Fred Hiatt is there to find a crackpot to advocate that the problem of non-invasion be solved immediately:

Obama’s stance implies that we have no choice but to accept Iran’s best offer — whatever is, to use Rice’s term, “achievable” — because the alternative is unthinkable.

But should it be? What if force is the only way to block Iran from gaining nuclear weapons? That, in fact, is probably the reality. Ideology is the raison d’etre of Iran’s regime, legitimating its rule and inspiring its leaders and their supporters. In this sense, it is akin to communist, fascist and Nazi regimes that set out to transform the world. Iran aims to carry its Islamic revolution across the Middle East and beyond. A nuclear arsenal, even if it is only brandished, would vastly enhance Iran’s power to achieve that goal.

Such visionary regimes do not trade power for a mess of foreign goods.

Conveniently, the ridiculous-though-not-treasonous letter to Iran from most of the Republican Senate conference has allowed Chait to distill the 4 crucial characteristics of neoconservatism:

  •  “First, of course, is the wild confrontationalism, which in this case was directed not against Iran but against the Obama administration.”
  • “the letter was drafted and signed with maximum haste and a total contempt for planning or serious thought of any kind.
  • “the ploy has failed even by the standards of its own logic.
  • “And, then, finally, there is the stubborn refusal to concede the plan has backfired even in the face of overwhelming evidence.

The mere summary doesn’t do it justice — it’s all worth reading. Muravchik’s letter has already scored highly on points one and two…

…as if often the case, Fallows is excellent.

Today’s Unanswerable Counterfactual

[ 28 ] March 13, 2015 |

Interesting question from IB:

I agree on the general point here, but don’t you think that actions by the Obama and Clinton White Houses would be a central part of any adequate explanation for why we got comprehensive health care reform in 2009-10, but not in 1993-4? Or to put this another way: had Obama not prioritized healthcare reform, the 111th Congress would never have passed comprehensive health care reform. And had Clinton played his hand somewhat differently, the 103rd Congress might have.

A few points:

  • Again, to reject Green Lanternism is not to deny any presidential influence on legislation, with agenda-setting being most important.  Certainly, health care reform could have failed in 2010 — some Democrats, including Obama’s Chief of Staff, were urging him to abandon the ACA, and some are still pushing the line.  Obama playing his hand well and remaining steadfast in the face of political headwinds was one of the many necessary conditions of accomplishing the massively difficult task of comprehensive health care reform, although in most political contexts it would still have been insufficient.  (For that matter, the Civil Rights Act almost certainly would not have passed in 1964 with JFK in the White House, although had the Republicans ran Goldwater in this alternate universe most of the Great Society probably would have eventually happened anyway.)
  • If Obama had played health care reform in 2010 the way Clinton did in 1993, I don’t think anything like the ACA would have passed.  Evidently, Obama had the advantage of hindsight that Clinton didn’t. (I again note the irony that most of the people who insist that Obama totally could have gotten singlepayeroratleastthepublicoption passed believe that Obama should have used the “come up with a bill and ram in right down Congress’s throat” model that was a complete disaster for Clinton.)
  • It’s hard to be sure, given how badly bungled it was by the Clintons, but my guess is that as far as comprehensive health care reform in 1993 they were drawing dead anyway.  On health care, the Republican conference was already where it would be on pretty much everything in 2009; he was not getting more than token Republican support.  The Democratic caucus was both smaller and more conservative in 1993 than it was in 2009.   The Finance Committee Chair was Daniel Patrick Moynihan, who was both hostile to health care reform and a consummate preening asshole – a man, in other words, who could make you appreciate Max Baucus.  Clinton didn’t deal with him well but I doubt it mattered in the end.  We’ll never know for sure, but I think the legislative context wasn’t favorable enough even had Clinton used better tactics. 


That Word “Intelligible,” I Do Not Think…

[ 48 ] March 13, 2015 |


“Don’t worry — if this falls through I have a compelling theory that all federal social welfare programs are unconstitutional under the emoluments clause.”

