I am not an attorney, so when I initially characterized the International Franchise Association’s $15 lawsuit as “hilarious,” “laughable,” and “frivolous,” I suppose my lack of a JD was permission enough to shrug off my analysis. But I’ve yet to hear a real lawyer disagree.
Labor and employment attorney Dmitri Iglitzin described at least one IFA claim as “crazy talk.” And writing on his own blog, University of Washington School of Law lecturer David Ziff responded to various IFA arguments with offhand dismissals like “frivolous,” “non sequitur,” and “Wowsa. Seriously.”
But one of the more interesting analyses—and a somewhat unsettling one—comes from attorney Ian Millhiser, the Senior Constitutional Policy Analyst at the Center for American Progress Action Fund. Writing at ThinkProgress, Millhiser originally titled his post “The Completely Bonkers Lawsuit Seeking To Kill Seattle’s Minimum Wage & Repeal The Twentieth Century,” before revising it to something a bit more lawyerly. So he agrees with me that that arguments are facially bonkers. Read the whole thing.
But it’s that part about repealing the Twentieth Century that really caught my attention.
So the Seattle lawsuit relies on arguments that are either silly, dangerous or both. It calls for a wholesale transfer of power away from the American people. And it would repeat some of the worst mistakes of American governments’ past. Indeed, many of the arguments raised in the plaintiffs’ complaint are so absurd that they raise an important question — why should anyone care that this lawsuit was filed? People file silly lawsuits all the time. One guy once filed a federal suit against “Satan and his staff,” claiming that “Satan has placed deliberate obstacles in his path and has caused [his] downfall.” But there was never much risk that a federal judge would issue an injunction against the Devil.
The answer to this question is that the Seattle lawsuit does have one thing going for it that the guy who sued Satan did not. It is being litigated by Paul Clement, the conservative superlawyer that we have rather archly referred to as the “Solicitor General of the Republican Party.” Clement is the go-to lawyer for Republican interest groups seeking to implement Republican policies through the judiciary, and he has a knack for making ridiculous legal arguments sound plausible to conservative judges. Recall that Clement nearly convinced the Supreme Court to strike down the entire Affordable Care Act, largely relying on a legal theory that one very conservative judge mocked for having no basis “in either the text of the Constitution or Supreme Court precedent.”
As Millhiser points out, lawyers are usually reluctant to sign their names on to such outlandish legal arguments. But…
Clement, however, is such a successful attorney in large part because he has his finger on the pulse of the conservative legal thinkers who dominate the Supreme Court of the United States. He is a better judge of how far he can push the justices than nearly anyone else in the country. And, if he thinks that the kind of arguments that he makes in his brief can be made with a straight face, then that is saying something quite significant.
The conventional wisdom, based not just on speculation but on the justices’ own statements, is that the Roberts Court is quite conservative but it certainly isn’t prepared to revive the judicial overreach that pervaded the Lochner Era. One of the best lawyers in the country, however, appears to have concluded that this conventional wisdom is wrong. If Clement turns out to be correct, that should frighten anyone who works for a living.
Understand that for the IFA’s arguments to stand, the court wouldn’t just have to find the franchise provisions unconstitutional, but minimum wage laws in general. Everywhere. Local, state, and federal. For that was the status quo between 1905 and 1937, the era in which Lochner held sway.
So yeah, based on the past 75 years of jurisprudence, the IFA lawsuit is indeed hilarious, laughable, and bonkers. But that’s assuming the ultra-conservative Roberts Court isn’t radical enough to toss out our nation’s entire regulatory structure.