The Second Circuit Court of Appeals has ruled that the National Security Agency’s bulk collection of American phone records is illegal, exceeding the agency’s authority under the Patriot Act. The ruling comes as congress takes up legislation to reauthorize major sections of the act. Without congressional action those provisions will expire June 1. Mitch McConnell and GOP hawks are pushing for a permanent and unrestricted reauthorization, while the House has passed a reauthorization that would severely restrict NSA surveillance.

With fortuitous timing, my column this week for National Review Online looks at the big split on NSA spying among Republican presidential candidates. Generally speaking, Paul, Cruz, Perry, and possibly Huckabee and Santorum oppose the metadata program or at least seek restrictions on it. Bush, Rubio, and Christie support the program. Walker straddles.

http://www.nationalreview.com/article/417939/republicans-and-patriot-act-michael-tanner

The mistakes men make live after them…

Last week, I wrote a column for National Review Online about the minimum wage.

http://www.nationalreview.com/article/417280/voters-want-higher-minimum-wage-voters-are-wrong-michael-tanner

Most of the column dealt with some new studies that showed minimum wage increases resulted in job losses and hurt the vary low-wage workers they are designed to help. I also looked at where the Republican presidential candidates stand on the issue. Santorum is in favor of an increase. Rubio and Jindal oppose an increase but support the idea of a minimum wage. The others, including, surprisingly, Jeb, oppose the minimum wage to one degree or another.

In the course of the article, I mentioned that Seattle had recently voted to raise its minimum wage to $15/hour by 2022. I wrote that, while it was too early to know the results of that change, “There has also been a sharp fall-off in the number of firms seeking a business license in the city that has roughly corresponded with the passage of the minimum-wage hike.”

I was wrong.

The information came from looking at the Seattle Business License Database, which I compared with information supplied by economics blogger Evan Soltas. However, searching by specific NAICS code only returns those companies with a description, which is less than the total number of licenses. For every category except drinking places, this difference was not significant, which led me to believe, that the differences between the figures found through this method and Evan’s were directly comparable, especially because the number of licensed businesses had declined from 3829 to 3808 from December 2014 to March 2015 via Evan’s calculations.

The vast majority of the drop-off was concentrated in code Drinking Places (alcoholic beverages) and with this reduction the aggregate number of licensed business in the categories analyzed was lower. Thinking this odd, I hads my research assistant contact Evan to see if he had any thoughts on the matter. He later responded that he did not see the same effect, and that he used the index of the 100 most popular North American Industry Classification System codes for his results, which showed business licenses both with and without description. In using the index , we saw that there was a discrepancy between the licenses listed with descriptions in Drinking Places (275) and the total amount of licenses listed (currently 403).

The net result is that, while there has indeed been a decline in some categories such as “limited service restaurants,” there has not been an overall decline in business applications in the food and beverage industry.
By that time I was able to determine this, my NRO column had not only been printed, it had been picked up by other outlets. Mistake compounded.

I believe the basic article remains accurate, but clearly, in commenting on Seattle business licenses, I blew it. I regret the error.

So, as a strong supporter of marriage equality and someone opposed to bigotry in all its forms, but also as a supporter of property rights and the freedom to associate (or not associate), how do I feel about Indiana’s new religious freedom law? The truth, not surprisingly, is that I’m somewhat torn.

A few thoughts:

1. First, what the law actually does: It does not explicitly allow business owners to deny service to gays or anyone else. Like the federal Religious Freedom Restoration Act and those of some 22 other states, it establishes a balancing test. It provides for a defense against government action or private law suits, if those actions “substantially burden a person’s exercise of religion.” The phrase “substantially burden” is telling. Someone invoking the law would have to prove that the activity, rule, or regulation in question was a “substantial burden,” not merely that it went against their religious beliefs. Even then, the government or plaintiffs could prevail if they proved that there was “an overriding government interest.” Therefore, the oft-cited hypothetical burger joint owner who wants to refuse to serve burgers to gay patrons is unlikely to prevail. In the past, the RFRA has served as the basis for suits to allow Muslim prison guards to grow a beard or Native Americans to use peyote in religious ceremonies.

2. That said, the law was not passed to protect Muslim prison guards or Native American peyote-smokers. This was designed to protect certain Christian business owners (bakers, florists) from having to provide services for gay weddings.

3. In general, I believe that bigots have a right to be bigots. People have a right to refuse to provide services or associate for whatever reason they want, justified or not. The proper response is not a law forcing people them not to discriminate, but for decent people, in turn, to refuse to patronize or associate with bigots. If Fundamentalist Florist refuses to provide flowers for a gay wedding, the answer isn’t to drag them to court, but for the rest of us to stop buying flowers from them. That’s why I’m pleased that Cato may be the only organization to file court briefs in favor of both gay marriage and the photographer that refused to photograph one.

4. The exception to the above occurs when discrimination is so wide-spread as to make life untenable for the group being discriminated against. A good example is the Jim Crow south. In that case, it may be necessary for government to prohibit private discrimination. Private action simply doesn’t provide a remedy, and it was not the case that if lunch counter A refused to serve blacks, they could just go next door to lunch counter B. That is why, despite my libertarian proclivities, I support the 1964 Civil Rights Act.

5. This does not, at the moment, appear to be the case for gays or gay marriage. The handful of bigoted florists and bakers that refuse their services to gays, does not yet appear to impose a substantial burden on gays who want to get married. There are plenty of alternative bakers, florists, and photographers. Those gays filing suit in these cases appear to be mostly trying to make a point. There are probably better ways to do so.

6. But, speaking of making a point, that’s what Indiana’s law is all about. It is Indiana lawmakers expressing their disapproval of gay marriage. The state had tried to ban gay marriage, but the federal courts rightly overturned that law. Now, lawmakers are more or less throwing a hissy fit. Cases about the rights of bigoted photographers and bakers are already making their way through the courts. We don’t have any idea yet, how they will turn out, which, at the very least, makes Indiana’s actions premature.

7. In the end, I think much of the commentary around Indiana’s law has been overly hysterical. That said, I would have voted “no.”