You may remember Richard Epstein from such arguments as “the takings clause makes the vast majority of the U.S. Code unconstitutional because as originally understood it enacted bad 20th century public choice theory.” It’s highly appropriate that he has gotten in on the ACA Troofer racket. He takes the now-dominant approach of a “¯\_(ツ)_/¯” midpoint between the “card says Moops!” and “the Moops invaded Spain” theories, with a bonus appearance from the most important figure in 21st Century American politics:

There is no similar difficulty with the ACA. The government may protest that its subsidies are only available through the state exchanges, but the result is not unintelligible. Indeed the provision makes perfectly good sense if the plan, as often stated by MIT economist Jonathan Gruber, was intended to give states a strong incentive to sign up with the program, even if only 14 states rose to take the bait.

Before we get to the larger problems with relying solely on the words of President, Speaker of the House, Senate Majority Leader, Secretary of State, Prime Minister, and new starting QB of the Philadelphia Eagles Jonathan Gruber, it seems worth noting that Gruber did not actually make the argument that Epstein attributes to him:

In the law, it says if the states don’t provide them, the federal backstop will. The federal government has been sort of slow in putting out its backstop, I think partly because they want to sort of squeeze the states to do it. I think what’s important to remember politically about this, is if you’re a state and you don’t set up an Exchange, that means your citizens don’t get their tax credits. But your citizens still pay the taxes that support this bill. So you’re essentially saying to your citizens, you’re going to pay all the taxes to help all the other states in the country. I hope that’s a blatant enough political reality that states will get their act together and realize there are billions of dollars at stake here in setting up these Exchanges, and that they’ll do it.

Gruber didn’t say that federally established exchanges didn’t provide subsidies in order to squeeze the states. He said that the federal government was delaying setting up the federal backstop in order to squeeze the states. The implication of Gruber’s argument is in fact that the federal backstop would provide the tax credits, but that states couldn’t rely on it being set up immediately. To be clear, this argument doesn’t make any sense either — another reason to ignore what Gruber, who did not vote for or draft the relevant portions of the statute, has to say about it rather than treating him as the authoritative interpreter of the law — but he does not in fact say anything about Congress not making tax credits available to coerce the states.

Which isn’t surprising, since the idea that the ACA went to the the trouble of establishing a federal backstop that would entail having no insurance to sell to no qualified customers is absurd on its face, and is also inconsistent with all of the relevant evidence about legislative history and intent.

Epstein has another strange argument in favor of willfully misconstruing the statute:

During oral argument, Chief Justice Roberts asked whether a different administration could switch interpretations on the statute to meet its own view. Solicitor General Verrilli answered, incorrectly, that such a switch is possible only if the new government could make out “a very strong case” in view of the “disruptive consequences” that such a shift would have. But in fact, Chevron itself involved just that kind of switch between the Carter and Reagan administrations, and no one required the substantial showing of cause that Verrilli mentioned.

Unfortunately, such disruptive flip-flops are all too possible under Chevron. That is the strongest reason why the question should be treated as a question of law, which makes it impossible for one administration to reverse the decision of its predecessor.

The correct answers to the question of whether a future Republican administration could deny subsidies on the federal exchanges if the Court decides to uphold Burwell based on Chevron deference are “yes” and “your point being?” Changes in regulatory policy are things that happen when new administrations are elected. I doubt that a future administration would in fact reverse this IRS regulation, but 1)that doesn’t mean that it’s beyond their authority, and 2)if Republicans want to deny subsidies on the federally established exchanges, it should be done through a Republican White House rather than having the courts do their dirty work.

This isn’t to say that I wouldn’t decide this as a question of law — the Court should rule that the statute, properly construed, makes the credits available on federally established exchanges — but Chevron deference would certainly be more plausible than determining that Congress established a federal backstop it knew would serve no purpose.

And finally, the inevitable punchline:

The better choice, on balance, seems for the Court to strike down the IRS regulation and for Congress to work out some fix. That fix should not include expanding the coverage to federal exchanges, which would allow the Obama administration to work an illicit extension of the initial program. A far better suggestion is to make block grants to the states, which could fund subsidies to pick up the slack when the IRS regulation is struck down. The Republicans might well pass such legislation quickly and dare President Obama to veto it—which he might do to legitimate his own misconceived legislation.

