Barbecue Theory
The word barbecue means different things to different people in different parts of the country. My spouse grew up in California and thinks, or used to think, that anything cooked outdoors on a grill is barbecue. And that’s fine. But then most people are also aware of the kind of barbecue that is slow-roasted, predominantly pork, and usually attended by “bbq sauce,” and that this kind of barbecue is, culturally and gastronomically, altogether different from generic grilling. If you want, you can think of the more specialized genre as “southern barbecue”; to me it is simply “barbecue.”
Reflecting on why barbecue passions sometimes burn hot, Don Taylor posits what I would call the nostalgia theory of barbecue:
[W]hy do many people seem to care so much about barbecue? I believe the answer lies in the economics of pigs, especially in the agrarian South of years past.
[* * *]
I think feelings are so strong about barbecue because feasts around pigs were infused with meaning since they represented shared experiences with loved ones and friends in both good times and bad. So these meals of both celebration and lament, centered around cooking a pig, became culturally meaningful in a way that make me interested in disagreeing with others about the best type of sauce to put on your barbecue. Because these events are important, it makes the way barbecue is prepared and served, important. Even if you are many generations away from a farm, I suspect this is the basic reason that many people have such strong feelings about barbecue.
This is all sociologically interesting, and in the rest of the post Don gives us a nice glimpse into a piece of his heritage, the tradition of “pig pickin’,” and the economics of cull hogs—all of which I enjoyed.
Still, on such a serious matter as this, I feel I must question some aspects of Don’s account, which seems to imply that barbecue fervor has more to do with a cultural context than with the qualities of the food itself. I’ve never been to a pig pickin’, and I doubt that more than a fifth of my recent forebears ever did either. The closest thing to pig pickins in my own experience would have to be something like neighborhood fish fries or maybe Thanksgiving dinner. I like fried fish and roast turkey, but they do not come close to spurring the same level of carnivorous infatuation in me.
It bears mention that, done right, barbecue pork tastes and smells diabolically good. Consequently I’m more inclined toward a biological/chemical theory of barbecue. Indeed I admit to having had in the past a vague notion there must be some sort of dedicated barbecue/bacon receptors or reuptake inhibitors or something in the brain somewhere. Like bacon, barbecue pork punches a powerful combination of buttons: the rich aroma, the fatty, the salty, a touch of the sweet; ideally, the bbq sauce contributes a moderate element of spicy and perhaps tangy but without interfering with the native qualities of the pork proper. And everyone knows there’s something preternaturally addictive about bacon. 43% of respondents in a Canadian survey said that they would rather have bacon than sex. A sizable corner of the internet is devoted to various forms of baconalia. (Btw, here’s The Incidental Economist with a side of bacon.) Instinctively I’d have thought all this points to a biological explanation.
But then this NPR story reminds me that taste is mostly about odor, and that we shouldn’t think too reductively about the effects of odors. Interviewed in the story, cognitive scientist Johan Lundstrom specifically notes a social aspect of the phenomenology of bacon:
Because bacon is one- to two-thirds fat and also has lots of protein, it speaks to our evolutionary quest for calories, Lundstrom says. And since 90 percent of what we taste is really odor, bacon’s aggressive smell delivers a powerful hit to our sense of how good it will taste.
“There’s an intimate connection between odor and emotion, and odor and memory,” Lundstrom says. “When you pair that with the social atmosphere of weekend breakfast and hunger, bacon is in the perfect position to take advantage of how the brain is wired.”
A “weekend breakfast” doesn’t reach the depths of social meaning that Don’s pig pickins carry, but it strikes me that human emotion, memory, and meaning generally are concepts without application outside the social context in which they take shape. Bacon and barbecue alike, acting through the sense of smell, register in these channels and therefore surely do operate, in a nonspecific way, on a level rooted in social consciousness and nostalgia. So I credit Don with adding an important dimension to my understanding of barbecue and why I want it so damn much.
Starry Night (in bacon)
Image via bioephemera.
Weekend Wordery: Hoisted from Brad DeLong’s Blog Titles: Why Oh Why Can’t We Have More Grammatico-Mathematical Proofs in the Comments
Did someone say "Ghoughpteighbteau"?
