The Government’s Civil Rights Bullies

Richard Epstein*

 Richard Epstein

Richard Epstein

Earlier this month, the U.S. Commission on Civil Rights issued its report Peaceful Coexistence: Reconciling Nondiscrimination Principles with Civil Liberties. The report, which was occasioned in part by the same-sex marriage debate, tries to determine the correct relationship between antidiscrimination laws and the First Amendment’s protection of the free exercise of religion. Currently, persons of religious faith have been legally charged with discrimination under state antidiscrimination laws for refusing to provide their individualized services to same-sex couples because they sincerely believe that marriage is a relationship existing only between one man and one woman. The question is: should they be granted a religious exemption?

The report’s title, Peaceful Coexistence, conveys, perhaps unintentionally, a grim social reality in the United States. Historically, of course, it described the uneasy relationship between the United States and the Soviet Union at the height of the Cold War. In that context, the phrase described how two nations, organized under radically different principles, could avoid the dangers of mutual annihilation through nuclear warfare.

One would hope that the stakes would be lower in this domestic debate, but judging from some of the rhetoric surrounding the issue, they are not. The Chairman of the USCCR, Martin Castro, recently commented publicly that “The phrases ‘religious liberty’ and ‘religious freedom’ . . . remain code words for discrimination, intolerance, racism, sexism, homophobia, Islamophobia, Christian supremacy, or any form of intolerance.” And there are powerful echoes of that position in a statement by five of the commissioners—Castro, joined by Roberta Achtenberg, David Kladney, Karen Narasaki, and Michael Yaki—who write: “These laws”—which seek exceptions to the antidiscrimination laws—“represent an orchestrated, nationwide effort by extremists to promote bigotry, cloaked in the mantle of ‘religious freedom.’”

These claims are dangerously hyperbolic in the same-sex marriage context. In making my argument, I will put aside all constitutional questions and examine the issue solely as a matter of first principles. The central point is that there is a heavy and real burden, frequently ignored, on those who wish to make claims of bigotry and phobia.

Let’s define our terms. “The English noun bigot,” Wikipedia tells us, “is a term of abuse aimed at a prejudiced or closed-minded person, especially one who is intolerant or hostile towards different social groups (especially, and originally, other religious groups), and especially one whose own beliefs are perceived as unreasonable or excessively narrow-minded, superstitious, or hypocritical. The abstract noun is bigotry.” Phobia, meanwhile, is defined as a “persistent, abnormal, and irrational fear of a specific situation that compels one to avoid it, despite the awareness and reassurance that it is not dangerous.” The issue is whether these terms are more applicable to the people of faith attacked by the commissioners, or to the aggressive commissioners themselves.

One way to answer this question is to examine a case before the Washington Supreme Court, Arlene’s Flowers, Inc. v. Ingersoll, which tests the scope of Washington’s law against discrimination that protects “the right to be free from discrimination because of race, creed, color, national origin, sex, . . . [or] sexual orientation.” The law further gives a person “deeming himself or herself injured by any act” done in violation of the statute the ability to sue for “the actual damages sustained… together with the cost of suit including reasonable attorneys' fees or any other appropriate remedy authorized by this chapter.” The provision contains no religious exemption for those who refuse to provide services on grounds of conscience.

The sole owner of Arlene’s Flowers is Barronelle Stutzman. The plaintiffs Robert Ingersoll and Curt Freed are a same-sex male couple planning a marriage. Ingersoll was a long-time customer of Stutzman who requested that she prepare the floral arrangements for his impending same-sex marriage to Freed. Stutzman refused, and gave as her reason her Christian belief that marriage takes place only between a man and a woman. She politely referred him to several other florists who were prepared to take his business, and she was even prepared to sell him the flowers he might use to create the appropriate arrangement. But she did not want to prepare the arrangements herself. In light of this, the actual damages in this case were the $7.91 it cost Ingersoll to drive to another florist. Notwithstanding, Ingersoll and Freed, represented by the American Civil Liberties Union, prevailed at trial in a lower court.

The first question is: why apply antidiscrimination law to ordinary business transactions? There are literally tens of millions of people in the United States who follow these Christian beliefs, but there is no evidence of any resistance to doing business with anyone who walks in the door. Wholly apart from the law, it is bad business to turn away customers, especially if those arbitrary sentiments drive other potential clients away. So long as an omnipotent state does not put a decisive thumb on the scale, as it did under Jim Crow, the forces of competition will quickly fill the gap in the provision of services. So why provoke a battle royale over $7.91?

One reason offered by the liberal members of the USCCR is that the case is not really about these actual damages at all, but about the larger issue of emotional distress. Thus, a statement by five of the commissioners quotes Chai Feldblum of the Equal Employment Opportunity Commission as follows:

If I am denied a job, an apartment, a room at a hotel, a table at a restaurant, or a procedure by a doctor because I am a lesbian, that is a deep, intense, and tangible hurt. That hurt is not alleviated because I might be able to go down the street and get a job, an apartment, a hotel room, a restaurant table, or a medical procedure from someone else. The assault to my dignity and my sense of safety in the world occurs when the initial denial happens. That assault is not mitigated by the fact that others might not treat me in the same way.

The term “assault” is used in a very broad sense here; it bears no relationship whatsoever to the common law definitions that mention the use or threat of force against another person, which cannot be found when a person who refuses to do business offers helpful suggestions as to where a disappointed customer may go. The law does recognize a tort of intentional infliction of emotional distress, but limits it to cases of extreme and outrageous conduct, far removed from the Feldblum scenario.

Worse still, it is dangerous to describe these injuries as “deep, intense and tangible,” when people can readily find cordial services elsewhere in a competitive industry. Nor is this supposed injury greater than that which people might feel when turned down for many other reasons, such as when a baker refuses to bake a cakethat says “Blue Lives Matter” on it. But these emotional losses just don’t count. Finally, treating these self-generated harms as actionable gives people the perverse incentive to magnify their sense of loss, when the correct social objective is to minimize it to promote general civility.

Feldblum’s account looks at only one side of the equation. It never asks about the emotional and psychological harms that people like Stutzman the florist might suffer. Indeed, she should bear the heartache if Ingersoll stalks out of her shop never to return, and should have no redress if others follow suit. But in this instance, her emotional harms arise not from customer dissatisfaction, but from concerted legal action by those bullies who want to force her out of business, unless she buckles under state power by engaging in specific acts that violate her deepest beliefs.

But not to worry. The die-hard defenders of the antidiscrimination law tell us how to make her problem go away. The same five commissioners insist:

Providing commercial goods and services does not require that one “blesses” an event. Taking pictures is not “testifying” to one’s spiritual endorsement of a legally recognized ceremony. Frosting a cake is not “helping to celebrate something ... believe[d] to be a transgression of divine law.” Selling flowers is not “contribut[ing] to” a marriage celebration. Those are secular, commercial, quid pro quo transactions; straightforward exchanges of products and services for money.

Really? The expert expositors of Stutzman’s religious beliefs are the same civil rights commissioners who are prepared to trash the lives and reputations of every businessman and businesswoman who acts contrary to their commands. What gives them the moral authority to decide the religious rights and obligations of other people? More to the point, note how well their dismissive attitudes fit the definitions of bigotry and phobia.

Stutzman has thought long and hard about her position. She draws subtle distinctions key to her faith. She works hard to respect the beliefs of those who disagree with her. She understands that she risks the loss of their business and that of others by living according to her beliefs. But she draws a line on principle. Her conduct bears no relationship to a “prejudiced or closed-minded person, especially one who is intolerant or hostile towards different social groups.” Her actions are not borne of some irrational fear.

But the words “bigotry” and “phobia” clearly do apply to the five commissioners who happily denounce people like Stutzman. They show no tolerance, let alone respect, for people with whom they disagree. They exhibit an irrational fear of those people’s influence. They show deep prejudice and hostility to all people of faith. They indulge in vicious overgeneralizations that make it harder to live in peace in a country with people of fundamentally different views. And they seem to take pleasure in bullying little people who can’t fight back.

This issue is bigger than whether religious people should be granted exemptions from certain laws. It’s about the role of state power in our lives. Our nation has to seriously rethink the question of whether it wants the state to force people to do business with others. The only cases where that makes sense are with common carriers and public utilities that have some clear level of monopoly power, where the refusal to deal means having many people going without essential services altogether. But competitive markets have powerful corrective powers. Government monopolists do not. Unfortunately, that lesson is lost on the commissioners of the USCCR, who, in their willingness to beat up on little people, fail to understand that they are the problem, not the solution. 

*Considered one of the most influential thinkers in legal academia, Richard Epstein is known for his research and writings on a broad range of constitutional, economic, historical, and philosophical subjects.

Clinton’s Tax Conceit

Richard Epstein*

 Richard Epstein

Richard Epstein

Hillary Clinton has revealed further details of her plan for the fiscal future of the United States. Her vision addresses both sides of the equation: how and from whom taxes should be raised; and how and for whom they should be spent. Her plan is squarely within the progressive tradition. She insists that “The middle class needs a raise,” and that the federal government will pay for the raise by increasing taxes on the top one percent, who once again must be made to pay their “fair share.”

The notion of diminishing returns from higher taxes at no point informs the key features of the Clinton plan: a four percent income tax surcharge on those earning over $5,000,000 per year; the imposition of the “Buffett rule” that requires an alternative minimum tax of at least 30 percent on those earning more than a million dollars per year; an increased capital gains rate for investments held for less than six years; a hefty increase in the estate tax, by reducing its base to $3.5 million per person from the present $5.45 million per person; an increase in the top rate from 40 percent to 45 percent; and capping the charitable deduction at 28 percent, even for people in a higher individual tax bracket.

Clinton plans to funnel many of these tax dollars into an aggressive form of industrial policy that gives public officials under her guidance the power to decide which businesses in which locations—chiefly inner-cities and depressed neighborhoods—will move to the head of the queue. In addition, she wants to spend more on infrastructure, but has said very little about how to insulate essential improvements and repairs from political intrigue. Clinton’s fatal conceit is that she will be able to manipulate the political levers to give targeted benefits to her preferred constituents, without reducing overall levels of growth.

