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Is The Minimum Wage Unconstitutional?

No, and no.Minimum Wage

But, a few candidates (also reported here) for the United States Senate have gone on the record as being of the opinion that it is, despite unambiguous holdings by the U.S. Supreme Court that both state and federal minimum wage laws are perfectly constitutional. The case upholding the federal minimum wage was unanimous, and over the past 70 years or so, under Courts of widely varying political and judicial philosophies, there has been no serious move to overturn either of those cases. Virtually every Supreme Court justice, regardless of their liberal or conservative leanings, views those cases as well-settled law. Even in today’s court, an argument that the minimum wage is unconstitutional is unlikely to fall on sympathetic ears.

I should note that there is some disagreement among economists as to whether or not the minimum wage is good policy, and whether it makes economic sense, but I won’t be discussing that issue here, mainly because I’m not an economist, and this is not an economics blog.

So, what are the possible arguments that the minimum wage is unconstitutional? Well, it boils down to the nature of the federal government, and its constitutional power, compared to the constitutional power of state governments. Basically, the constitution sets up a federal government of enumerated powers. This means that it expressly grants certain powers to the federal government, and denies it the rest. So, in theory, if the federal government does something which it isn’t specifically authorized to do, that’s unconstitutional. Under the 10th Amendment, all other powers not granted to the federal government are granted to the states, unless it specifically prohibits the states from doing something.

So, this means that the federal government can only do that which is expressly permitted. And state governments can do anything which is not expressly forbidden.

Now, if you look through the constitution, you won’t see anything that authorizes the federal government to impose a minimum wage on private employers. So, that’s the end of the debate, right? Not even close. In fact, the federal government does a ton of stuff that isn’t specifically authorized under the constitution. So, what’s the deal?

Many, if not most, of the constitution’s grants of power to the federal government are extremely vague and broad. For example, one of the things Congress is allowed to do is regulated interstate commerce. Unfortunately, the Founding Fathers didn’t see fit to tell us what that means, nor did they think to place a copy of This is What We Meant: A Guide to Constitutional Interpretation from the Authors in the Library of Congress. That would have been nice of them, but alas, it was not to be.

What they did leave us, however, is a Supreme Court whose job it is (among a few other things) to be the final arbiter of what interpretation of the Constitution is the correct one. Since the Great Depression, the Supreme Court has gradually expanded the scope of power granted to the federal government under the Commerce Clause. At this point, it grants the power to regulate virtually any economic activity that might affect something in another state. In this interconnected day and age, that includes basically everything.

With that in mind, there can really be no doubt that establishing a minimum wage is well within the federal government’s power. Some constitutional scholars believe (and their argument is certainly not frivolous) that the Supreme Court has expanded the federal government’s regulatory power far beyond anything that the Founders intended. This may or may not be true, but the fact remains that

I don’t doubt that these Senate candidates are perfectly aware of this fact, and were likely playing to their “Tea Party” base.

But for any employers who want to test the law, they should know that the federal minimum wage is $7.25 per hour (your state may have a higher minimum wage, which you are also bound by), and that LegalMatch case data from the past several months shows that alleged wage and hour violations by employers are still very common. And while these cases might not net plaintiffs a lot of money, typically little more than back wages and possibly attorney’s fees, wage and hour violations are comparatively easier to prove than many of the other common employment causes of action, such as discrimination and harassment.

So, if you’re an employer, and don’t think you should have to pay your employees the minimum wage, you’re certainly entitled to your opinion. And it’s your right to vote for candidates who promise to eliminate or reduce the minimum wage, if you want. But if you decide to make a stand against the minimum wage laws that you view as unjust, prepare to face the likely consequences: a trip to court, a court order requiring you to pay your employees any back pay that they’re owed, their attorney’s fees, and possibly punitive damages.

In the long run, it will probably prove much easier and cheaper to simply pay your employees at least the minimum wage.

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  • NeilBJ

    “In fact, the federal government does a ton of stuff that isn’t specifically authorized under the constitution. So, what’s the deal?”

    The deal is, or rather, the raw deal is that the Supreme Court has gradually eviscerated the Constituion and thus our freedoms.

    The Supreme Court has gone overboard in expanding the powers of the federal government. The only purpose of a constitution is limit the power of the federal government.

    When interpreting the Constitution, the first question a justice ought to ask himself is: “Will my decision increase the power of the federal government?”

    If his honest answer is yes, then his ought to change his decision to conform to the “limited power” philsophy.

    The Court certainly has not followed this philosophy with regards to the Commerce Clause. They have found every tenuous excuse to use the Commerce Clause to justify virtually anything the federal government wants to do regarding regulating economic activity. How absurd can it be when they rule that activity that does not cross states lines is covered by a clause the only permits regulating activity that does cross state lines?

    Why did the writers enumerate the powers granted to the federal government and cement that philosphy with the 10th amendment, if their intent was to write a document that allowed expansive interpretations?

  • John Richards

    “When interpreting the Constitution, the first question a justice ought to ask himself is: “Will my decision increase the power of the federal government?””

    That’s hardly self-evident. But I tend to agree with that philosophy. This post was more about the intellectual dishonesty of people claiming that the minimum wage is unconstitutional, which it clearly is not.

  • Unconstitutional

    You are equating Supreme Court jurisprudence with Constitutional Law, which is ridiculous. Just because the Supreme Court decided, after consistently and correctly holding that minimum wage law was unconstitutional, that it is now constitutional, does not mean that the Constitution now permits such law.

    Such interpretation of the Commerce Clause is unreasonable, because minimum wage law “impairs the obligation of contracts” between an employer and an employee. An ambiguous power, like the one to regulate commerce, cannot reasonably be interpreted to override a power that is unambiguously prohibited, like the interference with contracts.

    The Constitution should not be interpreted by asking what the law should be but by asking what it IS. Therefore, those of us who believe that the minimum wage law is unconstitutional, believe that the Supreme Court Justices should wake the fuck up and stop turning their desired policies into non-existent Constitutional text.

    In other words, we hope that the Constitution will be interpreted correctly, overruling any decisions that have permitted minimum wage laws to exist.

  • LogicallyAccurate

    Not only is it not constitutional for the government to tell someone how much to sell his services for, but minimum wage laws create unemployment. Putting a minimum price on any product causes products that are worth less than that minimum price to remain unsold. This video illustrates perfectly, the unintended consequences of minimum wage laws:

  • LogicallyAccurate

    “Unfortunately, the Founding Fathers didn’t see fit to tell us what that means, nor did they think to place a copy of This is What We Meant: A Guide to Constitutional Interpretation from the Authors in the Library of Congress”

    But we do have the writings from the founding fathers. So we do have an idea about what they had in mind. Do we think Thomas Jefferson meant for the federal government to get involved in the trade of goods and services between citizens?

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