I don’t know what’s funnier — the idea that there’s any chance this Republican Congress would pass a fix, his preemptively blaming Obama for the chaos of the Supreme Court wrecking the exchanges, or the assertion that it would be “illicit” for Obama to continue to provide tax credits on federal exchanges if he was explicitly authorized by Congress to do so. The assumption-without-argument that “block grants” would be better than a uniform federal exchange even though most states have demonstrated neither the willingness or the competence to establish exchanges is also unintentionally amusing. A definitive version of ACA trooferism, in other words.

LBJ’s Missing Green Lantern

[ 40 ] March 13, 2015 |

Julian Zelizer has an excellent new book about the Great Society. I have a review of it up at the Washington Spectator:

But the most crucial factor working for Johnson was that congressional majorities didn’t have to be persuaded to favor civil rights. With the violence necessary to sustain American apartheid being revealed by the civil rights movement, not only liberals but moderates on both sides of the aisle supported the key provisions of the Civil Rights Act, making it easier to break the logjam created by a minority of Southern segregationists. Overcoming this minority obstruction was far from a trivial accomplishment, but it’s much more easily done when large majorities of Congress and the public are already on your side. And powerful social movements are much more likely to persuade recalcitrant legislators than are presidential blandishments.

LBJ wasn’t the only 1964 presidential candidate responsible for the substantial achievements of the 89th Congress. Barry Goldwater deserves some credit for the progressive legislation Johnson signed into law, including Medicare, Medicaid, and major federal educational and anti-poverty spending. Johnson’s crushing defeat of Goldwater brought with it huge and unusually liberal Democratic congressional majorities. The Republicans who survived “were profoundly shaken by the election returns and believed they could no longer afford to obstruct Johnson’s proposals.”

Zelizer also shows that Medicare was not imposed top-down by Johnson, but its shape was largely determined by negotiations within Congress, with LBJ frequently taking a hands-off role. (And the decision not to pursue universal health care reform was in itself a major compromise, particularly since the decision to provide health insurance to those over 65 made getting the necessary support for European-style health care effectively impossible.)

The liberals who built the Great Society also derived some political capital from a darker source: the escalating disaster in Vietnam.

The thing is, the man who more or less invented the modern position of Senate Majority Leader probably does have the highest legislative WAR of any progressive president in history. It’s just that the effects of presidential action apart from agenda-setting in terms of getting new legislation enacted are very marginal. I’ve said it before and I’ll say it again: the White House is where major change ends, not where it begins.

“Stop Hitting Yourself,” Cnt’d.

[ 21 ] March 12, 2015 |

Even by Texas criminal justice standards, this is breathtakingly cynical.

On Bobo’s Victim-Blaming

[ 148 ] March 12, 2015 |

As a long-time admirer of the passive-aggressive responses required by NYT conventions, I can’t not link to this Krugman post, which gets perilously close to the line by linking to a direct critique of Brooks:

William Julius Wilson, in When Work Disappears, famously argued that it was a symptom: good jobs in inner cities, where African-American men could take them, went away, and the cultural changes followed.

So, how could you test that hypothesis? Well, here’s an experiment: change the structure of the economy in such a way that a large class of white men — say, white men without a college degree — similarly lose access to good jobs. If Wilson was right, we’d expect to see a sharp decline in stable marriages, a rise in unwed births, growing drug use, and other forms of social disruption.

And that is, in fact, exactly what happened: William Julius Wilson was right. Which makes it remarkable to see people look at that very evidence and say that it shows that the real problem isn’t money, it’s values.

The linked Stoker Bruenig post is worth your time as well.

On the “Stop Hitting Yourself” Theory of Statutory Interpretation

[ 32 ] March 12, 2015 |

As I recently observed here, the hot theory among apologists for the latest legal who are uncomfortable with the Moops-invaded-Spain theory is that 1)the Republican minority in the Senate stopped Democrats from holding a conference to harmonize the House and Senate versions of health care reform so 2)a Republican Supreme Court should wreck the health insurance exchanges in most states contrary to the purpose of the statute so that 3)a Republican Congress can do nothing about millions of people losing their health insurance because 4)this would lead to a more functional government. You may be surprised that I find this…unpersuasive:

This version of events omits a highly pertinent fact. Dalmia and Douthat conspicuously fail to fully explain the reason that Democrats were unable to harmonize the bill in conference: the Republican minority in the Senate would not allow them to hold another vote. The ACA’s opponents implicitly treat the routine supermajority requirement imposed by congressional Republicans as a natural part of the legislative process rather than a highly unusual and unnecessary historical development. During most periods of history, the majority party would have been able to make final changes to the legislative language as it saw fit.