But her plan will crater. The selective government interventions that she proposes will perversely distort key private decisions on consumption and investment. In a hypothetical tax-free world, investment and consumption decisions are made by individuals seeking out the highest rate of return for their various efforts. At the same time, there is always the impulse for charitable behavior among those individuals—whether to help the poor or to provide educational, artistic, or medical benefits to the community. In general, a legal system that enforces contracts, curtails aggression, and restrains monopolies and cartels will have resources flow to their best use. Secure property rights and voluntary exchange are the foundations for any sound social policy. Within this framework, private actors can establish through repeated interactions the correct relative prices for the goods and services needed for both production and consumption.

Obviously, this ideal system of private property and voluntary exchange does not run on vapors. Someone has to enforce the rights and duties it creates, which requires the collection of tax revenues in order to discharge these key government functions. Ideally, that system of taxation should have two constraints, one distributional and the other aggregate. First, a sound system of taxation should not change the relative prices attached to various alternatives from what they were in a tax-free world. If A prefers X to Y in that hypothetical tax-free world, A should prefer X to Y in a world with taxation. Otherwise, the collective intervention will subsidize inefficient choices. Second, the aggregate levels of expenditure should be set to produce outcomes that give back to each citizen a package of goods and services worth more than the taxes he or she pays to create them. Over-taxation chokes off productive private labor.

There is no perfect way to reach these dual objectives. But in our imperfect world, classical liberal theory offers a good way forward. It favors flat taxes on a broad base of income, or more preferably consumption, to achieve these two ends. The flat tax reduces political discretion in determining who should be taxed, and since no one is exempt from its reach, it gives each person an incentive to search for a uniform tax rate that maximizes the net benefits from funding all public goods. That tax reduces the factional gains from forming political blocs, and it cuts down on the uncertainty that private parties face when making long-term investment decisions.

On the expenditure side, a similar degree of stabilization is achieved by funding public, i.e. nonexclusive, goods that are shared by all alike. This is why the original Constitution limited the objects of taxation to paying the public debt, providing for the common defense, and securing the general welfare of the United States—which excluded all transfer payments between private parties. By securing a stable framework, this system gives the poorest members of society greater opportunities to find gainful employment and other opportunities—at least if not blocked by entry restrictions, including minimum wage laws and strong unions. The challenge of redistribution, intended to redress inequalities in wealth, is not fully addressed by these devices. But charitable deductions create an implicit public subsidy in which a diverse set of private donors, not government officials, make the key policy and management decisions.

The Clinton program rests on an exaggerated sense of the good that government can do. But her plan will backfire in a number of ways. First, by raising the capital gains rate she reduces capital mobility and thus locks people into inferior investments. The higher rates will depress the collection of the capital gains tax, by encouraging people to delay unloading bad investments. Second, by imposing the higher taxation rates on the richest individuals, her program further tamps down on investments made by people whose investment and management skills can best create new jobs for ordinary people. She wrongly thinks that governments can expand opportunities, when its level of entrepreneurial expertise is negligible at best. Unfortunately, we can expect her program to fail just as other government programs have in everything from solar energy to neighborhood cooperatives. Government officials work best when they have focused goals of the type that define a system of limited government. Going further by managing private businesses exponentially increases the risk of cronyism and other forms of misbehavior.

Precisely that will happen, moreover, with her misguided proposal to eliminate capital gains taxation for money invested into depressed areas, which is likely to reproduce the colossal waste that came from overspending in places like Baltimore, where massive federal investment has done nothing to stop crime or the population exodus. The right strategy is the exact opposite: encourage people to move to safer and more prosperous communities, which might jolt the political and civic leaders of places like Baltimore to get off life support. Programs that reward failure only create more failure. No private party would spend its money on such a fruitless mission—and the federal government should not create a useless bureaucracy to decide which supplicants should receive what forms of aid. Nor should it give tax breaks that favor unproductive investments over sensible ones.

Today, ordinary workers are leaving their home states in search of jobs and a better standard of living. They are moving to places like Texas where taxes are lower and labor markets are freer. But these business-friendly environments—and the people living and working there—will suffer if Clinton’s plan to strengthen unions and raise minimum wages is implemented on a national scale.

Similarly, her proposal to cap charitable deductions at 28 percent operates as a tax not only on donors, but also on the individuals who receive these benefits in relatively efficient form. The net effect is to reduce the flow of private support for charitable activities, which will increase the scope of badly run public programs. It would be a national tragedy to reduce the amount of private sharing of wealth. It is not the case that only the rich get hurt by the limitation on charitable deductions. After all, if the wealthy stop making gifts, that improves their own financial position. The real harm, then, is to the recipients of charity, who will receive less. Virtually every charitable entity in the United States should be up in arms at this crude effort to tax them out of existence.

It is equally unwise to impose an alternative minimum tax. That program is only necessary in order to backstop our progressive system of taxation, which is riddled with loopholes. But rather than add complexity, we should simplify and rationalize our basic tax system in ways that make a back-up tax unnecessary. In this regard, taxing capital gains is often a mistake. Even if we do not move to a consumption tax, it makes sense to exempt from immediate taxation receipts that are reinvested in other capital assets.

By this standard, the estate tax is the worst of all possible taxes, because it is a lump sum tax on wealth that distorts decisions on investments and consumption. There is no equity in imposing this tax on those people who die at 60, while deferring the same tax for 30 years for those who die at 90, especially when they may have consumed or given away their wealth tax-free in the interim. The standard argument in favor of the consumption tax is that it reduces the excess tax on savings, in ways that improve intertemporal wealth management. Raising the tax and reducing the exemption will have negative effects on resource management that will reduce taxes that could otherwise be received on dividends and salaries. Yet nothing in the Clinton plan addresses the interplay between tax systems.

There is little doubt that the middle class has suffered from a regime of slow growth. But Clinton’s crude efforts to use new targeted tax revenues to fund industrial policy will only complicate the tax code while frustrating private activities that could grow the economy. A far better approach toward growth is to reduce the barriers to entry in industry after industry. The combination of lower administrative costs, higher legal certainty, and greater private initiative will work far better than any set of progressive gimmicks with their perverse incentives and heightened political intrigue.

*Considered one of the most influential thinkers in legal academia, Richard Epstein is known for his research and writings on a broad range of constitutional, economic, historical, and philosophical subjects.

Europe Gets Apple Right

Richard Epstein*

 Richard Epstein

Richard Epstein

On August 30, the European Commission issued a blockbuster ruling that required Ireland to recoup, with interest, the €13 billion in tax benefits that it has granted Apple since 1991. The tax breaks, the commission held, violated the European Union’s “state aid rules” that no company should be given preferential treatment under the law.

The decision elicited a strong reaction from Apple CEO Tim Cook who denounced it as “total political crap.” He was not alone in this belief. Holman Jenkins, Jr., writing in The Wall Street Journal, for example, said the decision was motivated by the European Commission’s desire to impose “tax harmonization” on all EU members as a way of “defending Europe’s stagnant social model,” which could not generate any Amazons, Googles, or Facebooks on its own. The United States Treasury echoed the same theme in a white paper that anticipated the EC’s ruling. And now Ireland, backed by Apple and Treasury, has decided to appeal the EC decision to the European Courts. Who is right, and why?

My initial judgment—always subject to revision on the strength of additional information—is that the EC was correct in its decision. In making this assessment, I admit that I harbor a deep suspicion of the EC in its multiple roles. In general, there is much to the charge that the EC’s policies are prejudiced against American companies that do business in the EU. But it is one thing to start with a strong presumption, and another to put the pieces together in a prudent fashion.

The first query is whether an antitrust outfit like the EC should be making judgments about tax policy in the first place. In this instance, the answer comes from Article 107 of the Treaty on the Functioning of the European Union, which provides, with multiple exceptions not relevant here, that “any aid granted by a Member State or through State resources in any form whatsoever which distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods shall, in so far as it affects trade between Member States, be incompatible with the internal market.”

The internal market refers to the free flow of goods across national boundaries among EU members. In this connection at least, the EU operates more like an open trading union and less like the top-down Brussels establishment whose regulatory abuses strengthened the case for Brexit. Harmonization in the EU is always harmonization-up rather than harmonization-down. In contrast, Article 107 is directed toward the issuance of selective benefits to individual firms, and, as such, does not prevent any member state from setting its general tax rates as high or low as it wants, so long as it does so on a nondiscriminatory basis.

The EU’s general nondiscrimination policy allows for members to compete for new business by offering an attractive tax environment. Indeed, the EC only demanded that Ireland impose its generally low 12.5 percent corporate tax rate on the revenues that escaped taxation elsewhere in the EU or, indeed, even in the United States. There was no effort to require Ireland to raise its overall tax rates so as to reduce its competitive advantage.

At this point, the EC’s application of Article 107 is not some form of retroactive taxation that hits Ireland from behind. Instead, what the EC protested was the peculiar two-step process by which Ireland determined Apple’s total tax burdens. First, income from various sales around the EU were allocated to activities in Ireland, which may have short-changed taxing authorities in other EU states where Apple does business, by booking all sales elsewhere in the EU to Apple Sales International (ASI), an Irish subsidiary of Apple. Thereafter, Apple allocated huge portions of the income from ASI and Apple Operations Europe to a shadowy “head office” that was not located in any tax jurisdiction at all. The EC did not challenge the somewhat dicey first step. But it did take after the second. “In fact, this selective treatment allowed Apple to pay an effective corporate tax rate of 1 percent on its European profits in 2003 down to 0.005 per cent in 2014" (EC italics).

Of ASI’s €16 billion profit, only €50 million was subject to Irish tax. Unless these numbers are grievously in error, the EC’s conclusion seems pretty straightforward: “This selective tax treatment of Apple in Ireland is illegal under EU state aid rules, because it gives Apple a significant advantage over other businesses that are subject to the same national taxation rules.” Indeed, the “decision does not call into question Ireland's general tax system or its corporate tax rate,” which includes its 12.5 percent corporate tax rate. Nor does it require that taxes be paid in Ireland on gains that are reallocated to the country of sale or are repatriated to the United States. Critics like the Journal’s Jenkins would do well to read the ruling before they mischaracterize its results.

