“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties.

When the city of Birmingham raised the local minimum wage, the state quickly responded with a law nullifying the ordinance (the Minimum Wage Act, or “MWA”). Two working people who would have seen a raise, joined by other individuals and civil rights organizations, sued the state attorney general (AG). They argued that the law had both the purpose and intent of discriminating against African Americans. In a 7-5 opinion authored by Eleventh Circuit Trump judge Kevin Newsom and joined by both of Trump’s other appointees participating in the case, Elizabeth Branch and Britt Cagle Grant, the full court reversed a panel decision and ordered the case dismissed on procedural grounds. Trump’s judges cast the deciding votes. They denied Birmingham residents and civil rights organizations their day in court, and they blocked consideration of the law under a provision of the Constitution specifically designed to remedy racial injustice. The December case is Lewis v. Governor of Alabama.

The majority held that the plaintiffs did not have standing to file their Equal Protection lawsuit against the state AG because he does not enforce the state Minimum Wage Act. Newsom wrote that the ban governed contracts between private parties and had no provision giving the AG authority to enforce it.

But as Judge Charles Wilson pointed out in the main dissent (joined by Judges Beverly Martin, Adalberto Jordan, Robin Rosenbaum, and Jill Pryor), the state MWA contains no provision for the private enforcement contemplated by the majority. In contrast, the state AG has broad authority to enforce laws such as the MWA.

Moreover, the dissenters set forth how the AG had already shown his role in enforcing the law. Specifically, the same day that the city increased its minimum wage, the state AG issued a press release to “prevent [the] disruption” to the local economy that the ordinance would supposedly create. He told local businesses that they could freely violate the new minimum wage. He announced that the increase was “unreasonable” and therefore could not take effect immediately “despite the terms of the ordinance.” He added that the state legislature was “currently addressing” the issue and that it would likely be “resolved shortly without adversely affecting the citizens of Birmingham.” Given the AG’s assertive role in preventing the ordinance from being enforced, it was certainly reasonable to expect him to enforce the state law, making him a reasonable choice as defendant.

Judge Newsom gave an additional reason for dismissing the case: Even if the court were to strike down the state ban, the plaintiffs likely wouldn’t get their raises anyway because newly elected city officials would not necessarily enforce the local minimum wage ordinance. As the main dissent observed, “We are not in the business of assuming that a local government will not enforce its own laws…”

In an additional dissent, Judge Jordan (joined by the other four dissenters) observed that the issue of standing goes far beyond whether the employees get their raise under the local ordinance. The plaintiffs allege that the state law transferred political power from the majority-Black Birmingham City Council to the majority-white state legislature in order to make it harder for African Americans to use the electoral and political process to pass local laws their community favors. The plaintiffs alleged intentional discrimination that violated the Fourteenth Amendment, the Fifteenth Amendment, and the Voting Rights Act. Judge Jordan wrote that the majority focused much too narrowly in assuming that the plaintiffs would get full relief if they got the raises contemplated by the Birmingham ordinance.