Lochner, Anyone? Franchise Association Lawsuit Has Always Been About a Helluva Lot More than $15

(image courtesy of McDonald's)

(image courtesy of McDonald’s)

There was more good news on the minimum wage front today when a three-judge panel of the 9th US Circuit Court of Appeals affirmed a district court’s denial of a preliminary injunction which the International Franchise Association had sought in an effort to block enforcement of Seattle’s $15 minimum wage ordinance:

The panel held that IFA did not show that it was likely to succeed on the merits or that a preliminary injunction was in the public interest. Rejecting IFA’s claims that the Seattle ordinance violated the dormant Commerce Clause, the panel determined that there was insufficient evidence of a burden on interstate commerce. Rejecting IFA’s claim brought under the Equal Protection Clause, the panel held that the district court did not err in finding a legitimate purpose in the classification and a rational relationship between franchisees and their classification as large employers. The panel further rejected IFA’s First Amendment challenge after determining that the Seattle ordinance was not motivated by a desire to suppress speech, the conduct at issue was not franchisee expression, and the ordinance did not have the effect of targeting expressive activity. The panel also held that ordinance was not preempted by the Lanham Act and did not violate the Washington state constitution.

You know, as expected. As I wrote when the suit was first filed back in June 2014, the IFA’s claims have always been “downright laughable.” But I won’t be laughing if the US Supreme Court decides to hear the IFA’s inevitable appeal, because this lawsuit has always been about a helluva more than $15.

At first glance, the IFA’s claims look like a grab bag of grasped straws. But when you look at who’s litigating the claims—arch-conservative former Solicitor General Paul Clement—a more devious legal strategy starts to emerge. And of particular concern is Clement’s appeal to the dormant Commerce Clause and the Equal Protection Clause of the 14th Amendment—making arguments that haven’t held sway since the demise of the infamous Lochner era in 1937.

Clement is taking aim not just at Seattle’s ability to treat franchises differently from other businesses, but at the legal precedent on which our nation’s entire regulatory framework has been built these past 78 years.

Is the Roberts Court really prepared to inch back toward Lochner even a little? Hard to believe. But given the otherwise hilarious nature of his claims, that’s exactly what Clement seems to be betting.

Jeb Bush Says Black People Vote for Democrats Because They Get “Free Stuff”

This model from Bush's website is likely the only minority you'll likely ever see wearing a Jeb! t-shirt.

This model from Bush’s website is likely the only minority you’ll likely ever see wearing a Jeb! t-shirt.

At the East Cooper Republican Women’s Club annual shrimp dinner, Jeb Bush was asked how he thinks the Republican Party should reach out to African-Americans. His response is one that you’ll hear repeated a lot over the next few months: “Our message is one of hope and aspiration. It isn’t one of division and get in line and we’ll take care of you with free stuff. Our message is one that is uplifting — that says you can achieve earned success.”

Huh. That statement is at once racist, classist, and disingenuous. At least Mitt Romney had the sense to make most of these kinds of statements behind closed doors, where he thought he wasn’t being recorded.

First of all, let’s talk about the economic side of Bush’s argument. Look: nobody’s asking to be taken care of “with free stuff.” Nobody below the poverty line feels like the king of the world because they have to wait in line for hours to get food stamps. And if we didn’t provide assistance programs to people who need it, we’d be paying in lots of other, more unpleasant ways. If Bush had to live like a poor person for a week, he’d understand that this is not the Monopoly man tossing bags of cash around; poor people have to work to get and maintain benefits, and they do it because they have no other choice.

On a racial level, what Bush said is even more idiotic. The statement is so beyond condescending—to reiterate, he just implied that an entire race of people has been addicted to free stuff and they need to be granted their dignity—that it has to be planned. The way I see it, Bush is doing one of two things here: he’s either dog-whistling to racist voters by playing to the unrealistic stereotype of African-Americans that they have in their heads, or he’s so genuinely out of touch that he believes he’s making an overture of peace between the Republican party and African-American voters. So is he overtly racist, or is he just clueless? I honestly don’t know which is worse.

And the last sentence in Bush’s statement, his claim that the Republican Party is a better party because they believe you can “achieve earned success,” is entirely out of touch with the world around us. People are angry because they want a fair shot at success, and they don’t believe that they’re getting that shot. They’re right; inequality is dangerously high, and the game is rigged in many obvious ways against minorities. Unless Bush starts talking about real ways to counteract these real problems, he’s never going to earn African-American votes, especially if he keeps making condescending points to rooms full of white people at shrimp dinners in South Carolina.