Any sequence of the word “buffalo” of length n>1 is a grammatical sentence of English.
First, let n be odd. We start with n=3: “Buffalo buffalo buffalo”; that is, some buffalo do buffalo buffalo, i.e., some buffalo are buffaloed by buffalo. But of course the buffalo who are buffaloing may themselves be buffaloed by buffalo, so just as some cats that watch mice are chased by dogs, or as we say, cats dogs chase watch mice, buffalo that buffalo buffalo themselves buffalo buffalo, and we can say that buffalo buffalo buffalo buffalo buffalo. Anytime we have the noun buffalo, we can add the relative clause “who are buffaloed by buffalo”, or better, instead of the noun phrase “buffalo who are buffaloed by buffalo”, we may say simply “buffalo that buffalo buffalo”, then add the rest of the sentence, yielding “Buffalo that buffalo buffalo buffalo buffalo”, or even better, “Buffalo buffalo buffalo buffalo buffalo”. To a sentence consisting of n (odd) occurrences of the word, we can produce a sentence of n+2 occurrences.
Thus for any odd n, a sequence of n occurrences is a sentence.
But just as a dog that chases cats is a dog that chases, buffalo that buffalo some buffalo are buffalo that buffalo, so from one of our sequences of an odd number of occurrences, we can lop off the final direct object, producing a sequence of an even number of occurrences that is a grammatical sentence. For any n>1, odd or even, a sequence of n occurrences of “buffalo” is a grammatical English sentence!
Woah. That is simply genius.
- By everyone, I mean everyone except Karl Smith, who prefers the more colloquial “Fish fish fish fish fish….” [↩]
Weekend Birdery: Hummingbird Tongues
Science Friday brings us the latest in tongue research in this video. Apparently what we previously thought we knew about how hummingbirds drink—and about how dogs drink, but this isn’t weekend doggery, so whatever—was wrong. It turns out a hummingbird’s tongue isn’t really like a straw or a siphon. It’s more like . . . well, I dunno . . . a zipper cone?
Is the Mandate Penalty a Penalty?
Arguments for the constitutionality of the individual mandate as an exercise of the taxing power often start by noting that the penalty is reported on income tax returns, calculated as a percentage of income (with a flat minimum and a cap), and codified in the Internal Revenue Code. They go on to detail the ways the ACA’s penalty differs from typical penalties: there is no scienter requirement (one’s state of mind is irrelevant to assessment of the penalty); criminal punishments are not available to enforce payment; the amount of the penalty is reasonable, not exorbitant, and limited to the actual cost of qualifying coverage; and it is imposed in proportion to the frequency of noncompliance, month by month. These points have been fixtures of the United States’ briefs throughout the ACA litigation.
Two weeks ago, arguing before the Fourth Circuit, Acting Solicitor General Neal Katyal went momentarily off script and made a point I don’t recall seeing before. At around 1:15:28 of the audio for the argument in Liberty University v. Geithner (mp3 available here), Katyal says:
Unlike any other kind of criminal penalty which I’m familiar with, when you pay the penalty here, you are excused altogether from the underlying thing that the government is asking you to do, which is to have insurance.
This is a surprisingly tricky argument to tease out. First, a quick set up: Katyal wants to establish that the mandate is an exercise of the taxing power. To do that, he is arguing that the mandate penalty operates like a tax and that it does not operate like all or most other penalties. By distinguishing other penalties, Katyal hopes to strengthen the inference that the mandate is a tax. The more essential or fundamental the distinction, the stronger the inference. So that’s where we are.
Now, note that Katyal couldn’t possibly mean you are generally or prospectively excused from the mandate when you pay a penalty for past noncompliance. You will still be required to get insurance in the future, or else pay another penalty. This is no different from any other kind of penalty. If you are a hospital administrator and you get hit with a “civil monetary penalty” (a fine) for some improper HIPAA disclosures, obviously payment of that penalty does not give you free license to go hog-wild releasing even more personal health information.
