Is Franchise Association’s Bonkers Lawsuit an Overture to Far-Right Challenge of Government’s Right to Regulate Business at All?

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.

Comments

  1. 1

    you gotta be kidding spews:

    Nice conflate the lawsuit to abolishing the minimum wage in it’s entirety, much in the way $15NOW conflates every busines as equal to McDonalds. The fearmongering (literally quoting that anyone who works for a living should be frightened) and demonizing never stop, it’s like Fox News in its partisanship and misinformation, but the other side of the political coin.

  2. 2

    headless lucy spews:

    re 1- “…$15NOW conflates every busines as equal to McDonalds. ”

    Where do they say that?

    I think that in your own retarded way, you are trying to say that $15NOW lies like FOX news — that the left and the right lie equally.

  3. 3

    you gotta be kidding spews:

    Sort of, what I am saying is extreme ideologues on either side misrepresent in order to whip up ferver in their followers. Case in point David Rolf calling the group “

  4. 4

    you gotta be kidding spews:

    (continued)……My point was that extreme ideologues on either side misrepresent the other side. Case in point was David Rolf calling Forward Seattle a “fringe group of right wing ideologues”. Wow, in what world is a group of small businesses asking for a vote to raise the minimum wage to the highest in the country a group of right wing ideologues? Is anyone not in full support of $15 NOW a fringe right wing ideologue? This is a perfect example of demonizing that has no basis in the real world. Business does it also by acting like anyone working for minimum wage is a shiftless, lazy, malcontent. Both are as equally disingenuous, and as bs as conflating the IFA lawsuit as being a threat to abolish minimum wage. I am so sick of the hyperbole & dishonesty from both sides of this issue. I would rather it go to a vote, who better to decide the terms of business with the corresponding consequences in their own community than it’s citizens?

  5. 5

    spews:

    @4 It’s not hyperbole to suggest that if the IFA were to prevail on its claims it would effectively abolish the minimum wage. It is logic. The legal arguments they appeal to would effectively abolish the minimum wage—as they did during the Lochner era when these exact same legal arguments held sway.

    So which is it? Did they knowingly file a frivolous lawsuit, or are they attempting to undermine the legal framework for our nation’s entire regulatory structure. It’s one or the other.

  6. 6

    screed spews:

    I think it is totally appropriate to recognize that the 5 justices which comprise most of the majority rulings in the Roberts Supreme Court have a right-wing political agenda which strongly favors private, big-monied interests over everything else. It is a partisan and activist court that puts the Warren court to shame. So yea, I can totally see them using something like the $15 minimum wage as way to rule that states and local governments have only a very limited right to regulate private business activities – the extent to which businesses can be regulated is therefore vested primarily in the federal government (because of the commerce clause), and even that authority is limited to a narrow definition of interstate commerce.

    It is a fools errand of course, because all they’ll end up doing is killing the goose that lays the golden egg (our legal system, our institutions, our economy, our planet…). I don’t think people realize how radical this supreme court is, but so what, right? If it pisses off liberals then it must be ok, never mind the consequences.

  7. 8

    headless lucy spews:

    re 4 — “…who better to decide the terms of business with the corresponding consequences in their own community than it’s citizens {and unlimited amounts of corporate money free speech}?”

    Do you see a pattern emerging?

  8. 9

    you gotta be kidding spews:

    @5 “Did they knowingly file a frivolous lawsuit, or are they attempting to undermine the legal framework for our nation’s entire regulatory structure. It’s one or the other.”

    Really, and that’s not hyperbole? Suggesting that a lawsuit based on treating franchise’s size by the number of employee under a specific UBI or Tax ID, as opposed the brand as a whole across the nation is going “undermine our nations entire regulatory structure” isn’t hyperbole? If that isn’t hyperbole then nothing is. The lawsuit seeks to change the terms of what how a large/small business is defined in 1 cities ordinance, not quite an attack on the entire nation entire. I think the lawsuit will fail, but I certainly see how a Subway owner with 1 store and only a handful of employees feels treated unfairly.

  9. 10

    spews:

    @9 Don’t be an idiot. It’s not overturning this particular law that’s the danger, but the arguments they’re using to do it… arguments that have been rejected by the court since 1937 with the famous “switch in time that saved nine.”

    Did you actually bother to click through and read Millhiser’s post before commenting?

  10. 11

    you gotta be kidding spews:

    @8 “who better to decide the terms of business with the corresponding consequences in their own community than it’s citizens {and unlimited amounts of corporate money free speech}?”

    More fear mongering, who said anything about corporate money? Oh that’s right it couldn’t possibly be about small business owners. Citizens United allowing $ to equal free speech is a sham, but much like David Rolf you would rather paint small business owners with the McDonalds brush.

    @ 10 you were the one that said the lawsuit was either frivolous or and “attempt to undermine the nation’s entire regulatory system.” That is hyperbole to the extreme. It is your opinion & others that it is frivolous. It is also the opinion of other credible people like Paul Clement that it is not. But how about some proof they are trying to undermine the nations regulatory system? Or can anybody just make wild sweeping accusations and they should be taken seriously?

  11. 12

    Calpete spews:

    Clement is a piece of work, but Millhiser’s warning should be heeded. We’ve seen over and over that the Roberts Court is not interested in affirming anything even remotely liberal that comes before it, and we’ve also seen on a number of occasions that the current Chief Justice should be impeached for the perjury he committed during his confirmation hearings when he affirmatively stated that he was and intended to continue to be very, very respectful of stare decisis. In fact, every time he’s been given the chance, he’s thrown precedent to the wind; this case might well be one of those chances, and if it is Clement is the lawyer who can draw that decision.

