Last week, the Los Angeles County Board of Supervisors voted to increase the minimum wage to a living wage of $15 an hour. That’s part of a movement that has brought thousands of low-wage workers to the streets across America. But in a quiet courtroom just a few blocks from the scene of the July 21 vote, high-priced corporate lawyers are fighting back, claiming that an earlier city of Los Angeles minimum wage increase somehow violates the hotel industry’s constitutional rights.
Los Angeles and its supporters are defending the minimum wage increase, but the hotels’ lawsuit is part of a national wave of corporate constitutional challenges to living wage laws that may be headed to the Supreme Court.
Living wage laws receive spirited debate. Supporters say that a higher wage will stimulate economic growth and give full-time workers a chance to escape poverty. Others contend that higher minimum wages are counterproductive. Those arguments are worth considering. But they are not constitutional arguments — they are political arguments. And the debate should be settled at the ballot box, not in the courts.
In the early 20th century, the Supreme Court often struck down laws that violated its view of laissez-faire capitalism. For example, in 1923 the Court invalidated a federal minimum wage law as violating “freedom of contract,” which isn’t actually in the Constitution. That era of judicial activism ended in 1937, when the Court finally recognized that enforcing a disputed theory of economics isn’t the courts’ role, and rejected a corporate constitutional challenge to Washington state’s minimum wage law.
But now, corporate advocates feel the wind in their sails after the Court’s decisions in Citizens United, which gave corporations a constitutional right to spend unlimited money to influence elections, and Hobby Lobby, which allowed corporations to claim religious objections to employee benefits laws. And lately we’ve seen a wave of corporate constitutional challenges to minimum wage laws, in New York, Miami, Seattle, and now Los Angeles. These lawsuits don’t just argue that a minimum wage law hurts the corporate bottom line. They claim that it violates the Equal Protection Clause of the 14th Amendment, which was passed after the Civil War to protect the rights of freed slaves.
But the Equal Protection Clause was intended to protect people, not corporations. Historical research shows that the framers of the 14th Amendment were actually quite interested in “living wages.” During the congressional hearings on post-Civil War Reconstruction that led to the amendment, the amendment’s Senate floor manager repeatedly quizzed witnesses about whether the freedmen could earn “fair, living wages” without government intervention.
For everyone who cares about the Constitution’s original intent, this history discredits the very idea of corporate equal protection challenges to living wage laws. But the corporate legal strategy in these cases is clever, if cynical. As part of the inevitable negotiation and compromise, local minimum-wage laws sometimes aren’t one-size-fits-all. They may give small businesses more time to comply than big corporations, or allow some specific exemptions for certain business types or zones. Corporate lawyers pounce on these distinctions as violating “equal protection of the laws.” But often, compromises make a living wage possible in the first place.
So far, advocates of this new corporate strategy are losing in court. But they’re ready to take this fight to the top. The trade group spearheading the Seattle lawsuit flew the nation’s foremost (and probably the most expensive) corporate Supreme Court specialist across the country to argue the case in a local courtroom. So the corporate world is laying the groundwork for an appeal all the way to the top.
Corporations already have enough influence in government. The arguments for and against raising the minimum wage should be decided by the people and their elected representatives, not judges. And dubious constitutional theories of equal rights for corporations belong in history’s dustbin.
Ron Fein is the legal director of Free Speech for People. He filed a friend-of-the-court brief in the L.A. minimum-wage case.