What Katyal must mean instead is that paying the mandate penalty excuses you from correcting past noncompliance. Without undertaking a systematic inquiry, it seems plausible that other laws’ penalty schemes typically do require corrective action in addition to payment of penalties. HIPAA imposes higher penalties for uncorrected violations. Violations of Stark, the law prohibiting physician self-referrals, incur stiff penalties and require the physician to return the proceeds derived from prohibited referrals. Pay your taxes late, you pay a penalty—and you pay your taxes. In various ways, each of these penalties requires corrective action. The ACA does not. So that’s a promising interpretation of Katyal’s argument. Now let’s evaluate it.
There’s something a little weird about the idea of correcting the fact that you were uninsured at some time in the past. If it were just a matter of money being in the wrong place, like a late tax payment that’s in your bank instead of the U.S. Treasury, you could easily fix that: just move the money. But there’s not really anything you could do to correct your past insurance status, so it’s not exactly clear that there’s anything for the law to excuse you from. I suppose we might say you are excused from having to get retroactive health insurance, but that would be a purely notional benefit to you, because there is no such thing as retroactive health insurance. The law might as well excuse you from giving birth to yourself.
The question then is whether excusing people from corrective action tells us that (a) the ACA penalty is not like other penalties in an important way; or that (b) the ACA penalty differs only as a result of the peculiar nature of ”the underlying thing that the government is asking you to do.” Whether or not (a)—Katyal’s thesis—is right, I think (b) is wrong. It would be a mistake to think that the above-mentioned weirdness arises only because insurance is involved. The weirdness arises because the fact that you did not have insurance is irreversible.
But other things can be just as irreversible. When a HIPAA violation occurs and someone’s protected health information has been disclosed, you can stop further disclosures from happening and fix whatever caused this one, but you can’t un-disclose the disclosed information. You can’t just wipe the memories of anyone who happened to see it. The genie is out of the bottle and can’t be stuffed back in. However, unlike the ACA, HIPAA does require that you correct the cause of your noncompliance. If your patients’ records aren’t secured, you’ll have to secure them. Which is to say, in the context of HIPAA, “corrective action” is not about undoing past violations—it’s about preventing future ones.
And that brings us to a clear, meaningful difference with the individual mandate. The ACA penalty scheme is fundamentally indifferent to the causes of noncompliance, past or future. It is more incentive than corrective or deterrent. It offers you a choice—get coverage or pay the penalty—but there are no enforcement consequences beyond the penalty. In the eyes of the law, failing to get insurance will be like making early withdrawals from your 401(k). You are free to do it, for any reason or none, but you will pay a price for it on your taxes.
The State of the Birds 2011
The 2011 State of the Birds report (pdf) was released a few weeks ago to a flurry of media attention1. And so it is altogether meet that I announce to you, my fellow Americans, that the state of our birds is . . . dispersed among an impressive real estate portfolio held by the United States government and managed by a dizzying array of public agencies:
Today, more than 850 million acres of land and 3.5 million square miles of ocean are publicly owned, including more than 245 million acres managed by the Bureau of Land Management, 6,000 State Park units, 1,600 Marine Protected Areas, 550 National Wildlife Refuges, 350 military installations, 150 National Forests, and nearly 400 National Park Service units.
[* * *]
These habitats are vital to more than 800 bird species in the U.S., 251 of which are federally threatened, endangered, or of conservation concern. More than 300 bird species have 50% or more of their U.S. distribution on public lands and waters.
Note that the phrase “federally threatened” should probably not be taken literally.
Last year I somewhat jokingly complained about the 2010 SOTB report’s “unforgivable paucity of informative charts,” so I would be remiss if I didn’t mention this year’s much improved, more informative charts. They’re much better. And this map of public lands is helpful, giving you a sense of where these places are (= in the west, it seems).
I like the idea of a State of the Birds report. And it’s a nice-looking report, to be sure. At times it reads like the executive summary of a more comprehensive report out there somewhere—and that’s the report I really want to see. But it doesn’t exist.
- Note that media attention was technically unrelated to the release of the SOTB. [↩]
Kingdom Come
Albrecht Dürer, The Four Horsemen of the Apocalypse, a woodcut. Germany, AD 1498.