What’s the Matter with Kansas? It’s an Economic Shit Show, That’s What

If the goal was to lag the rest of the nation in job creation, Kansas Governor Sam Brownback's massive tax cuts were a huge success!

If the goal was to lag the nation in job creation, Kansas Gov. Sam Brownback’s massive tax cuts were a huge success!

By now, most of you are probably familiar with the budgetary disaster that Kansas Governor Sam Brownback’s massive tax cuts have created in the Sunflower State: Double-digit percent annual budget deficits as far as the eye can see.

Brownback’s pitch was familiar—cut taxes deep enough and the resulting economic boom would more than replace the hit to state coffers. But it didn’t work. Because it never works. Dr. Laffer’s Patented Low-Tax Elixir is pure economic snake oil.

Still, Brownback and his supporters have continued to argue, give his plan time to work and the lower corporate and personal income tax rates would surely draw businesses and jobs to the state. Well, now we know that’s not happening either:

Gov. Sam Brownback’s income tax-cut plan to spur job growth in Kansas has become a full-time disaster.

On Friday, the state announced it had lost 3,000 total jobs in August. That’s on top of the 5,100 jobs lost in July.

Here’s even more dire news: The Sunflower State in the past 12 months gained a total of a puny 1,000 new jobs.

That’s the fourth worst record in the entire United States, at .1 percent employment growth for the entire last year.

In terms of job gains/losses over the past 12 months, only West Virginia, North Dakota, and Alaska have performed worse—all states whose core fossil fuel extraction industries have been hard hit by the collapse in energy prices. Meanwhile, neighboring Missouri has added a robust 30,800 jobs over the past 12 months, despite its higher tax rates.

And in case you’re wondering, Washington added 92,200 jobs from August 2014 through August 2015, including 12,100 jobs in food services and drinking places, despite our highest in the nation minimum wage!

Hmm. If Brownback wants to grow jobs, maybe he should consider raising the minimum wage rather than cutting taxes? I’m just sayin’.

Daily Clips: September 25th, 2015

John Boehner will resign from office in October: I have a lot of conflicting emotions about this news. On the one hand, I’m (super) excited that this dud-of-a-leader has decided to hang up his boots, but on the other hand, I feel like I owe my progressivism largely to John Boehner. In the infancy of my political conscience, I would watch Keith Olbermann’s show where Boehner was regularly one of the host’s “Worst People In The World.” His obstinate conservatism helped shape my contempt for the modern GOP. Fiscal cliffs, farm bills, Obamacare, Department of Homeland Security, and now the latest government shutdown – these are Boehner’s great accomplishments.

I understand that he was caught “betwixt and between” the establishment and the Tea Party, as Chris Cilliza put it. But that doesn’t excuse him for his partisan leadership. Moreover, it doesn’t excuse him from showing no backbone to the American people. He was a coward who let a bunch of racists, misogynists, and homophobes control him.  As Boehner walks away from this esteemed position, he should know that he has handicapped this nation instead of moving it forward. He will go down as one of the worst Speakers of the House in US history.

How many wars is the US really fighting? Our nation loves war – there’s no doubt about that. But we probably don’t know the full extent of our military aggression, particularly our special forces who are staged all across the world. Here, The Nation has a neat article on our special-ops and the breadth of their engagement in the wider world.

Huckabee: ‘What kind of Christian’ is Obama?  Hear that dog whistle, Tea Party?

Jeb Bush: The Pope shouldn’t discuss climate change because ‘he’s not a scientist’: By this logic, Jeb! shouldn’t talk about Planned Parenthood because he’s not a woman. If only…

EPA says to take tougher stance on auto emissions tests: According to Reuters, US environmental regulators said they will be “stepping up emissions testing activities in response to Volkswagen’s alleged violations of pollution laws.” About time.

Marco Rubio Tries to Lecture the Pope on Economics, and He’s Wrong on Every Count

Times are tough for Catholic Republican politicians, especially this week. They have to somehow justify their own political and religious views in response to Pope Francis, who clearly disagrees with them on many of their most closely held beliefs. What do you do when your spiritual leader speaks openly and passionately against unfettered capitalism and laws that promote poverty? Here’s Marco Rubio, trying to justify why the Pope thinks he’s wrong on a host of issues:

Here’s Rubio’s explanation, via ThinkProgress:

“On moral issues, [Pope Francis] speaks with incredible authority,” Rubio said. “He’s done so consistently on the value of life, on the sanctity of life, on the importance of marriage and on the family. [But] On economic issues, the pope is a person…We have the same goal — providing more prosperity and upward mobility, I just honestly believe free enterprise is a better way of doing it.”

