INTERSECTIONALITY SQUARED: INTRASTATE MINIMUM WAGE PREEMPTION & SCHUETTE'S SECOND-CLASS CITIZENS.

• Author: Johnson, Alexsis M.

INTRODUCTION

Between 2012 and 2017, more than twenty municipalities passed ordinances providing for extended labor protections for their residents like paid sick leave and higher minimum wages. (1) Often these municipalities and their governing bodies have been more liberal and racially diverse than their respective legislatures. (2) In some of the states where municipalities have succeeded in passing this legislation, the state legislature has very quickly preempted those measures with a state law dictating that no city can set a minimum wage higher than the federal standard of $7.25 an hour. (3) These state laws banning cities from raising the working wage constitute intrastate minimum wage preemption. The lawmakers preempting these local reform efforts proffer to justifications for the bills rooted in economics and federalism. (4) However, these preemptive measures raise consequential questions related to the due process of lawmaking and equal protection jurisprudence more generally. (5)

This Note applies an intersectional analysis to the ongoing conservative strategy of intrastate minimum wage preemption (6) to reveal one example of how such preemptive measures limit progressive change, and especially burden Black women and women of color. Ultimately, this Note identifies two significant phenomena--or "intersections"-- that, together, amount to what this Note will call Intersectionality Squared. The first intersection arises directly out of conventional intersectional theory: the intersection of multi-faceted identities of the women of color themselves and the social factors causing disproportionately high employment of women of color in minimum-wage jobs. (7) The second phenomenon contributing to Intersectionality Squared is an intersection in the less theoretical sense of the word: a temporal intersection of the current political strategy of minimum wage preemption and the Supreme Court's recent decision narrowing the political process rationale in equal protection law as an avenue to curb intersectional discrimination. (8)

This Note examines both of these consequential intersections and reveals how they converge into Intersectionality Squared. The ultimate objective herein is the illumination of how the intrastate minimum wage preemption strategy goes beyond an issue of identity politics and, instead, results in a pattern of legal erasure which further renders legally uncognizable the ways in which Black women and women of color experience discrimination. (9) This Note does not intend to argue that all instances of intrastate preemption raise constitutional concerns, nor does this Note intend to imply that all instances of intrastate minimum wage preemption necessarily pose a threat of a political process constitutional violation. Rather, this Note argues that where localities enact ordinances or regulations that work to the benefit of women of color and the state legislature responds with a political restructuring that invalidates or preempts those local ordinances, courts should consider the disparate impact on women of color as circumstantial evidence which weighs against the constitutional validity of a political restructuring. (10)

Part I of this Note discusses recent examples of intrastate minimum wage preemption and the case Schuette v. Coalition to Defend Affirmative Action, Integration & Immigrant Rights & Fight for Equality by Any Means Necessary (BAMN), which concerns the future of the political process doctrine challenging such measures. (11) Part II applies an intersectional analysis to an open appeal challenging intrastate minimum wage preemption in Birmingham, Alabama to demonstrate how a single-axis equal protection analysis of intrastate minimum wage preemption obscures the way in which such preemption more severely burdens women of color. Part III identifies the potential doctrinal openings that remain to assert intersectional political process doctrine claims and makes recommendations for how the Court might more adequately acknowledge intersectional harms moving forward.

1. The Battle over Local Power and the Constitutional Limits of Political Restructuring

   Cities and localities have played an integral role in recent efforts to raise the minimum wage and expand benefits for workers beyond those mandated by federal law. (12) The power cities have to regulate the health and safety standards of their community, determine monetary compensation and benefits for city employees, and set the terms of contracts, leases, and agreements with firms and large developers, position city governments to effectuate higher working wages and greater labor protections for their constituents. (13)

   Indeed, in recent years cities across the United States have leveraged their regulatory power and influence to pass progressive legislation regulating issues from bans on employer inquiries into an employee's previous wage history, to campaign finance reform, and even single-use plastic bags. (14)

   Within the last five years, however, approximately half of the states in the country have passed laws expressly preempting localities from adopting laws that, among other things, raise minimum wages, provide leave benefits, or expand workplace anti-discrimination protections past requirements set by federal or state law. (15)

   This Part examines contemporary use of political restructuring in the ongoing partisan conflict over local power. Section I. A. provides an overview of the political process rationale for invalidating political restructuring that especially burdens minorities and examines the seminal cases in the Supreme Court's political process doctrine. Section I.B. examines the Supreme Court plurality opinion in Schuette v. BAMN, which calls into question the future of the political process doctrine. Section I.C. then turns to a recent example of intrastate minimum wage preemption in Birmingham, Alabama which raises issues that implicate the political process doctrine.

   1. The Political Process Doctrine & Schuette v. BAMN

      While the contest continues between states and various localities over the question of which governmental body should wield final regulatory authority in a number of areas, the remaining legal avenues to challenge intrastate preemption measures that disproportionately affect minorities and other marginalized groups hang in the balance. The facts around the preemptive measures in states like Alabama, Missouri, and Wisconsin implicate issues that may have previously triggered strict scrutiny under the political process doctrine; however, the recent plurality decision in Schuette v. Coalition to Defend Affirmative Action, Integration & Immigrant Rights & Fight for Equality by Any Means Necessary (BAMN) rendered the future of the doctrine unclear. (16) The next two sub-sections provide an overview of the theory underlying the political process doctrine and trace the development of the doctrine through the new test for detecting impermissible political restructuring announced by the Court in Schuette.

      1. The Political Process Doctrine

         In addition to the conventional equal protection doctrine, which mandates that courts evaluate legislation that makes racial and gendered classifications under strict scrutiny, (17) the Supreme Court has also articulated a second strand of equal protection jurisprudence known as the political process rationale or the political process doctrine. (18) The "simple but central principle" embodied by the political process doctrine is that the state may not make it more difficult for certain minorities to achieve legislation that is in their interest by placing special burdens on minorities within the governmental process. (19) Though each of the Supreme Court cases that explicitly invoke the political process doctrine involved questions of whether a political restructuring amounted to an instance of race-based discrimination, the political process rationale has also been invoked by lower courts in the interest of discrete minority groups not recognized as protected classes under the Fourteenth Amendment. (20) Perhaps the most notable difference between the conventional equal protection doctrine and the political process doctrine is the absence of an explicit intent requirement from the latter. (21)

         The political process doctrine instructs courts to identify and scrutinize state actions, decision making structures, and schemes that place "special burdens" on minorities seeking to advocate for their interests through the political process. (22) Under the political process rationale, political restructurings are inherently atypical; at a minimum, they signal the intention of the political majority to alter or circumscribe the usual legislative process. (23) As Courts have examined facially neutral political restructurings under more careful scrutiny to protect against entrenched or concealed discrimination against minorities. (24) The Court has previously applied the doctrine to invalidate political restructuring that singles out a disadvantaged or minority group as the only group that must undertake atypical or additional steps--like obtaining a city charter amendment, state constitution amendment, or ballot initiative--as a precursor to enact legislation in favor of group interests. (25)

         An application of the political process doctrine may invalidate a political restructuring that shifts decision-making power regarding a particular issue from one kind of process to another. (26) A court may also find that a shift of decision-making power from one level or branch of government to another level, like a state charter amendment prohibiting localities from passing legislation to curb racial discrimination in real estate, is similarly impermissible. (27)

      2. The Pre-Schuette Political Process Doctrine

         Many scholars and courts read the two cases Hunter v. Erickson (28) and Washington v. Seattle School District (29) together to establish the "Hunter/Seattle" political...