Vaughan Bell has an interesting piece at Slate about research into how followers of apocalyptic cults cope when their end-of-the-world predictions don’t pan out. The answer is that they don’t. That is, they don’t ever really face up to it, because to them, the great clash of theory and fact never happens. That’s because they’ve rigged their theories so that contrary facts may not disturb the integrity of the theory. Bell concludes:
For those not waiting for the world to end in a storm of fire and light it is easy to write off the believers as deluded, but Festinger was not so wide of the mark when he suggested that we adapt to even the most unlikely of contradictions using nothing more than our methods of everyday rationalization. The faithful could just as easily be those who stubbornly stand by disgraced politicians, failed ideologies, dishonest friends, or cheating spouses, even when reality highlights the clearest of inconsistencies. Armageddon is unlikely to arrive this weekend, but most of us have lived through it many times before.
Via Mind Hacks. Also interesting to see, via Kevin Drum, that the crackpot behind this particular rapture theory spent upwards of $100 million publicizing it, with the result that we’ve all had a good time making fun of it.
That said, in time the sun and stars will all burn out, and human life will be extinguished forever.
And Now for Something Completely Different
In 1972, the President of the United States could ride BART:
Richard Nixon, in California for a day of campaigning, rides BART from San Leandro to Oakland. Photo taken Sept. 27, 1972. AP photo.
Via The Poop. And yes, I did just write “The Poop.” It’s a blog.
A Surprising Concession on Severability
Brad Joondeph comments on a surprising development in the United States’ reply brief (pdf) before the Eleventh Circuit Court of Appeals:
[T]he United States is now conceding that the ACA’s community-rating and guaranteed-issue provisions are not severable from the minimum coverage provision. The government had essentially conceded as much in a hearing before the district court, but I think this may be the first time it has done so in a brief.
There is a fair amount of strategic sense to this. First, making such a concession only bolsters the government’s argument that the minimum coverage provision is essential to the ACA’s broader regulation of the health insurance or health care services markets. Second, it makes the government seem more reasonable. Third, it essentially forces the Supreme Court’s hand a bit when the case ultimately gets there: if the justices want to take down the mandate (which might be politically popular), they will also have to bring down the ACA provisions that overwhelming majorities of Americans support. And that would not be so popular.
The background, of course, is that when District Court Judge Roger Vinson ruled the Affordable Care Act’s minimum coverage provision (i.e., the individual mandate) unconstitutional in Florida v. HHS, he struck down the entire ACA on the grounds that its many provisions were “inextricably bound together in purpose and must stand or fall as a single unit.” I’ll take Joondeph’s word that there is strategic sense to the administration’s concession, but it’s questionable whether the law really requires non-severability of the guaranteed-issue and community-rating provisions. Certainly there is strong evidence that such regulations can destabilize insurance markets in the absence of a coverage mandate. But it is not, I think, generally desirable that we put judges in the position of conducting severability analysis based on their sense of what policy outcomes are more workable than others.
Severing unconstitutional provisions from a statute necessarily calls for some measure of legislative judgment. But if the focus of the analysis is on limiting the extent of judicial lawmaking, rather than on the workability of various policy alternatives, it’s not clear that the right result would be to lump the guaranteed-issue and community-rating provisions in with the mandate.
The IPAB and Its Critics
The Affordable Care Act creates a 15-member independent board to propose measures to slow the cost growth in federal health programs. The board is known as the Independent Payment Advisory Board, or IPAB.
The IPAB makes periodic appearances at the business end of Republican talking points. Lately Rep. Paul Ryan (R-Wisc.), Chair of the House Budget Committee, has been raising the call to repeal the IPAB, despite being the same Rep. Paul Ryan who introduced legislation in 2009 creating an independent commission with powers exceeding the IPAB’s—an IPAB “on steroids”—as Don Taylor recently reminded us.
There are basically two lines of attack on the IPAB, both tending somewhat toward the hysterical, and both easily answered. One is the charge of DEATH PANELS or, in more refined parlance: rationing. It seems the force behind the indefatigable claim that the IPAB will ration care has only been made stronger by a provision in the ACA (pdf) specifically forbidding the IPAB from rationing care:
The proposal shall not include any recommendation to ration health care, raise revenues or Medicare beneficiary premiums under section 1818, 1818A, or 1839, increase Medicare beneficiary costsharing (including deductibles, coinsurance, and copayments), or otherwise restrict benefits or modify eligibility criteria.