Nor can the ruling be challenged on the ground that the larger concern with tax parity is deeply misplaced. Take the parallel practice in the United States. Individual states set their business income taxes, and it is important to encourage tax competition between jurisdictions to place downward pressure on taxation, without allowing for individual states to game the system for short-term advantage. Thus in Moorman Manufacturing Co. v. Bair (1978), the U.S. Supreme Court held that it did not offend the Due Process Clause of the Fourteenth Amendment for Iowa to use a single factor—sales within the state—instead of the standard formula that weighted property, payroll, and sales within the states equally. The Court held that each state was free to deviate from the norm in making its own decisions.

Unfortunately, Moorman suffers from two serious drawbacks that relate to the Apple-in-Ireland controversy. First, the multiplicity of formulas obscures the direct comparison of rates across state lines, which imposes an informational barrier against tax reduction. Standardization of rates here serves the same function as the standardization of the annual percentage rate of interest in loan transactions. It makes shopping easier. Second, the flexibility is open to gaming in that states can target, as in Moorman, an out-of-state corporation by picking a formula that maximizes domestic revenue—in this instance, sales within states. In my view, the standardization of the well-nigh universal tripartite formula should be done through the Due Process Clause. But if not, then it is surely allowed by treaty as in the EU case.

Nonetheless, figures on the left seem every bit as confused about the implications of the Apple decision as those on the right. Consider Massachusetts Senator Elizabeth Warren’s recent New York Times op-ed. Warren draws exactly the wrong inference from the EC ruling when she claims that the best way for the United States to fix its broken tax system is to increase the tax revenues collected from big corporations, so that they end up paying some “fair share,” which, inevitably, is some amount more than what they pay now. The point contradicts the EC’s observation that nothing in its Apple-in-Ireland decision requires individual nations to adopt either high or low rates. Following Warren’s ruinous proposal will make large American corporations less competitive in global markets, which, in the long run, will reduce the amount of wealth that they can create in the United States, much of which can be taxed as higher wages and dividends. High taxes will also reduce the likelihood that start-ups will take root in the United States.

Besides, U.S. corporations already pay high taxes. As the Tax Foundation reports, “The United States has the third highest general top marginal corporate income tax rate in the world at 39.1 percent, exceeded only by Chad and the United Arab Emirates.” The United States also has the highest corporate income tax rate among the 34 industrialized nations of the Organization for Economic Cooperation and Development (OECD). It is time to reduce taxes in the United States so that major corporations can invest at home and become competitive globally.

Warren also insists that our tax code “should favor jobs and businesses at home—period.” This destructive form of protectionism could easily trigger an international trade war, while blocking American businesses from buying inputs from overseas in order to make themselves fitter for international competition. Killing off international trade hurts both the United States and its trading partners. Warren’s rationale is the exact opposite of that behind the EC decision, which seeks to create a level playing field inside the EU.

Additionally, Warren wants to create special enclaves for small businesses, which cannot take advantage of many of the tax tricks that are available to large corporations. But this suggestion is only half right. A sensible regime of taxation, like that embodied in the Apple decision, removes the tricks that create hidden subsidies. Her proposals for special goodies to small businesses will be an open invitation to create a second set of subsidies that can only distort business decisions in the United States, as it has done in energy markets.

The level of new business formation in the United States has been in rapid decline over the past eight years. But that rate of decline will continue apace whether or not small businesses get tax breaks. The real culprit is the ever-greater strangulation of local businesses as a result of misguided reforms in labor and capital markets that Warren routinely champions. An old Milton Friedman quip exposes the central flaw in Warren’s approach: An oarsman finds that there is a hole in the front of his boat, and his solution is to bash a hole in the back of the boat to even things out. It is just that perverse logic that fuels the Warrens of this world.

At its root, the Apple decision rests on premises far removed from Warren’s progressivism. It makes a classical liberal argument in favor of free trade across national boundaries. Though the EC often acts as a statist institution, it has made a sound economic decision by taking on an American icon that deserves to have its wings clipped.

*Considered one of the most influential thinkers in legal academia, Richard Epstein is known for his research and writings on a broad range of constitutional, economic, historical, and philosophical subjects.

New York’s Self-Inflicted Housing Crunch

Richard Epstein*

 Richard Epstein

Richard Epstein

People who live in New York City know that its frenetic pace can induce anxiety. In part, that angst stems from living in a highly congested city brimming with energy. But there’s also the anxiety from New York’s crazy-quilt pattern of land use regulation, which a New York Times editorial recently labeled “High-Rise Anxiety.” The unease stems from the many overlapping restrictions both on new construction and the utilization of existing facilities. These regulations have created a two-tier system in which some prosper handsomely while others scramble to make ends meet.

The current housing crunch in New York, and in other cities like San Francisco, is attributable to the complex set of prohibitions and subsidies that shape these markets. Under the modern administrative law system, private property rights are of little consequence when a developer is trying to build. What matters ultimately is that all of the relevant “stakeholders” have a right to participate in an endless negotiation process before anything gets done. The de facto presumption is against changes in both new and existing housing markets. The building permit is the unit of political currency, and each requires enormous inside connections, patience, and luck to obtain. It can take developers many years to obtain their precious permits, if they get them at all.

This permit impasse stems largely from the progressive view of administrative law. Its initial proposition is that markets fail for two reasons: first, they allow for exploitation of vulnerable tenants. Second, they ignore external effects on third parties.

As to the first, the alleged villains are unscrupulous landlords, whose drive for higher rents must be countered by a rent stabilization program to protect sitting tenants. The New York program was first put into place in 1969, where it was sold as “emergency legislation,” originally for three-year terms, routinely renewed. (The latest renewal was for four years.) The trigger to end rent stabilization is a vacancy rate of 5 percent or more, which will never happen for units that are priced below market rates. Hence rents are allowed to rise, if at all, only in accordance with an administrative rate formula tied to costs rather than to greater demand. The law thus leaves the landlord with all the downside in a weak rental market, while allowing tenants to not only pay in perpetuity only a fraction of market value for their units, but to be also protected from eviction at the end of the lease. At root, rent stabilization is a form of price controls on steroids.

By tying the price caps to the protection of sitting tenants, the law generates its own powerful local base of political support. If you could tweak the law so that the landlord that complies with the rent cap could select whatever tenant he wants at the expiration of an existing lease, then the entire system would collapse like a house of cards. Local tenants will not vote to ensure low rents for new arrivals. It is the territorial basis of this regulatory system that allows it to endure long after other price control systems, such as those for gasoline at the pump, bit the dust.

The second justification for regulation stems from the impact of new development on nearby communities. Everyone has a deep interest in whom their neighbors are and will be, and this is particularly true in New York, where population density puts people in close contact with one another. The city law puts current residents in a position of dominance, relative to their landlords, through the creation of an elaborate system of community development boards, officially described as follows:

Community boards are local representative bodies. There are 59 community boards throughout the City, and each one consists of up to 50 unsalaried members, half of whom are nominated by their district's City Council members. Board members are selected and appointed by the Borough Presidents from among active, involved people of each community and must reside, work, or have some other significant interest in the community.

These intensely local boards make sure that outsiders have to face an uphill battle to secure the needed permissions to build new projects, because these will always have some real, if often exaggerated, impact on nearby residents. It takes little imagination to see that the members of these boards will often have their own axes to grind, which explains why so many well-positioned people are keen to serve on these boards without compensation.

These boards are especially active in responding to gentrification, which does not benefit sitting tenants, even if it improves the overall position of the city. In responding to this issue, the New York Times supports Mayor Bill de Blasio’s “big idea” to rezone neighborhoods to require developers to include a certain number of affordable housing units in a new project, while strengthening the rent stabilization law. This two-prong approach is risky. Such affordable housing provisions have mushroomed all throughout New York, having received a constitutional blessing in state courts.

One way to fund an affordable housing program is through direct public subsidies, given to eligible tenants who qualify for assistance. The relative advantage of this system, as the late Justice Scalia recognized in Pennell v. San Jose (1988), is that it puts the public subsidy on-budget, where democratic processes can determine both its size and the preferred beneficiaries. But voters resist these subsidies for just this reason: powerful political forces will vie to direct the largest share of the subsidies to themselves.

Indeed, it was just these political forces that recently undid New York’s long standing 421-a program that allowed for the construction of affordable housing, subsidized by a complex system of tax-exemptions, but applicable only in poorer neighborhoods. That program was not renewed in January 2016 because Governor Andrew Cuomo refused to back it unless it required developers to pay construction workers, yet another stakeholder, union-level wages that would have raised, by one estimate, construction costs by 13 percent—or roughly $45,000 per unit.

The tragedy of this debate is that both Mayor de Blasio and Governor Cuomo are so imbued with the progressive spirit that they do not realize that the true villains here are their own restrictive land use programs that have long hobbled New York’s housing markets. Their common position is misguided even by progressive standards. Rent stabilization laws necessarily distort prices in local housing markets by giving sitting tenants perverse incentives to stay in their current housing units. It is just too costly to give up a current subsidy on a large unit to pay higher market rates on an unregulated smaller unit elsewhere in town. So the rigidity in ownership leads to a systematic underutilization of existing housing that chews up valuable public resources while simultaneously reducing the city’s tax base. Any responsible social welfare calculation has to take into account the countless numbers of individuals, in and out of New York, whose own opportunities are systematically constrained by the current rules.

A similar critique is properly directed at the extensive veto rights given to neighbors. The common law, from its earliest days, long recognized that special rules were needed to deal with harmful interactions with neighbors. The judge-made nuisance law protected people against pollution, noise, vibration, and other similar hazards. All of these restrictions add to the overall value of land by stopping antisocial forms of behavior. The easy verification of this proposition comes from a close look at the various planned developments that include voluntary covenants that protect against these asocial behaviors. No one, regardless of wealth or political persuasion, advocates a relaxation of these guidelines, or protests the efforts of local governments to block activities that threaten the health and safety of a neighborhood. Nor does anyone think that a local government goes beyond its proper function by making sure that current and future infrastructure, on such matters as public utilities and street access, can support construction or expansion.

