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

(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 Robert’s 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.