And on the environment:

Rubio also said he “understands” Pope Francis’ call to fight climate change and be “stewards of the Earth,” but doesn’t believe in “big government mandates” to solve the problem of climate change. In fact, as Rubio often does, he argued that policies to fight climate change would actually harm the poor by killing jobs — something that is widely disputed, as the renewable energy sector is currently creating thousands of jobs.

Rubio thinks he knows more about morality than Pope Francis

Rubio thinks he knows more about morality than Pope Francis

So in short, Rubio thinks Pope Francis is doing God’s work when Pope Francis’s agenda aligns with his own agenda, but when Pope Francis disagrees with Rubio, he’s just “a person.” One could argue that this means Rubio thinks he’s better-aligned with God than the Pope, but let’s not get too far down the rabbit-hole of Rubio’s self-regard. That road gets really ugly really quickly.

Instead, let’s look at one point that Rubio makes in that first passage, because it’s an important one. Rubio has nothing but positivity for Pope Francis’s stance on “moral issues,” but he expresses something like disdain when the Pope speaks as “a person” on “economic issues.” This is an important distinction; it means that Rubio doesn’t believe that economics is a moral issue. This is unbelievably dumb.

Economics is a moral issue. What else could it possibly be? It’s not a science. As Nick Hanauer said on this blog a while back, “Economics is mostly how humans rationalize who gets what, and why. It’s how we instantiate our preferences about status, privileges, and power.” That’s about as moral as it gets. People can’t get access to health care because of economics. People die early because of economics. Economics is how we justify the fact that some people never get a chance to realize their full potential. Economics identifies why the wealthy are wealthy and why the poor are poor, and it offers us a lazy way out of taking action to address poverty.

Rubio is delusional here if he thinks economics is some sort of self-regulating system that humans can’t control. To claim that economics is outside the realm of morality signifies a deep and alarming lack of understanding about the effect economics can have on people. And his claims that the free market can regulate climate change better than governments is an out-and-out lie that’s been disproven time and again over the last few decades. When it comes to morality and economics, Rubio has it exactly wrong: he claims God offers him the certainty to declare other peoples’ actions as sinful, but he thinks the free market is an all-seeing, all-knowing arbiter of justice that cannot be interfered with by man or law. This kind of magical thinking is downright dangerous.

Skunkworks Stinker of the Day: the American People

Game of Thrones

Anything to keep out the white walkers, I guess:

41 percent of Americans say that if a wall is built along the Mexican border, one should also be erected on the Canadian one. And yes, the same percentage favors a wall erected along the nation’s southern border.

Oy. I mean, oy.

As a Washingtonian, it makes me want to build a wall on our state’s southern border.

Daily Clips: September 24th, 2015

Noam Chomsky: The GOP is a radical insurgency; it’s not a political party: In a recent interview, Chomsky identifies how the modern Republican Party have well and truly left the confines of political reality. Here is his most provocative, but compelling description of this phenomena:

It is important to bear in mind that the Republicans have long abandoned the pretense of functioning as a normal parliamentary party… Since Ronald Reagan, the leadership has plunged so far into the pockets of the very rich and the corporate sector that they can attract votes only by mobilizing sectors of the population that have not previously been an organized political force, among them extremist evangelical Christians, now probably the majority of Republican voters; remnants of the former slave-holding States; nativists who are terrified that “they” are taking our white Christian Anglo-Saxon country away from us; and others who turn the Republican primaries into spectacles remote from the mainstream of modern society—though not the mainstream of the most powerful country in world history.

Pope Francis’ full address to Congress: I don’t want to get caught up in the hysteria of Pope Francis’ visit, but his speech to Congress this morning is certainly worth a listen (or a read). He hits on major themes which America struggles with today: income inequality, hatred towards the “other”, and a basic failure to follow Christ’s Golden Rule. The best part about the address may be watching John Boehner’s face.

Pope Francis and the economic order: While George Will freaks out about the Pope criticizing capitalism and warns that “Americans cannot simultaneously honor him and celebrate their nation’s premises,” the rest of us know that the Pope actually speaks the truth when it comes to economics (and isn’t against our “nation’s premises”). As Harold Meyerson writes,

In place of our current system, Francis has recommended giving workers more power — in particular, promoting worker-owned and -run cooperatives. Speaking to delegates from Italian cooperatives, he extolled “an authentic, true cooperative . . . where capital does not have command over men, but men over capital.

This kind of advocacy dooms you to labels of “socialist” in the US, but that isn’t left-wing – that’s common sense.

AEI Economist Mark Perry Proves Low Minimum Wage Kills Jobs!