Most strikingly, none of the current land use disputes are about these issues. Instead, the argument here is that the class of recognized externalities that call for government regulation goes far beyond these limited cases, to include rules that allow one set of neighbors to decide the wealth and ethnicity of their potential neighbors. The difference in the two approaches is astounding. Nuisance disputes are rarities in today’s cities for the simple reason that no one wants to rent or buy in a pig sty. But when the composition of the community—by age, race, income, disability, or family status—becomes grist for the public mills, externalities are always everywhere, even for new construction projects built on vacant land.

The situation gets more convoluted when new developments have to manage issues like views and light, landmark status, and neighborhood character, which are always fair game for public deliberation. The current legal worldview starts from the premise that renting or owning in a given community gives an expanded entitlement to block or limit the activities of other people, without having to pay these latecomers any compensation for the loss or curtailment of their own property rights. The correct solution is this: the government can condemn these development rights for their fair market value. But don’t hold your breath.

In shifting away from the common law approach, the law does not solve the problem of externalities. It magnifies it. The older common law rules wisely recognized that the “harm principle” is hopelessly broad as stated. That principle, as announced by John Stuart Mill in On Liberty, holds: “That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his ill, is to prevent harm to others.” Virtually every human action produces some effects that will leave someone worse off, especially in dense urban settings. Hence, the only way to make this plausible-sounding principle work is by limiting its application, as is done in the law of nuisance. The public deliberations of large classes of harms, including the blocking of views, must be treated as nonactionable, that is, outside the scope of legal protection on the simple ground that the overall social welfare is better advanced if these ubiquitous losses are systematically ignored.

The willingness to use the narrower definition of harm—one that deals with force, fraud, and monopoly—was never universally observed prior to the rise of the modern system of land use regulation. But legislatures, courts, and the public gave it far more respect than it receives today. Hence this grim warning: so long as every externality counts in administrative proceedings, all sides in the current land use disputes will contribute to high levels of anxiety that are a necessary consequence of the modern progressive state.

*Considered one of the most influential thinkers in legal academia, Richard Epstein is known for his research and writings on a broad range of constitutional, economic, historical, and philosophical subjects.

Graduate Students as Protected “Employees”

Richard Epstein*

 Richard Epstein

Richard Epstein

Last week, the National Labor Relations Board held that the graduate students of Columbia University who work as teaching assistants, including any research assistants “engaged in research funded by external grants,” are statutory employees protected under the National Labor Relations Act, and thus entitled to join an elected union of their own choosing. The three-member Democratic majority held in Trustees of Columbia University v. Graduate Workers of Columbia-GWC that graduate students were employees under Section 2(3) of the NLRA. This section provides, most unhelpfully, “the term ‘employee’ shall include any employee,” with exceptions irrelevant to the issue at hand.

The Board’s decision was notable in part because a long list of research universities, led by Yale University, had filed a strong amicus curiae brief, warning against the undesirable consequences that could follow if the Board overruled its 2004 decision involving Brown University that came out the other way because “the services being rendered are predominantly academic rather than economic in nature.” These include coursework, individual research, and teaching under the close supervision of their professors, as part of an integrated program leading to an advanced degree.

The universities’ position was strongly resisted in an amicus curiae brief submitted on behalf of the American Association of University Professors making several claims and factual assertions: (1) that the change in status was no big deal; (2) that NYU had entered into a voluntary agreement with a branch of the UAW that was working well; and (3) that over 35,000 graduate students in public universities were organized outside the reach of the NLRA. The rejoinder to this assertion was twofold. The universities noted that the NYU agreement has had its ups and downs, and that public universities are very different institutions than private ones. They also urged that it was dangerous to upset an established tradition by fiat, when not a single one of these universities has ever dealt with a single unionized graduate student. At present, no one has any strong evidence either way.

There is a rich irony that the great research universities, so politically liberal, would resist graduate unions in their own backyard when they would never question the desirability of the NLRA in business contexts. Indeed, the greatest difficulty for the universities is that they have to explain why they need an exemption from a general rule in the first place.

In my mind, they should not have to face that difficulty, for there is ample reason to doubt that the NLRA should apply to any business whatsoever. An elaborate, often bitter, election procedure allows the union that captures a majority of member votes to become the exclusive bargaining agent of all employees, dissenters including. The law then requires that the two sides bargain in good faith to reach a collective agreement. The collective bargaining procedures are cumbersome and costly. They often generate suspicion and distrust and require high levels of formality to make them work. Once in place, they are often disruptive of sensible business relationships. If those negotiations break down, unions may strike, and employers may lock out workers. The adverse effects on third parties, who are deprived of key services, are chalked up as simple “incidental” losses that the law necessarily ignores. This is a high price to pay to give unions a legal monopoly against the unionized firm.

It is also critical not to forget the uncertainty that comes from unionization. On the one side, firms develop consistent anti-union strategies long before any union arrives. Once unions get in place, it is very difficult to predict how relations will develop. Unions typically have to choose between two opposite strategies, in part in response to the strategies that resisted their recognition. Some unions prefer to reach quick deals with employers that give them a large share of the pie without disrupting the firm’s relationships with its customer base. But other unions, probably a minority, prefer to take a high risk and high return strategy, in which they back strong demands on wages and conditions by their willingness to strike. It is virtually impossible to predict which strategy will dominate in any case, which means that unionization injects a wild card that adds a layer of uncertainty that nonunionized firms don’t face.

Given the high stakes of unionization, it is deeply problematic that the NLRA gives so little guidance as to which groups are covered. In Columbia, the NLRB majority applied “the common law” definition of employee, which includes the graduate students to whom the university pays a wage for the performance of particular tasks under its direction. But the common law never had to face the question of sorting out dual relationships between instruction and employment, about which the NLRA says nothing. And private parties in a common law regime could always modify and tailor their business relationship in whatever way they saw fit in order to advance their mutual benefit.

It is therefore telling that the elite research universities, who know their own businesses, oppose the change. Hence, it is proper to ask the question of whether the imposition of a union arrangement for employment will impair the educational mission of the university. The answer is yes. Yale University President Peter Salovey observed that “I have long been concerned that this relationship would become less productive and rewarding under a formal collective bargaining regime, in which professors would be ‘supervisors’ of their graduate student ‘employees.’”

Of course, the question is ultimately empirical and, on that issue, the Board’s majority took the position of the American Association of University Professors that the great universities could take these problems in stride, just like NYU has done. Not only is the question an empirical one, but generalizations are difficult to make because collective bargaining agreements go off in so many different directions. The majority of the NLRB was not overly concerned with these issues because of the success of unionization at NYU and public universities. It is surely the case, therefore, that unionization does not spell the immediate death of the university. But the NLRB’s ruling raises the further question of whether the deal will hold firm in the long run, given that unanticipated events could lead to work stoppages, loss of morale, or bad publicity that could damage relationships with donors or students.

On this score, it is instructive to look at how the collective bargaining agreement works at NYU. (Note that the law school, where I teach, is not covered by the agreement.) The contract is well drafted and it does not include all the graduate students that are covered in the NLRB decision. In particular, it does not cover the Medical or Business school, and, most importantly, it does not cover “research assistants at Polytechnic Institute, [and] research assistants in the Biology, Chemistry, Neural Science, Physics, Mathematics, Computer Science and Psychology departments.” It then sets out a salary scale for the covered graduate students that started at $26,200 in 2015 with modest increments over the next four years. In addition, the agreement specifies an elaborate grievance procedure that allows individual union members to challenge within limits their course requirements.

So where can things go wrong? Here the greatest peril does not come from the implementation of the agreement by NYU and the UAW. Instead, it comes from the Fair Labor Standards Act, which regulates the standard for wages and hours of all employees. The Department of Labor issued a general ruling that any worker who earns less than $913 per week or $47,476 annually for a full-year worker—roughly double its previous level—is eligible for overtime compensation on an hourly basis. This rule applies to all employees whether or not they are unionized, and it is not waivable by the workers who are protected.

The FLSA’s definition of an employee is no better than that in the NLRA: “the term ‘employee’ means any individual employed by an employer.” There is no reason to think that the Department of Labor will shrink from using the same definition that was adopted by the NLRB, instead of taking its cue from the NYU collective bargaining agreement that exempted research assistants from its scope. After all, the common law test could still be applied even if the costs of its administration skyrocket in the new context.

The news is very grim. As applied to the university context, the FLSA forces both the union and the university to abandon their simple salary scale for unionized workers, in favor of a verifiable procedure to separate their teaching from their student hours, which could prove difficult, especially when overtime pay is at issue. None of this bookkeeping and monitoring is necessary under the sensible salary arrangement in the NYU contract. In addition, the NLRB rule applies to all research assistants, so in all likelihood they too will be covered by the FLSA rule. But, once again, no one quite knows how to separate out the time that a research assistant spends on his or her own work and on that of the employer. Nor are government and private grants sufficiently flexible to provide the needed overtime support if it turns out that these students spent far more than 40 hours per week in their laboratories, just like their professors.

All too often, employment decrees are handed down on high by regulators who look only at their own bailiwick but then ignore the consequences of their handiwork. The FLSA rule is scheduled to go into effect on December 1, 2016. At this point, every university and research laboratory in the land has to scramble to make sense of the new rules and figure out where to get the additional funds to pay the extra salaries and institute compliance systems to ward off the inevitable lawsuits that this massive uncertainty invites. And the Department of Labor, of course, does not address the serious operational difficulties created by its regulations.

There is an old adage that applies here: it takes enormous work to build up institutions with genuine academic excellence and distinction, but it takes only a few boneheaded rulings to send them crashing down. The Department of Labor should postpone and modify its new regulations. If it does not, Congress should do something to protect our great research institutions.

*Considered one of the most influential thinkers in legal academia, Richard Epstein is known for his research and writings on a broad range of constitutional, economic, historical, and philosophical subjects.

Our Regulator-In-Chief

Richard Epstein*

 Richard Epstein

Richard Epstein

Now that we are in the final lap of President Barack Obama’s presidency, the debate has begun over his historical legacy. The New York Times is contributing to that debate with a six-part series assessing his presidency called “The Obama Era.” The first article in that series, “Once Skeptical of Executive power, Obama Came to Embrace It,” argues that Obama is, in the journalists’ words, our “Regulator in Chief,” having issued about 50 percent more major orders than his predecessor George W. Bush. Though the article uncritically embraces Obama’s statist policies, the President’s major initiatives on labor markets, environmental protection, drugs, health care, and labor markets have been both more far-reaching and socially destructive than those of his predecessor.

