The new pants dance

Dear R,

I hope your semester is going well. I’m being re-radicalized by my Job Law class. I’d totally forgotten why I loved collective bargaining more than anything, and why I got frustrated with the current manifestations of consumer activism, and then I remembered.  Maybe I’ll type that on my computer some other day when I’m supposed to be writing a case study.

Today, though, while I am supposed to be writing a case study, I want to talk to you about political economy vs. um, the actual economy. True fact, which you may well know: domestic and agricultural workers are excluded from basically all federal worker-helping programs, eg, unemployment, rights to organize, etc.

Why is this? Well, during the New Deal, the Democrats were part Rooseveltians and part the party that empowered Strom Thurmond. The latter wasn’t going to vote with the former on anything that raised the social wage of southern black workers, and so we get a fucked-up compromise.

OK. HISTORY LESSON OVER. LAW LESSON BEGINS.

My friend, if you are going to challenge a law of the United States or its pet states as unconstitutional, you will run into the three-tiered review system developed over the years by the SCOTUS of us. Essentially:

(A)If a law (1)violates a fundamental right or (2)messes with a protected (historically and systematically disadvantaged) class, it gets Strict Scrutiny which basically means it has to be the only way to achieve an overwhelmingly important governmental interest.

(B)If a law does not do either of those things, it just gets rational review, which means it has to be a nominally defensible way to deal with some legitimate government interest.

(C)If a law is about ladies, it’s somewhere in between. (I have more thoughts about intermediate review and what it does and should actually mean, but this is totally another discussion. I’d be very surprised if the current court used it for anything).

Anyway. Laws discriminating based on economic class don’t get strict scrutiny. I think they should, but I am also basically a cryptoMarxist. So the government only needs to advance a plausible rationale for the law.  (The fact that the law was ACTUALLY discriminatory doesn’t count either, there’s not a disparate impact claim under equal protection law. You have to actually show discriminatory intent. Which is nuts, of course). Right. Ok. So, basically this law is challenged in Fed. district court in California, Romero v. Hodgson in 1970. Government says, we are subsidizing agriculture, this is an ok way to do it, don’t bug us. (The dissent points out that Congress knows how to create an agricultural subsidy if that’s really what it wants to do, but not my point here.)

Anyway, the opinion basically comes out and says that political compromise on big legislation like this _is_ a legitimate government interest. That’s sort of shocking in the context of the history of this particular law, but I wonder if we’d tolerate that interpretation in other contexts. I don’t know. What do you think?

-v

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