Screen Shot 2015-09-22 at 2.05.23 PM

Normally I wouldn’t take a random snapshot of an unrevised, overly-broad, and notoriously noisy data set as conclusive evidence of anything, but the American Enterprise Institute’s Mark J. Perry does have a PhD in Economics, so I’ll just have to presume that he knows what he’s doing and follow his lead.

Perry helpfully offers the chart above that shows food service jobs in Washington state outside the Seattle-Tacoma-Bellevue Metropolitan Statistical Area (MSA) increasing by 5,600 since January 2015 while food service jobs within the MSA have fallen by 100. What happened in January to make that a meaningful starting point? Hell if I know. But I’m confident a PhD in Economics wouldn’t disingenuously cherrypick a date range and data set just to make a partisan point, so I’ve no choice but to place my faith in Professor Perry’s scholarly judgment.

So what does this say about the impact of Seattle’s $15 minimum wage ordinance, which took an initial step to $11 an hour in April? Professor Perry doesn’t explicitly say, but I think the implications of his research are crystal clear: Seattle’s higher minimum wage is depressing food service employment in the lower-wage areas surrounding the city.

To understand Professor Perry’s startling conclusion, you have to understand the data set with which he is working. The Seattle-Tacoma-Bellevue MSA covers all of King, Pierce, and Snohomish counties, an area with a total population 3.61 million—more than half of the state’s estimated 7.06 million inhabitants. The city of Seattle proper however, with a population of 668K, only accounts for 18.5 percent of the Seattle-Tacoma-Bellevue MSA.

Clearly, Professor Perry must understand that an MSA more than five times the size of the city proper can’t tell us much on its own about the employment effects of the minimum wage within Seattle—I mean, he has a PhD in Economics, for chrissakes. So given the rigors of his profession, any conclusion he might draw can only be made within the context of additional data.

Fortunately, we’ve got plenty of other data to work with. For example, friend of the blog Invictus has been providing us with weekly updates on Seattle food service permits showing a roughly 3.2 percent increase in the number of establishments in-city since the start of the year. But what do the number of food service establishments tell us about the number of food service employees? Actually, quite a lot.

The US Census Bureau provides detailed employment data at the city, county, and MSA level every five years, and Seattle’s ratio of food service employees per food service establishment has stood near 14.5 in 2002, 2007, and 2012. And since there’s no reason to suspect a substantial shift in this ratio in the three years since the last city-level report, we must logically conclude that Seattle’s 3.2 percent increase in the number of food service establishments since the start of the year roughly correlates to a 3.2 percent increase in Seattle’s number of food service employees.

Meanwhile, the state provides monthly county-level data jobs data, which, seasonally-adjusted, shows a 2 percent increase in food service jobs since the start of the year in King County. Since we know Seattle’s food service job growth is roughly 3.2 percent year-to-date, and historical Census data tells us that Seattle accounts for about half of King County’s food service employment, we can extrapolate the data to conclude that the number of food service jobs in non-Seattle areas of King County have only grown by about 0.8 percent year-to-date.

In other words, food service jobs are growing four times faster in Seattle than in lower-wage surrounding King County. Wow!

What about the rest of the MSA? Seasonally adjusted, state data shows Snohomish County food service jobs growing at only 1.3 percent year-to-date, while food service jobs in Pierce County have actually declined by 0.5 percent. Thus, if there has been a loss of bar and restaurant jobs in the Seattle-Tacoma-Bellevue MSA, the loss has come entirely from Pierce County—where the Tacoma city council recently failed to raise the minimum wage. Food service jobs in the rest of the three-county MSA—especially in higher-wage Seattle—continue to grow.

So thank you, Professor Perry, for proving the job-killing impact of Pierce County’s lower minimum wage.

Yes, I know, that’s a lot of math based on a lot of assumptions drawn from a lot of random, unrevised, overly-broad, and noisy data. But Professor Perry has a PhD in Economics, and I’m only following his scholarly lead.

Or, if you don’t trust my math, you could just look at the Federal Reserve data for the Tacoma-Lakewood Metropolitan District (which includes all of Pierce County) and double check my conclusions for yourself:


Presumably, Professor Perry must know that these finer (though still overly-broad) metropolitan district data sets exist. And he must also know that the Seattle-Bellevue-Everett MD (just King and Snohomish counties) shows a year-to-date food service job gain, not a job loss. And since I can’t believe a PhD in Economics would really mean to imply that Seattle’s minimum wage ordinance was costing the city jobs—when all the data clearly points to the opposite—I can only assume that Professor Perry has drawn the same conclusions as I.