What spurs the president to action is his moral certitude. He knows what is best for the country. To be sure, he disclaims any intention to regulate “just for the sake of regulating.” But there are, he believes, many good reasons to regulate. As he says, “there are some things like making sure we’ve got clean air and clean water, making sure that folks have health insurance, making sure that worker safety is a priority—that, I do think, is part of our overall obligation.”

Unfortunately, his bold statement reveals a deep misunderstanding of policy and the role of regulations in improving society. First, the mission of “making sure” that the right outcomes occur is beyond the power of any regulator, who has limited resources to face a multitude of potential problems. Establishing a set of coherent priorities requires an awareness of the necessary trade-offs that have to be made along the way.

Sometimes, for example, it is possible to develop clear rules, like traffic rules for public highways. But that approach misses the point in dealing with water or air pollution. The question here is not a binary one of whether or not we have clean air or water. The question is just how clean the air and water ought to be in a sensible system of regulation. Obama’s use of absolutes carries with it the implicit notion that we should push this goal to its natural limit. But the better approach goes first after low-hanging fruit, without trying to drive pollution levels close to zero. Sooner or later, often sooner, the costs at the margin start to outstrip the benefits, at which point the rational approach is to pull back.

Nonetheless, the Obama administration works the opposite way, by making extravagant assumptions in its cost/benefit analysis of regulations. For the President, the preferred strategy is to increase the estimates of benefits and to lower the costs of compliance, at which point the unthinkable becomes the inevitable. The writers of the New York Times piece note with evident approval that the President uses relatively high estimates of the “social cost of carbon” to justify very stringent regulations on power plant emissions. It is just that logic which led the Obama administration to use similar calculations for the “social cost of methane” to justify sharp restrictions for oil and gas drilling that go over the top, as well demonstrated by policy analystPaul Driessen writing for The Committee for a Constructive Tomorrow.

The EPA starts with the assumption that US releases will have some measurable impact on the environment. But the initial step should surely be to put the United States into global perspective where 17% of pollution “is from energy production and use; 26% comes from agriculture, landfills and sewage; and the remaining 57% is from natural sources.” The American contribution to global methane production is about 9 percent, of which about 30 percent comes from oil and gas drilling. The industry, moreover, has made substantial progress in reducing emissions from fracking, thereby reducing the need for regulation. Methane is, of course, just another word for natural gas, which is itself a valuable fuel, so strong incentives already exist for potential polluters to capture it.

A regulation cannot reduce the total level of emissions to zero. So the question is, why bother when oil and gas operations in the United States produce only 0.000004% of atmospheric methane? At most we can expect only a miniscule reduction of global temperature increases on the unlikely presumption that regulations could cut methane emissions in half, assuming that other distortions are not introduced into the system.

This same frame of mind occurs over and over again. To give but one other example, the mandate of the Food and Drug Administration is to make sure that only safe and effective medicines reach the market. Here, the case for regulation is even weaker than it is for pollution because medicines are not forced down the throats of unwitting patients, but are taken willingly under physician supervision. The FDA may have its doubts about the prescribing practices of physicians, who, as required by good medical practice, routinely prescribe off-label uses of approved drugs for patients—that is those uses not approved by the FDA. Nonetheless, the FDA’s constant refrain that detailed clinical trials are needed to protect unwitting patients from dangerous products sounds hollow. Worse still, the FDA uses an antiquated risk/reward approach that no sane person would apply in his or her own life. People in need want to know only whether they are better off taking a new and risky therapy than not. They do not care about the inability to document the safety or effectiveness of the drug except to the extent that it bears on their choice. The FDA clings to the outdated notion that long-term clinical trials supply the gold standard for evaluating new and controversial therapies.

Its overzealous approach has cost many lives and created many tragic situations, including the current impasse where the FDA has denied approval for drugs dealing with Duchenne’s muscular dystrophy, by slow-walking the drug eteplirsen through its endless approval process. Yet the cost/benefit analysis is a no-brainer. Without the drug, the boys who are diagnosed with the disease will suffer serious paralysis leading to death. With it, the production of the missing protein, dystrophin, gives them a chance of leading a more normal and healthy life. There is no downside. Yet the President has not issued a single executive order that has broken the FDA stranglehold one new medicines. Why? Because he does not fully consider the risks of excessive regulations and the problems those regulations create, including death. Sadly, none of this is mentioned in the New York Times piece.

Presidential blindness also extends to the health care system. What does it mean to insist that “folks have health insurance”? Universal insurance is a pipe dream, so the question is how best to improve the numbers. Removing endless mandates is a good first step. But the Obamacare health care exchanges are burdened with additional requirements that have led to widespread and repeated accounts of their failure. Yet there was not a word of this when Obama lauded the “progress” in health care brought about by his legislation in a recent “special communication” in JAMA, a prestigious medical journal. Nor did he address the adverse selection and moral hazard problems that are breaking the system. More mandates spell more trouble. Only deregulation can open nationwide markets to low-priced care. But for the man who wields the executive pen, the failure to make the exchanges work will be regarded as proof-positive that some government option is needed to fill the gap.

Finally, the President’s orders have done nothing good for the workplace. Yet the Times fails to critically evaluate the many initiatives of the Obama administration in the areas of wages and hour regulation. Instead, it lauds the increase in overtime eligibility brought about by changes in the wages and hour laws, without asking once how these rules will affect established patterns of business in such key areas as the gig economy, tech startups, university laboratories, and ordinary business. In some industries, the hour is a meaningless measure of productivity. In others, increasing the number of workers eligible for worker’s compensation requires many firms to reengineer key parts of their business. The implicit assumption of the President—and the Times—is that more regulation is better, without taking into account the administrative costs needed to put the new schemes into place, or the increased efforts of compliance.

Similar objections apply to the effort of the President to increase by executive order the minimum wage paid to employees of government contractors. It sounds like a humane policy in theory, but it’s important to ask if these high minimum wages will do good, given the evident risk that they will drive up unemployment, especially in teenage and low skill markets. The Times cites the claim of government economist Betsey Stevenson that higher minimum wages will reduce turnover and thus improve overall production. Then it adds, anecdotally, that Noble Prize–winning economist George Akerlof and his wife, Federal Reserve Chairwoman Janet Yellen, found that they got better babysitting care when they paid a premium over market.

But these time-worn arguments get matters exactly backwards. If higher wages will increase productivity, as they sometimes do, firm managers will not miss the point and will increase wages themselves. The correct government response therefore is to leave matters as they are, because no one in government knows on a firm-specific basis that a $15.00 minimum wage will improve workplace performance. Indeed, if the minimum wage is set too high, the present generation of parents would be less likely to pay their babysitters those premium wages once the base is artificially raised. It is just astounding that major economists concoct dreamy policies that are based on the premise that omniscient government officials are needed to correct the assumptions of the fools that populate ordinary businesses.

The damage done by each of these various initiatives helps explain the persistent anemic growth rates in the American economy. We need a president who has the humility to question his or her own assumptions. Whether we will get one seems highly unlikely given the depressing performance of both leading candidates.

*Considered one of the most influential thinkers in legal academia, Richard Epstein is known for his research and writings on a broad range of constitutional, economic, historical, and philosophical subjects.

The Blue State Model Has Failed

Richard Epstein*

 Richard Epstein

Richard Epstein

The defining economic truth of the last decade has been the want of sustained growth. Progressives and classical liberals agree that economic growth is a good thing, but they differ profoundly in how to best to achieve it. The only way to spur growth is to undo the structural barriers to gains from trade by pruning the law books of taxes and regulations that block these transactions in the futile effort to achieve redistribution. The combination of lower administrative costs, greater legal certainty, and improved private returns fueledAmerican growth in earlier times, and will revive it today.

Evidently, this message has not registered with progressive thinkers Jacob Hacker and Paul Pierson, professors at Yale and Berkeley respectively. In their New York Times column, “The Path to Prosperity Is Blue,” they criticize the Republican obsession to “cut and extract.” They deride that position for claiming, “Cut taxes and business regulations, including pesky restrictions on the extraction of natural resources, and the economy will boom.”

But this caricature displays confusion about many basic economic and political matters. The first is the appropriate role of regulation. Regulating extractive industries is always a complicated story, given the need to control against the pollution that can flow from the extraction and use of any raw materials. But the dangers in question are not confined only to coal and natural gas—they also include risks from such “clean” sources like solar and wind energy whose supposedly pollution-free technology can still incinerate birds or hack them to bits. The correct recipe for growth in extraction industries starts with increasing total useful output per unit of pollution, which is best achieved by combining effective controls on the demand side with controls directed toward limiting pollution and kindred ills on the supply side. “Keep it in the ground” does neither.

Hacker and Pierson are equally misguided on taxation. They make the argument that blue states dominate in all key areas, such as median household income, life expectancy and birth, high taxation of the top one percent, patent rates, and bachelor degrees. They attribute this to the amount of money that these states are prepared to spend on education in order to provide the human capital needed for general expansion. Sure, no one can quibble with the need for human capital formation. But that is a good reason to attack the public school monopoly by encouraging charter schools that can supply a better education at a fraction of the cost.  Hacker and Pierson, though, believe that any such declines in expenditures should be treated with suspicion, for they care more about how much money is spent than about how well it is spent. The success or failure of any education system, public or private, depends on injecting competition into it.

Hacker and Pierson make the methodological mistake of dwelling on static figures, like overall education and wealth levels, instead of trying to identify measures of economic growth. In particular, they take issue with Stephen Moore, one of Donald Trump’s economic advisors, for looking to measures such as “job growth or a state economic size” as indices of economic health. Their triumphant rebuttal of Moore’s approach is to claim that he should be an unabashed devotee of India because its huge economy creates millions of jobs each year.

Yet absolute size is exactly what growth measures should ignore. A better measure of a state’s prosperity is population changes—or how people vote with their feet. Do they move into a state or do they move away from it? This is the best objective indicator of the relative health of rival states.  By Hacker and Pierson’s logic, the advantages that the blue states have in terms of education, for example, should lure people into them. But as it turns out, the migration is in the opposite direction—to states like Texas, which have friendly business climates, and away from progressive bastions like New York. Just compare the changes in electoral votes in the two states to get a sense of the relative migration: In 1950, New York had 45 and Texas had 24, while in 2010, New York had 29 and Texas had 38.