  12. 13

    Puddybud - The One The Only spews:

    So when the Supreme Court claimed ObummerCare was A-OTAY, ObummerCare isn’t “remotely liberal” as you claim CalPete?

    Puddy sez let $15/hr go. Sure why not. Eventually free markets will decide if the CBO, Bill Gates, Warren Buffet and others are right and this is a libtard boondoggle. Butt, the single Subway franchisee who pays his franchisee fee from whatever profits he makes is being nailed here.

  13. 14

    sally spews:

    “Frivolous” is a semi-legal term — used often in defense pleadings and acknowledged by judges.

    Yup, Goldy’s right (as usual): the particular lawsuit doesn’t mean squat. What’s important is whether the claims are upheld or denied and then win or lose on appeal. The appellate judgment becomes caselaw, and generally only deep pockets can push an appeal upstream to the next court. Some lawyers I’ve known won’t appeal even though they have a good case, because they don’t want to get a bad judge and force the whole bar to deal with the resultant caselaw.

    This whole thing is the result of rich Republicans funding conservative lawschools and paying bright but awful people to get law degrees. We are just generally fucked.

  14. 15

    Calpete spews:

    The Supremes struck down the liberal portion of Obummercare, as you call it, that would have spread Medicaid to a great number of people who otherwise couldn’t afford insurance, and left the parts that directly enrich the insurance industry. I don’t call that liberal, and I don’t agree that it means the Court ruled the ACA was “A-OTAY”. On the contrary, it shows the Court was not interested in either affirming ACA or in the leg. hist. of how it came to be written (which lower courts review). I suppose you think the Court’s liberal because of how it “affirmed” all the parts of the Voting Rights Act except the part that actually made it easy to vote, too.

  15. 16

    Roger Rabbit spews:

    I was reflecting tonight about the BS arguments used against the minimum wage, and random thoughts about my own experiences with employers came to mind. In no particular order:

    1. People who defend low wages often argue that people who want to earn a living wage should get more education; but in the real world, getting a college or advanced degree disqualifies you from many jobs. For example, getting a law degree is a killer for your job prospects in any other field, because no one hires lawyers for non-law jobs.

    2. People who blame unemployment on “laziness” often point claim there are millions of unfilled openings and point to large numbers of job ads; but in the real world, many advertised positions aren’t real or are already filled.

    3. Good jobs don’t have to be advertised, and usually aren’t. They’re filled through personal contacts. That’s why so much emphasis is put on networking.

    4. Say what you want about “millions of job ads,” it is employers — not job seekers — who throw up barriers to hiring. The fact you can’t get an employer to read your resume or return your calls doesn’t make you a lazy worker.

    5. Let’s not forget that employers are often unreasonable, irrational, and quirky, and let’s not expect job applicants to work for someone just because he offers a job. Just as employers have a right to reject applicants, job seekers have a right to reject employers, and sometimes there are good reasons for doing so.

    I could think of lots more, but it’s time for my beauty sleep.

  16. 17

    Puddybud - The One The Only spews:

    The Supremes struck down the liberal portion of Obummercare, as you call it, that would have spread Medicaid to a great number of people who otherwise couldn’t afford insurance

    There you go again CalPete… Obummer called it Obummercare in 2012 CalPete. Do you need the link? The Supremes said it was ILLEGAL for Obummer through Obummercare to threaten to withhold money from states whom chose to not fully comply with Obummercare. That’s standard DUMMOCRETIN. If you don’t comply we will exact a pound of flesh and create pain for your state. And the way Obummer’s Justice Department argued Obummercare that March 2012 the Supremes claimed the mandate forcing REAL Americans into obligatory purchasing healthcare insurance is definitely not covered under the commerce clause of the constitution, but as a REAL tax on REAL Americans. If you remember Obummer took umbrage to that! Do you remember CalPete? Need to see a link on that too?

    So please CalPete… don’t be like other DUMMOCRETINS here and use the spin cycle when you post. Puddy knows better!

  17. 18

    Puddybud - The One The Only spews:

    Another IDIOT Wabbit anecdote

    For example, getting a law degree is a killer for your job prospects in any other field, because no one hires lawyers for non-law jobs.

    My son’s best friend’s mother was hired for a non-lawyer job because she was trained at in a top tier IVY LEAGUE institution as a lawyer and chose NOT to practice! My son mentioned when he entered (top tier) law school you don’t matriculate into a second or third tier toilet (Google Third Tier Toilet School) and expect to find a decent job. That gets you a law degree from some liberal law program unlike sally’s post#14 above and NO ONE hires you! Maybe that’s what scared sally to write what she did above. Conservative law schools graduates get hired!

    Golly IDIOT Wabbit what a PUTZ! You post some of the weirdest Rabbit droppings here.

  18. 19

    Steve spews:

    “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.”

    West Coast Hotel Co. v. Parrish, a case from our state which upheld the constitutionality of the minimum wage, seems most credited with ending the Lochner era in 1937, or at least began to reach a close. If we should know anything by now it’s that, if IFA gets this in front of the Roberts court, anything can happen.

    What we thought ended in 1937 rises from the dead in the 21st Century with another case from our own state? There would be a bit of irony in that.

    http://en.wikipedia.org/wiki/W.....v._Parrish