In a stunning display of judicial activism, one with far-reaching implications, a federal appeals court has ruled that the Alabama law Minimum Wage and Right-to-Work Act, which mandates a uniform minimum wage of $7.25 per hour throughout Alabama, may be unconstitutional. Finding that the Act, which toppled a Birmingham ordinance setting the minimum wage at $10.10 per hour, has a disparate impact on black workers, the court allowed a claim that the Act violates the Fourteen Amendment to proceed. The case is Lewis v. Governor of Alabama.
I don’t doubt that the Alabama law has a disparate impact on black workers in Birmingham. The record showed that the Minimum Wage Act denied 37 percent of Birmingham’s black wage earners a big pay hike, compared to only 27 percent of white wage earners.
But all kinds of laws, especially laws that entail standards, have a disparate impact on blacks. Most criminal laws do, because blacks violate them at higher rates than whites. So do laws banning preferential admission based on race.
Fortunately, the Supreme Court has ruled out Fourteenth Amendment claims based solely on disparate impact. It is only intentional discrimination by the state that the Constitution bans.
In the Birmingham minimum wage case, the Eleventh Circuit panel — consisting of two left-wing court of appeals judges and a George H.W. Bush appointed district court judge who approved one of the Carter Page FISA warrants — paid lip service to the requirement that more than disparate impact is required to establish a Fourteenth Amendment violation. But to find “more,” it descended into blatant speculation, second-guessing of the state legislature, racial stereotyping, and circular reasoning.
Before examining the “more” cited by the court, let’s consider two fallacies the court indulged in at the outset.
First, minimum wage laws are economic regulation. Sound economic reasons support not setting the minimum too high. In the absence of countervailing steps by affected businesses, a high minimum wage increases labor costs. Accordingly, it often leads to countervailing steps such as hiring fewer workers or eliminating part-time employees. A high minimum wage may force some firms out of business.
In some cities, probably including Birmingham, these “hidden” effects will fall more heavily on blacks than on whites. Thus, just as the black plaintiffs in Lewis challenged the state minimum wage law on racial grounds, other black plaintiffs — e.g., fired part-time workers — might be able to mount such a challenge to the Birmingham ordinance
What did the court say about the economic effects of raising or lowering the minimum wage? Nothing. It refused to consider them. “This is not the place to debate the Minimum Wage Act’s long term macroeconomic merits,” Judge Charles Wilson sniffed.
Why not? To prevail in this suit, plaintiffs will have to show that it was race, not economic considerations, that motivated the Alabama legislature to pass the Minimum Wage Act. Thus, it is wrong, in assessing whether plaintiffs have a case worthy of being tried, to rule out all consideration of the economic rationale for passing an economic regulation.
Second, though the court went looking for “more” than just disparate impact, it relied heavily on that impact in inferring discrimination. Note, however, that while the adverse effect of the Alabama law falls disproportionately on blacks, it also harms a great many whites. No one’s wage (white or black) is raised by the Minimum Wage Act, but 27 percent of white wage earners in Birmingham would lose a hefty chunk of their earnings as a result of it.
Thus, the disparate impact of the Act on blacks is, at best, very weak evidence that its enactment was racially motivate. Is it at all realistic to suppose that a modern Alabama legislature might be so racist as to slash the wages of many thousands of white workers just so it can slash the earnings of many thousands of black workers? Only strong evidence — either direct or powerfully circumstantial — that the legislature was racially motivated when it passed this economic legislation should suffice to make this case fit for trial.
With that in mind, let’s look at the evidence of supposed racial motivation relied on by the court. It is astonishingly weak.
First, the court cited the circumstances of the laws passage:
The Act was introduced by a white representative from Alabama’s least diverse area, with the help of fifty-two other white sponsors, and was objected to by all black members of the House and Senate. And it was accelerated through the legislative process in sixteen days with little or no opportunity for public comment or debate.
This is no rational basis for inferring racial motivation. Rather, it is a pernicious judicial intrusion into the legislative process. Indeed, accusing legislators of racial basis based on their race and/or the race of their constituents isn’t just the judicial equivalent of an ad hominen argument, it is racist.
The author of the court’s opinion, Judge Wilson, is African-American. By his reasoning, we should suspect that his opinion is influenced by his race. I don’t infer this — leftist identity-politics is probably the main culprit. But citing the race of the Act’s sponsors and opponents invites inferring racism anytime a public official, black or white, acts on a matter implicating race.
Citing the unified opposition of black legislators to the Minimum Wage Act is wrong for additional reasons. Black legislators can be expected to oppose any bill that has a disproportionate short-term impact on their constituents (most of whom, typically, are black). Thus, citing unified black opposition adds nothing to the evidence that the Act disproportionately affects blacks; it just underscores that fact. As we have seen, such evidence is legally insufficient to establish a Fourteenth Amendment violation.
In addition, the Lewis court has started down the road to giving African-American legislative caucuses a veto over legislation that implicates race. By standing united against such legislation, black legislators can now provide evidence for courts to use in striking down such legislation as unconstitutional. That’s profoundly anti-democratic.
So is the court’s willingness to infer wrongful motivation from the fact that the Act passed in 16 days. There’s no reason why sound economic legislation should take any longer to enact. In any event, it shouldn’t be the court’s job to judge how much time is necessary properly to consider a particular bill.
The court’s next reason for suspecting racial motivation is Alabama’s “deep and troubled history of racial discrimination” that has “consistently impeded the efforts of its black citizens to achieve social and economic equality.” The court cites “the historical origins of [Alabama’s] 1901 Constitution, plus a bunch of cases that are than three decades old.
The court fails to cite any modern instance of discriminatory legislation passed in Alabama. Its reliance on old history to support an inference of discrimination regarding contemporary economic legislation — similar to that adopted by 22 other states — is a sure indicator of the court’s desperation to keep this case alive for ideological reasons.
The court also gives its stamp of approval for the use of old history as a card to be played whenever blacks are unhappy with a piece of legislation. It’s reminiscent of the reliance on racist voting laws and practices from more than 50 years ago to strike down voting rules enacted in an entirely different environment. Recognizing that our country, including the Deep South, has changed, the Supreme Court has finally rejected this approach.
Judge Wilson concludes by informing us that “Today, racism is no longer pledged from the portico of the
capitol; it hides, abashed, cloaked beneath ostensibly neutral laws and legitimate bases, steering
government power toward no less invidious ends.” Again, this rationale can be used to allege racism, and explain the absence of supporting evidence, any time blacks are unhappy with a legislative (or other) outcome.
Judge Wilson’s argument does support looking at circumstantial evidence when considering whether intentional discrimination has occurred. But the analysis can’t be one-sided, excluding such facts as the obvious economic justification for an act and the fact that it harms a great many whites.
Nor should the analysis rely on a presumption, based on old history or current racial identity, that legislators are racially biased. Racial bias is what must be demonstrated. It cannot be assumed, not even at the summary judgment stage.
Finally, courts should minimize their intrusion into the work of legislators elected by the people. For example, they have no business opining on how long it should take to pass a bill.
Lewis v. Governor of Alabama sets the stage for widespread attacks on neutral, sensible legislation that conflicts with the imperatives of identity-politics and/or income redistribution, among other left-wing hobby horses. I hope the case will be reviewed by the full Eleventh Circuit. Even if the panel’s ruling is sustained, en banc review should generate dissent[s] and make this case a strong candidate for the Supreme Court to consider.