Countless anecdotes illustrate the basic difficulty with the blue-growth thesis. Take Vermont, known not only for Bernie Sanders, but also for its string of ill-conceivable left-wing initiatives. Vermont has had virtually no growth in population during the last five years. But as journalist Geoffrey Norman has pointed out, the state’s high income and educational level did not insulate it from the fiscal reversals of its unaffordable single-payer program for medical services, which the Democrats are now flirting with at the national level in the wake ofthe breakdown in the health care exchanges under the Affordable Care Act. When one sees, as he reports, more “for sale” signs than political signs, it is a tacit admission that many people think that exit is the best option for a state system beyond repair. The very rich, especially rich retirees, may stay in the state, but ordinary people seeking job and business opportunities will leave in increasing numbers. Ironically, their exodus could increase average income within blue states and reduce it elsewhere—and the Hacker/Pierson measures ignore this effect.

A similar tale of woe applies to blue Massachusetts, which has benefited mightily from the technology hub located around the great universities in the Boston area. But even in Massachusetts, you get what you pay for, and the state is now in the business of purchasing its version of gender equity at the expense of wealth. Last week, Massachusetts unanimously passed yet another variation of pay-equity statutes, signed by its Republican governor Charlie Baker. The legislation forbids employers from asking prospective hires their salary history while still allowing workers to freely talk about wages and other compensation among themselves.

Under standard economic models, this statute is a business absurdity, for it is widely agreed that imperfect information is an impediment to gains from trade. The lack of ability to get key information will have the unfortunate effect of slowing down job mobility for all workers, and it will lead to a new cycle of senseless regulations that will have to take into account the job applicant who wants to offer his or her salary history to the employer to substantiate a request for a higher wage.

So why do this? The explanation offered by Karyn Polito, Massachusetts’ Lieutenant Governor, is that the measure will help overcome the gender gap in employment under which women earn 82 percent of men in the state and 79 percent of men nationwide. But it is ridiculous for Polito or anyone else to defend this law as a pro-growth measure, let alone one that could grow the economy by the size of the supposed wage gap, or $2.1 trillion annually. At best the increased wages are a transfer payment that has no impact on growth. But the reality is likely to prove far worse. Employers respond to incentives. Some will reconfigure their workforces; others will contract their operations; and others will just shut down. The added administrative costs are pure dead-weight losses. Never judge a law by its intended consequences.

The rich irony, of course, is that the defenders of the Massachusetts law offer no coherent theory to explain why or how mandated ignorance can promote the stated goal of workplace parity. Just after the legislation was enacted, the Wall Street Journal ran yet another story about how sophisticated personnel managers at successful businesses like Google were “overhauling” their pay practices to eliminate any perceived gender discrimination in the workplace. And why not? The firm that does not adequately pay for services will lose its best workers to competitors that do. So Google has thrown a wrinkle into the analysis when it says, perhaps for strategic reasons, that it asks about salary history only as a way to figure out the salaries competitors pay. But suppose the company uses it for other purposes. Why assume that that hurts women? The net effect of the Massachusetts statute is to make it harder for these firms to set accurate salaries and benefits for employees.

This same story plays out over and over again. The regulation of labor markets is regarded as the path to growth in rich blue states that are determined to undermine their own competitive advantage. The harm done by excessive regulation, taxes, and public expenditures plays itself out time and again in liberal bastions like Massachusetts, Vermont, California, Connecticut, Illinois, and New York. But as conventional progressive wisdom spreads to Washington, its implications will be dire: Jobs will disappear and wages will fall. One common response is that all a business needs to survive is a level playing field. Wrong. If that level field has the wrong institutional arrangements, it magnifies error. We are not far from the day when we shall have to modify the sage remark of John F. Kennedy that a rising tide will raise all ships. A rising tide of taxation and regulation will sink all ships if the progressive vision of Hacker and Pierson takes hold at a national level.

*Considered one of the most influential thinkers in legal academia, Richard Epstein is known for his research and writings on a broad range of constitutional, economic, historical, and philosophical subjects.

The Poverty Of Progressivism

Richard Epstein*

 Richard Epstein

Richard Epstein

Political life is rich with contradictions. In her acceptance speech at the Democratic National Convention, presidential nominee Hillary Rodham Clinton insisted that the economic performance of the past eight years was “much stronger” than it was during the Bush years. More than fifteen million private-sector jobs were created under President Obama, she said; many more people are now on health insurance; and the automobile industry is booming. Her argument seemed to be that the Obama administration’s progressive policies led to this economic growth. But a closer look reveals a less rosy picture.         

The day after her speech, the Commerce Department reported that the slowest economic recovery since 1949 was getting slower still. Gross Domestic Product growth for the second quarter of 2016 was down to 1.2 percent. The cumulative growth rate during the years of the Obama administration was down to 2.1 percent. Consumer spending held up for the short run, but capital investment—a more reliable predictor of future economic growth—has fallen. So how can these disappointing figures be reconciled with interventionist progressive policies of the past seven and a half years?

The standard Democrat response is that the decline of the middle class is the source of our social and economic problems. But given the high levels of consumer demand, it is hard to argue that rising levels of inequality are to blame for our sluggish economy. Nonetheless, given their populist aversion to free markets, the Democrats propose to double down on existing policies: they want to move to a national $15-per-hour minimum wage, add paid family leave, increase the strength of public and private unions, and raise taxes on the rich—and then, presto, we shall reverse the steady decline in median household income, which has fallen from about $57,000 in 2008 to about $53,660 in 2016. But lest Republicans start pointing their fingers at the Democrats, the median household income reached its highest level of $58,000 in 2000 at the end of the Bill Clinton era. Household income also fell, but less precipitously, when George W. Bush was president.

Political campaigns are notable for their lack of reasoned argument, and the Clinton and Trump acceptance speeches were no exception. To understand their positions, it’s better to turn to the circle of advisors and the intellectual elites that back both parties. On this point, the sad truth is that Donald Trump’s major intellectual guide is himself, for he has been rightly deserted by the intellectual wing of the Republican party that has little or no affinity to a man who spurns pro-growth policies based on free trade and small government. The Democrats, by contrast, have no shortage of pundits to celebrate the cultural and economic contradictions of capitalism.

Representative of this trend is the largely misguided economic critique offered, in the Wall Street Journal no less, by Ruy Teixeira of the Center for American Politics, which is chock full of fatal errors of economic reasoning. His intellectual case is summarized in four propositions derived from Thomas Piketty’s well-known but highly flawed book, Capital in the Twenty-First Century. Teixeira’s exposé of the perils of unvarnished capitalism offers a causal explanation filled with missing links:

First, the basic dynamic of the system tends toward higher inequality. Second, this tendency makes economic growth less effective at raising living standards. Third, faster overall economic growth, even if unequally distributed, could potentially solve the problem. Except that, fourth, rising inequality slows down economic growth, rather than speeds it up.

There is no reason why capitalism (in contrast with crony capitalism) ought to tend toward inequality of wealth. Piketty starts with the basic assumption that the rate of capital growth is always greater than the overall growth in GDP, at which point the long-term dominance of capital becomes a mathematical necessity. One glaring weakness is his failure to note that much capital investment is in depreciable assets, so that capital accounts can move downward as easily as they can move upward. Under his view, labor should be virtually wiped out today, which ignores the simple point that huge portions of the upper one-percent derive their income from delivering high-skilled labor services—doctors, lawyers, bankers, developers—to the public at large. In addition, the huge fortunes acquired by present-day moguls—Bill Gates, Mark Zuckerberg, Jeff Bezos—may be represented in corporate shares, but much of that wealth derives from their early labor in some small garage or office.

Teixeira also fails to take into account the role of entry and exit into labor and capital markets. The first entrant with a new technology can reap billions for himself. Those gains come in part from undermining older and less efficient technologies, and thus act as a brake on any abnormally high returns garnered by current entrepreneurs and investors. Yet in the next phase of the cycle, new inventors and entrepreneurs will target those soft areas in the formerly new generation of incumbents and garner their own abnormally high rates of return. The only way to stay ahead of the curve is to keep on innovating. There is no iron law whereby initial success guarantees safety over the long term. Individuals and firms rightly exit markets when they can no longer compete. Inherited wealth tends to divide and shrink, not multiply and increase.

Nor is there any reason to believe that the innovations that generate high rates of return are less effective in raising the overall standard of living. As a theoretical matter, the typical innovator captures about 10 percent of the wealth that he or she creates, which means that the rest of that wealth is distributed through market transactions to employees, suppliers, and, most importantly, the customer base, which receives a panoply of new products and services at prices that are far below their reservation prices—i.e. the maximum amount that they are prepared to pay.

It follows that it is very difficult for any single group in a market economy to preserve its outsized returns against the competition of others. It is therefore false to insist that rising inequality operates as a barrier against further economic growth. It is always worth remembering that the period of most rapid growth in the United States—between 1870 and 1940—was achieved under a legal order that had a relatively strong commitment to laissez-faire economics and classical liberal political theory. The best evidence of the wide distribution of these gains is found in the enormous increase in life expectancy over that period, which spread to all segments of the population regardless of geography, race, or sex. There is no way, for example, that the overall increase in life expectancy from 47 to 54 in the twenty-year period between 1900 and 1920 could be concentrated in the top one-percent of the population. It had to be widely dispersed, and that could have only happened by a combination of felicitous events: The improvement of public health and infrastructure, whose benefits extended to the whole population even if its costs were largely borne by the relatively rich; the increase of superior products for consumption; and vastly safer working conditions on the job—all fueled by technological advances in every area of life.

Nor does Teixeira offer any sensible explanation for how rising inequality could ever slow down the economic growth that is achieved by voluntary market transactions. The great virtue of a market transaction is that it leaves both sides better off, even if they gain in unequal measures. The higher the rate of overall transactions, the greater the improvement in wealth, and the greater improvement in utility for all individuals, who can take advantage of the plethora of choices made available to them in an open environment. Ordinary transactions in goods and services are positive sum for the parties to them, and generate greater opportunities for third persons everywhere.

