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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