PPACA § 3403, via Austin Frakt. There’s really nothing else to say about that.
The second line of attack consists of the more rarefied charge that the IPAB is undemocratic—a kind of procedural perversion of the normal constitutional order. DrRich at the Covert Rationing Blog recently made the case that the IPAB possessed “dictatorial powers,” a claim he walked back a bit after a thorough takedown by Shadowfax at Movin’ Meat. The key here is that Congress is allowed to delegate powers to administrative agencies if those powers are limited by an “intelligible principle,” like, say, the principle of being related to health care payment reform recommendations.
The extent to which congressional procedure constrains Congress’ own role in reforming payment policy is a separate matter. Shadowfax notes that one Congress cannot prevent future Congresses from changing the law, which is true. I’d explain the point this way: the Constitution lays out the basic framework for lawmaking but gives Congress authority to set its own procedural rules with regard to just about everything else. That means that Congress is free to erect procedures that impede its own effectiveness if it wants to; and it means that Congress is free to remove those impediments if it wants to.
Self-imposed legislative constraints like supermajority requirements do create an uncomfortable doctrinal tension when paired with a relaxed approach to the delegation of legislative authority to independent agencies. But unless you think Congress is not permitted to delegate IPAB-type powers to any agency, there is no real constitutional problem with procedural rules designed to make it harder for Congress to intervene in the the agency’s exercise of the limited discretion Congress itself has delegated.
UPDATE: made the terrible and wrong introduction a little less terrible and wrong.
Guide to Philosophical Referee Hand Signals
Created by Landon Schurtz, via Brian Leiter, via Alex Tabarrok, via Matt Yglesias.
Was the Fourth Circuit Baffled by the Inactivity Argument?
The Fourth Circuit Court of Appeals heard oral arguments on the constitutional challenges to the ACA in Liberty University v. Geithner and Virginia v. Sebelius on Tuesday. Tim Jost has an authoritative overview and summary at Health Affairs, and Brad Joondeph has some insightful notes at the ACA Litigation blog. After listening to the audio, the single dominant impression I’m left with is something I already knew: Acting Solicitor General Neal Katyal has got some serious game.
The arguments have sparked some interesting intramural debate at the Volokh Conspiracy about whether and why the judges might have been skeptical of, or baffled by, the challengers’ Commerce Clause argument and its reliance on the much-ballyhooed distinction between activity and inactivity. Orin Kerr points out that the criminal-law treatment of acts and omissions is not always a model of clarity, and that the common-law “actus reus” requirement—the requirement that there be a “guilty act” and not just a “guilty mind”—may be satisfied by an omission or failure to act in certain instances. When someone is under a legal duty to act and fails to do so—i.e., is inactive—the actus reus requirement is met and the government may impose punishment on the person even in the absence of a specific, affirmative act.
If the proposed activity requirement for Commerce Clause regulation were modeled on the doctrine of actus reus, it would have zero effect in the context of the individual mandate. Consider: The mandate imposes a kind of legal duty, the duty to obtain health insurance; the “inactivity” of the uninsured is the failure to carry out that duty; and failure to carry out the duty to obtain health insurance triggers the federal government’s authority to regulate, which it does by means of a monetary assessment (or “penalty”) on your annual income tax.
Now, obviously the analogy is imperfect, and it’s important to note that no one is specifically advocating that the activity/inactivity distinction be patterned after the common law act/omission distinction. It wouldn’t have to be. But Kerr wants to make the broader point that we don’t really know what the distinction will mean when elevated to constitutional doctrine, given the vagueness and ambiguity it carries. I sympathize, though I don’t think the point is unanswerable. There’s a lot of vagueness and ambiguity in legal doctrine. There’s a lot of vagueness and ambiguity in everything, at the margins. But as Jonathan Adler responds, paraphrasing somebody (Edmund Burke maybe?), “[W]e know the difference between day and night even if twilight blurs the line of demarcation.”