It is now possible to see how the progressive agenda thwarts the engine for growth in ways that private ingenuity finds it difficult to overcome. The initial observation is that virtually every progressive reform undermines free markets and tends to establish monopolies in labor, agriculture, and other industries. These rules frustrate the free entry into new markets. It is therefore inexcusable that the first impulse of the determined progressive is to impose restraints on voluntary exchange. These new taxes and regulations are always described benevolently as restrictions on the bad parties—on landlords, on employers, on insurers, on health care providers. But in practice they always operate as devastating constraint on both sides of the market. The labor law regime of collective bargaining that “protects” some employees also snuffs out opportunities for their nonunion competitors. Yet the Obama administration continues to place new obstacles that block access to marginal and teenage workers. It has sought to force franchisors like McDonald’s to be subject to liability for the alleged unfair labor practices of their franchisees; its Department of Labor works incessantly to subject ever larger segments of the economy, including the gig economy, to more serious regulations. These added regulations drive down employment opportunities and net wages, which keeps the next generation out of the middle class. When government raises the price of labor relative to capital, firms will be able to diversify in ways that workers cannot. Hence the greatest blows are landed on the intended beneficiaries of this misguided legislation.

The recent figures all point to a decline in business investment: capital, we are told, is on strike. And well it should be. The rise of economic populism sparks an increase in tax rates for both ordinary income and capital gains. The legal uncertainties over our vast regulatory apparatus also exert a downward force. The hyper-enforcement of the securities laws makes potential entrepreneurs and investors factor into their calculations the prospect of civil fines and criminal sanctions. The widespread hostility toward free trade warns future investors that they will face added difficulties in acquiring factors of production from abroad, which in turn makes it harder for them to sell inferior goods, with higher prices, in foreign markets. The massive subsidies for wind and solar energy impose higher taxes on more productive elements of society. Those burdens will be further compounded by the insatiable drive for revenue to fund expansion in free tuition, social security, and other transfer payments. The whole redistributive scheme bears little or no relationship to the classical liberal theory of taxation, which uses taxes chiefly to fund public goods for the benefit of all. The prospect of diminished returns thus explains diminished investment, sans any of Piketty’s intellectual diversions.

There is no one big story here. It is the accumulated distortions from multiple levels of misguided regulation and taxation, each of which is celebrated with scant regard to the negative synergistic effects of the entire package. Look through the entire Democratic National Platform, and it is clear that the party of “inclusion” holds out no welcome mat to innovation and growth. Rather, it hopes to target “the greed, recklessness, and illegal behavior on Wall Street” and stop “corporations’ outsized influence in elections.” The entire document is a collage of political posturing and economic naiveté. Donald Trump may be clueless on solutions. But his short term pessimism surely does a better job in capturing the national mood. Four more years of Democratic rule is the path to economic stagnation and social discontent.

*Considered one of the most influential thinkers in legal academia, Richard Epstein is known for his research and writings on a broad range of constitutional, economic, historical, and philosophical subjects.

Are Voter ID Laws Racist?

Richard Epstein*

 Richard Epstein

Richard Epstein

There are few things as controversial in American political life as voting rights. The issue surged to the fore this past week in Veasey v. Abbott when the Fifth Circuit, by a 9-6 vote, delayed the enforcement of Texas Law SB 14. This law limited the forms of photo identification that could be used when registering to vote to state driver’s licenses, U.S. passports, military photo IDs, concealed weapon permits, and U.S citizenship certificates with photographs. Although the law provided for some exceptions for poor and disabled persons, it has been attacked as the most restrictive voting rights law in the United States.

A variety of plaintiffs mounted both a constitutional and a statutory challenge to the law—the former under the Equal Protection Clause of the Fourteenth Amendment, and the latter under Section 2 of the Voting Rights Act, as amended in 1982. The plaintiffs’ burdens under the two provisions are distinct. It has long been accepted under the 1976 Supreme Court decision in Washington v. Davis that an equal protection challenge to any law cannot rest simply on proof that the law has a disparate impact by race, but rather, must show that there was some intention on the part of the lawmakers to abridge those rights on the grounds of race.

In contrast, the 1982 Amendments to the 1965 Voting Rights Act gravitated toward a stricter standard by prohibiting any law “which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.” That standard is then further refined in ways calculated to invite litigation, taking into account the possibility that the “political process is not equally open to participation by members of a protected class”—code for minority members, who have “less opportunity to participate in the political process.”

The issue of the constitutionality of photo IDs arose in 2008 in Crawford v. Marion County Election Board, where the Supreme Court, by a 6-3 vote, upheld an Indiana ID law that required voters to show either state or federal picture ID by denying that such a requirement unduly infringed on anyone’s right to vote. The Court only looked at the constitutional challenge and did not consider the 1982 Voting Rights Amendments, presumably because none of the parties thought it could support a claim. Instead, Justice Stevens wrote that the law was neutral on its face, and had a permissible justification of preventing voter fraud that could upset the results of individual elections and undermine public confidence in the electoral process.

One way to look at Crawford is that preventing voter fraud is important enough to justify the small burden on individual citizens of showing photo ID—a burden no greater than that faced for getting on an airplane. The record makes this view attractive. In Texas, the required IDs were held by over 95% of the population, but among the registered voters, “Hispanic and Black voters were respectively 195% and 305% more likely than their Anglo peers to lack SB 14 ID.” No one claimed this differential rate of registration was attributable to any form of state discrimination. Texas did not charge for the required ID, though there was evidence in the record that some individual plaintiffs had difficulty in navigating the system. It was also agreed that the Texas law passed in 2011 only after tremendous political struggle on a straight party-line vote, which reflected the dominance of Republicans in both houses of the Texas legislature.

There is little question that the Fifth Circuit could have easily dismissed the entire case by a respectful citation to Crawford. But instead, it took out the heavy artillery to upend the Texas statute. If Veasey survives, it will be exceedingly difficult for any photo ID law to pass muster in the United States, at least in the absence of heavily documented instances of fraud, and perhaps not even then.

Veasey goes off the rails with its uneven treatment of the fraud question. The debate over the frequency of individual fraud in various elections has been much mooted and the received wisdom is that the fraud risk is overrated in most cases. But the hard question is by exactly how much. The Veasey majority took an overly dismissive view on the question when it treated the risk as minimal, given that there were “only two convictions for in-person voter impersonation fraud out of 20 million votes cast” before the law was passed. But that result is also consistent with the proposition that significant fraud—including the organized fraud-rings found elsewhere—is going undetected by the criminal system, and a simple ID law is needed precisely because the criminal system is so weak. “Landslide Lyndon” Johnson’s victory in the 1948 senatorial election was, after all, rife with fraud. If it is permissible to refer to the inexcusable racism of 1930s Texas with respect to voting, why not take a similarly long view on fraud?

Once the fraud issue was downplayed, the majority in Veasey tackled both the constitutional and the statutory claims. On the constitutional issue, the inescapable difficulty with any intent test is that professional politicians on both sides of the aisle know which party is likely to benefit from any given enactment—which explains why the Democrats stonewalled and the Republicans pushed SB 14 over multiple legislative sessions. But if the simple knowledge of a disparate impact were sufficient to establish the intent requirement in an equal protection case, the jig is over: it is always there, and it always cuts in favor of the Democrats whose own political machinations are outside the purview of judicial review because they are acting on behalf of some protected class. Hence it takes more to establish the intent requirement, and it is here that the majority badly flubs the issue.

Let’s start with the simple point that no one found any statement by any person that indicated an invidious racial motive. To the majority, however, even this clean record was suspect, because it was quite happy to insist, without any documentation, on “the sad truth that racism continues to exist in our modern American society despite years of laws designed to eradicate it.” If you start with that presumption, you look for ways to confirm it. At this point, the majority first cautions against using evidence of misdeeds long ago to prove the charges, but nonetheless refers back to admitted cases of racial injustice, none of which are more recent than 1975. It also thinks it is permissible to infer racist sentiments from official opposition to the Voting Rights Act, which only hampers the ability of politicians to criticize the existing law, one that in my view has long been overly-intrusive into the electoral process.

There was clearly not enough in this disconnected set of dribs and drabs to sink the law, so the Circuit Court then mistakenly remanded the case for further findings to see if this portion of the case could be bulked up by circumstantial evidence gleaned by scrutinizing the long political battle. The simple point here is that every reform undertaken today is reviewed in light of sins committed decades ago. It is easier to think back to the original sins of America’s racist past than to trumpet the manifest progress on race relations that has only come undone in the last several years of heightened racial animosity.

The Fifth Circuit majority engages in equally dubious tactics in finding that the laws in question work a disparate harm on minority individuals. Once again, the heavy weight of the past is said to block equal participation in the political process, without any explanation of the major changes in legislation and voting behaviors since 1965. The 1982 Senate Report on the Voting Rights Amendments places a lot of emphasis on the various electoral devices of recent memory that were used to disenfranchise minority voters: the use of slates and large districts, for example. But the only issue that resonates today is the insistence that the law take into account “the extent to which members of the minority group in the state or political subdivision bear the effects of discrimination in such areas as education, employment and health, which hinder their ability to participate effectively in the political process."

At this point, it is easy to draw up a story about how the extra burdens of the voter ID laws fall disproportionately on minority persons, given that persistent differences by race in education, employment, and health are the norm today (in part because of the misguided progressive policies that hamper charter school education, place minimum wage and union barriers against minority employment, and block the entry of low-class corporate healthcare providers in minority neighborhoods). And it is easier still to select individual instances where the burdens of compliance are higher than the norm. But the central point is that nothing in the majority opinion stated, let alone demonstrated, that minorities who suffer from educational, employment, or health disadvantages find it any more difficult than white individuals to get the appropriate IDs. The sole objection was that there were more minority individuals in this vulnerable group, so that the disparate impact claim is always made out once the standard demographic information is trotted out.  By this dubious logic, it is possible to order the removal of existing safeguards against fraud because they too have a disparate impact.

It follows that, in light of the double-barreled attack mounted in Veasey, it will be exceedingly difficult to sustain any changes in voter ID laws. This is the highly likely result of any decision that poo-poos the fraud issue, and then relies heavily on past history to taint any efforts to tighten up ID requirements for elections. The long-term consequences of this decision are likely to prove unfortunate. For one thing, much progress could be made in voting rights by simply redoubling registration drives in poor neighborhoods. But instead, the litigation works in the other direction by encouraging people not to get the appropriate IDs if weaker forms of securing the ballot are available. Indeed, the occurrence of fraud is most likely in marginal neighborhoods where white, black, and Latino individuals may well have the weakest attachment to the overall political system.

The decision in Veasey is a careless condemnation of the current system on racist grounds. It may well be that the Texas system is far from ideal, and it would be foolish for any outsider to be overconfident that the ideal set of precautions has been adopted in this case. But based on the weak evidence presented here, it is surely a mistake for a majority of the Fifth Circuit to block the law within months of a presidential election. The Supreme Court should stay Veasey and review the outcome in light of its own now denigrated decision in Crawfold. The odds are 4-4 that this will not happen.

*Considered one of the most influential thinkers in legal academia, Richard Epstein is known for his research and writings on a broad range of constitutional, economic, historical, and philosophical subjects.

Religious Liberty Under Siege in Mississippi

Richard Epstein*

 Richard Epstein

Richard Epstein

Last month, Judge Carlton W. Reeves of the Northern District of Mississippi handed down an extraordinarily misguided decision in Barber v. Bryant by issuing a preliminary injunction against House Bill 1523, Mississippi’s newly passed religious liberty law, just minutes before it was to go into effect. The court found that House Bill 1523 likely denied the plaintiffs—a diverse group of supporters of same-sex marriage—their rights under Fourteenth Amendment’s Equal Protection Clause, and, furthermore, established preferred religious beliefs, violating the First Amendment’s Establishment Clause. Phil Bryant, the governor of Mississippi, has filed papers in the Court of Appeals to dissolve that temporary injunction. State Attorney General Jim Hood has declined to join in that defense of the Mississippi law. As someone who gave some brief advice and encouragement to Mississippi’s appellate lawyers, I think that their motion should be granted, given the major points of principle that it raises.

To put matters in context, HB 1523 was the latest effort to provide explicit protection of religious liberty and moral conscience for those individuals who are opposed to same-sex marriage. At no point does the legislation limit the right of any person to participate in a same-sex marriage, which would be an obvious nonstarter given Obergefell v. Hodges, a highly dubious Supreme Court decision, which held that the Equal Protection Clause of the Fourteenth Amendment guaranteed that right to all persons. House Bill 1523 does not seek to dislodge or compromise that decision. Indeed, it would have been dead on arrival if it had attempted any such maneuver. But as is often the case, no one quite understands the scope of a particular constitutional right until its correlative duties are accurately specified.

The correct reading of Obergefell comes in two parts. First, no private person can seek to block the performance of a same-sex marriage. Second, some public official must be prepared to solemnize those marriages, so that they have the full force and effect as traditional marriages. What the decision in Obergefell did not do, and indeed disclaimed, was the notion that people who are opposed to same-sex marriages had to participate in their validation. Even public officials can escape that duty under House Bill 1523 so long as alternative arrangements are made to ensure that “the authorization and licensing of any legally valid marriage is not impeded or delayed as a result of any recusal.” House Bill 1523 thus represents the kind of sensible accommodation that has long been the hallmark of religious liberty.

The explanation for this distinction is not hard to find. When any state bans same-sex marriage, it is using its monopoly power to block the consensual activities of private persons. They have no place else to go once that ban is in effect. The two conditions above neutralize that blocking power. But that mission is fully accomplished without conscripting other individuals to participate in these relationships, or indeed any other arrangements. The correlative duty commanded by Obergefell is noninterference; it is not support, participation, or approval. The Mississippi statute tries to cement that understanding into law by enacting three related provisions.

First, House Bill 1523 protects only those individuals with “sincerely held religious beliefs or moral conviction” that marriage is properly confined to one man and one woman, that sexual relationships should be limited to such marriages, and that the terms male and female refer to “an individual’s immutable biological sex as objectively determined by anatomy and genetics.” The protection applies to participation in religious services, but also to all employment-related and housing activities subject to the same caveat. The wording was chosen in part to make it clear that no explicit preferences were given to religious persons or groups on this score, in order to forestall the charge of favoritism. But there is little doubt that the religious element was the primary motivation for the provision.

Judge Reeves struck down the Mississippi statute because he did not grasp the fundamental distinction between forcing others to yield to your beliefs and just asking to be left alone. His confusion is evident from his opening salvo that quotes the Supreme Court in Epperson v. Arkansas (1968) as saying that the Establishment Clause of the First Amendment means that the state “may not aid, foster, or promote one religion or religious theory against another.” He then uses McCreary County v. American Civil Liberties Union (2005) to argue that it violates the Establishment Clause—“Congress shall make no law respecting an establishment of religion”—“when the government acts with the ostensible and predominant purpose of advancing religion.”

At no point, however, does Judge Reeves attempt to put either of these broad generalities into context. And context matters. The words in Epperson were directed to an Arkansas law that prohibited the teaching of evolution in public schools—a clear instance of a state-compelled law that binds all persons inside the legal system. No one could describe this as a situation in which private parties sought to run their own lives and businesses free of government interference. Similarly, McCreary County struck down two county resolutions that announced that the Ten Commandments were Kentucky’s “precedent legal code,” and authorized extensive religious exhibits on public property intended to extol its virtues. There is no similar commitment of public resources in House Bill 1523. It is practically legal malpractice to rip out of context words that were rightly intended to knock down state coercion for religion and the state subsidy of religion while invalidating a statute whose whole purpose was to insulate private parties from any form of public coercion.

One irony in this case is that Judge Reeves noted, with apparent approval, that Mississippi had passed its own Religious Freedom Restoration Act. Mississippi’s law, in line with the federal version, provides that the state may not substantially burden a person’s exercise of religion, unless it does so to further a compelling governmental issue by the narrowest form possible. This law has a broader scope than House Bill 1523, but its protection is not absolute, although it may be when these two conditions are satisfied. When the original federal statute was passed in 1993, the phrase “compelling state interest” had a reasonably clear meaning, according to which some powerful necessity had to be demonstrated to override the original constitutional right. The Mississippi statute refers to “a government interest of the highest magnitude.” Traditionally, this language meant that the state could curb religious freedom in order to prevent riots in public places. But in line with the general jurisprudence of the time, such instances were few and far between.

Not any more, one can at least argue. More concretely, the argument has been commonly made that the elimination of discrimination in all areas of American life counts as a compelling state interest, of course of the highest magnitude. Just that argument was put forward successfully in Elane’s Photography v. Willock (2014), where the New Mexico Supreme Court held that its state’s Human Rights Act prevented all private discrimination on grounds of sexual orientation. Thus when Elane’s refused to photograph a commitment ceremony for a lesbian couple, at a time when same-sex marriage was not legal in New Mexico, its appeal to the First Amendment protections of religion and speech fell on deaf judicial ears, in a case that the United States Supreme Court denied certiorari. It is therefore reasonable for the defenders of religious liberty to think that the potential evisceration of RFRA required the sterner protection of House Bill 1523.

In this case, they are right. Because there is only this narrow focus on religious and moral convictions, it is virtually impossible to think of any situation where the exercise of that right would in fact cause actionable dislocations to other people. The word “actionable” has to be inserted because otherwise any distaste for the actions of others, e.g. flag burning, becomes a harm that must be put into the scales, which means that every refusal to deal necessarily hurts the individuals who were rejected and their sympathizers.

Nonetheless, this overbroad account of harm resonated with Judge Reeves, who noted that the various plaintiffs could suffer some irreparable harm if the injunction in question were delayed. But at this point, a cold look at the relative tradeoffs explains why these alleged harms should be disregarded. On the one side, the targeted individuals may face the choice of having to go out of business to protect their religious or moral conscience. This is no better than the choice between your money and your life. But just what is the harm on the other side? There are thousands of employers and landlords, and dozens of vendors that are eager to cater to the interests of gay and lesbian couples. Indeed, it is highly unlikely that they would (as is their right) hire a photographer or caterer who was unsympathetic to their views. So how do individuals with many choices suffer from irreparable harm when persons who have no choice do not? The point should be as clear to the opponents of religious liberty as to its defenders.

Given this current impasse, it is critical to rethink the basic legal rules on private discrimination that set the stage for Barber v. Bryant. House Bill 1523 was drafted in ways in which the right to refuse service was tied to religious and moral convictions. Otherwise, a broader right would run into a collision course with one of the most venerable parts of the Civil Rights Act of 1964, the public accommodation provisions embodied in Title II. Historically, Title II had two potent justifications. The first is that it was a necessary corrective against massive abuses of state power under Jim Crow. Thankfully, that risk is gone today. The other justification was that the traditional common law view—still good today—that any common carrier or public utility, by virtue of holding a monopoly position, was duty-bound to take all customers on reasonable and nondiscriminatory terms. When ordinary people have no where else to go for power, water, or transportation, they are entitled to get these services at reasonable rates. The rule covered all cases of racial discrimination, but it was not limited to it.

The implicit drawback of this position was that there was no duty to serve anyone in a competitive industry, precisely because disappointed customers had a full range of alternatives to which they could turn. The common law rightly held that refusals to deal in competitive industries counted as basic liberties. In the progressive run-up to the New Deal, the argument was put forward that every refusal to deal in economic matters was an exercise of coercion—the kind of coercion that the state had a compelling interest to stop. That misguided view marked the end of economic liberties in all cases, and led to the passage of laws like the 1935 National Labor Relations Act, which forced collective bargaining in otherwise competitive industries.

The battle over religious liberties is a novel extension of the older war in one of the few bastions of individual liberty. Until recently, the older view on religious liberties exempted private religious beliefs from this hopelessly broad definition of coercion. But with the new progressive resurgence, that protected liberty shrinks while the domain of government power expands. It is a genuine intellectual tragedy that the people who speak on behalf of religious liberties—including the plaintiffs in Barber, many of whom represent gay, lesbian, and transgender people—can be so alert to their own claims of personal liberty, and yet so insensitive and indifferent to the claims of others.

*Considered one of the most influential thinkers in legal academia, Richard Epstein is known for his research and writings on a broad range of constitutional, economic, historical, and philosophical subjects.