Dalmia’s claim that “the administration is asking the court to hand it a victory that it couldn’t obtain through the normal legislative process” stands reality on its head. A more accurate summary is that the Republican minority in one house of Congress prevented the majority from voting on a bill that went through a conference between the House and Senate, and now wants to use this as a justification to have its allies on the judicial branch gut the law.

Douthat’s apparent belief that overturning the law would make the system more functional is deeply odd. Rewarding dysfunctional behavior doesn’t strike me as an effective means of disincentivizing it. Far from the modest approach it claims to be, it represents a “stop hitting yourself” logic that doesn’t have a great deal to recommend it as a theory of statutory interpretation.

Alas, I do think that the “let Congress clean up its own mess” is exactly the kind of bullshit minimalism that could appeal to John Roberts.

When Unjust Things Happen to Bad People

[ 71 ] March 12, 2015 |

To state what is probably not terribly controversial, “Blurred Lines” is an atrocious Marvin Gaye rip performed by a skeevy guy who is substantially less talented than his father even though his father is Alan Thicke. Much more controversially, I think Pharrell – Nile Rodgers = Meh. So I had the initial Nelson Muntz reaction upon seeing that they had been ordered to pay the Gaye estate 7 million smackers. But Dan Reitz and Michaelangelo Matos convince me that it’s a really terrible precedent.

No, Really, the Supreme Court Going Troofer Would Be A Disaster

[ 77 ] March 11, 2015 |


Very important point by Greg Sargent here:

Scott Walker has now supplied yet another piece of evidence that Republicans will likely find themselves unable or unwilling to act if the Supreme Court guts Obamacare subsidies for millions in three dozen states. In the process, he’s illustrated how such a Court ruling will likely set in motion a mad frenzy of buck-passing among Republicans over what to do about all those people — and how that might spill over into the 2016 presidential race.

A spokesperson for Walker has now confirmed that should the Court rule that way, he will not view it as the state’s responsibility to fix the problem that results — and instead says that responsibility will fall to the federal government.

The textbook version of checks and balances maintains that institutions will jealously guard there own power. In practice, however, high veto point systems provide ample opportunity for public officials to evade responsibility. The combination of separation of powers and federalism will allow Republican public officials to evade responsibility for the consequences of Republican Supreme Court accepting the premise of a libertarian lawsuit to achieve Republican policy goals. And, sadly, it has a good chance of working: the assumption that voters will know that Obama isn’t to blame for failures related to “Obamacare” is probably wrong. But at any rate, it’s abundantly clear that this is what Republicans at both the federal and state level are going to try.

Racist Fratboys and the First Amendment

[ 249 ] March 10, 2015 |

At least on the issue of expulsions, I think that Volokh is right. It’s a public university, racist speech in itself is protected speech, and I don’t know what exceptions would apply here.

It’s a moot point, but I’m less convinced that the university would be prevented from decertifying the fraternity (although I’m not saying Volokh is wrong about that either.) But it seems to me that expelling the students for this (absolutely indefensible and disgusting and racist) language violates the First Amendment. I can understand why Boren reacted so forcefully and he’s justified in harshly condemning the speech, but I don’t think this is the right remedy.

…rather than responding to multiple similar comments, it is of course true that state colleges can punish people for sexual harassment and other forms of harassment without violating the First Amendment. Harassment is conduct, not just speech. The obvious problem is that as applied to this case it’s a non-sequitur; you can’t legally “harass” someone through a video tape made and distributed by someone else without your foreknowledge or consent and viewed by third parties who were not present. This was not harassment or incitement in a legal sense; it a restriction targeted at pure speech. As for Morse v. Fredrick (the “bong hits 4 Jesus” case), 1)post-secondary education is a very different animal than high school education, and 2)that decision was wrong anyway.

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