Activity and inactivity were much discussed at Tuesday’s hearing, but metaphysical unpleasantness was largely avoided. In Katyal’s hands, the government’s argument seems a little tighter and more refined, while following broadly the same outline: The individual mandate is a regulation of economic activity—an activity in which we all partake, eventually—namely, the consumption of healthcare services. Its purpose is to stabilize the financing of healthcare services through the private insurance system. These are appropriate means and ends for a valid exercise of authority under the Commerce Clause. But even if the courts were to construe the mandate as regulation of inactivity, it would still be authorized under the Necessary and Proper Clause as a rational means to effectuate the ACA’s comprehensive scheme of insurance regulation. Thus, Katyal argued, it doesn’t matter whether the courts do or do not recognize an activity requirement under the Commerce Clause. The mandate should be upheld either way.
It’s Not All about Baby Boomers
It is common for people to think, or assume, that projected growth in Medicare costs is primarily a result of retiring baby boomers. But the graph below, from Austin Frakt, shows that if the rate of increase in Medicare spending were just a function of growth in the population of seniors, our long-term budget outlook would be in much better shape:
The darker blue is the growth in costs attributable purely to the aging of the population. The infographic in the last post suggested that the elderly portion of the U.S. population is not extraordinarily high by international standards. The point here is that cost trends do not reduce to demographics in any case.
More on Those Finest of Fine Stitches
The second in a two-part series of infographics on medical costs from Medical Billing & Coding, via Austin Frakt:
Via: Medical Billing And Coding.
And Now for Something Completely Different…
This is something I never would have imagined happening inside R2-D2:
Via Jon Chait. Many more at the link.
This Week in Fed Reform
Rep. Barney Frank (D-MA) has a new bill to trim the membership of the Federal Open Market Committee (FOMC), the rate-setting arm of the Federal Reserve. WSJ:
The bill would remove from the 12-member policy-setting Federal Open Market Committee the five members who represent regional Fed banks. Only the seven-member board in Washington, which currently has two vacant seats, would get to vote on interest rates. The congressman said this would make the Fed more democratic and increase “transparency and accountability on the FOMC” by eliminating those officials who are effectively picked by business executives. (Read the bill.)
[* * *]
Analysts said Frank’s new proposal could hurt the Fed’s independence from Congress. Dan Greenhaus, analyst at Miller Tabak & Co., said the move is “one step closer to having monetary policy dictated by the Congress.”
“Analysts” say lots of things. I took several steps towards Congress myself when I walked eastward toward the Capitol after breakfast this morning, but since I’m 3,000 miles away I’m still not very close. Plus, even if they haul me in front of some oversight committee, I won’t necessarily have to do everything they want me to do. Indeed, I’m likely to get very different instructions from different members, making it hard to know which policies I should consider to have been dictated by Congress rather than within my officially recognized discretion.
So I’m not sure Frank’s bill would put us one step closer to Congressional control of monetary policy. But it is one step closer to having monetary policy dictated by an agency whose composition is not baldly unconstitutional. And it is one step closer to making the FOMC less independent from the President, who is charged with the constitutional responsibility to take care that the laws be faithfully executed and who should maybe therefore have a say in selecting the officials who will do the actual executing. (The regional bank reps on the FOMC are selected by private citizens (business executives) who are board members of the regional reserve banks; members of the Fed Board of Governors are appointed by the President of the United States subject to Senate confirmation.) You’d think that unitary-executive-loving Republicans would be climbing over themselves to support this bill.
I’m in no position to say what bureaucratic arrangements will lead to optimal monetary policy from the Fed. But it seems to me there are real and appropriate concerns with the lack of accountability at the Fed, and one way to begin to address those concerns would be to replace that portion of the FOMC that is 100% unaccountable to any person, office, or entity of the United States government with something at least as accountable as the Board of Governors. Like, say, the Board of Governors. Conveniently, the Board of Governors already constitutes part of the FOMC and is appointed in compliance with the Constitution.
Meanwhile, Sen. Richard Shelby (R-AL) continues to block President Obama’s nomination of Nobel-prize-winning economist Peter Diamond to the Fed Board on the grounds that he does not have enough experience.
Hat tip Niklas Blanchard.
More of my occasional forays into Fed-blogging here.
About Me
- I write this blog.
-
My twitter feed:
