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Article By:Michael J. Henry (/author/michael-j-henry)
(/author/michael-j-henry) Dinsmore & Shohl LLP(/organization/dinsmore-shohl-llp)
posted on: Wednesday, January 5, 2011
Constitutional Law / Labor & Employment /Litigation / Trial PracticeAll Federal
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Is the Federal Minimum Wage Unconstitutional?
(http://www.dinsmore.com)
The popularity of the Tea Party during the 2010 Election represents a growing movement
toward a stricter construction of the U.S. Constitution and a more limited federal
government. Relying on this ideology, several candidates questioned the constitutionality of
some of the most entrenched federal legislation, including the federal minimum wage.
Senate candidates Joe Miller of Alaska and John Raese of West Virginia both argued that
the federal minimum wage prescribed by the Fair Labor Standards Act of 1938 violates the
Tenth Amendment and usurps rights granted exclusively to the States. Although both
candidates ultimately lost in the general election, the popularity of the Tea Party may lead
to new challenges not only to whether Congress should establish a federally-mandated
minimum wage, but also whether Congress has the constitutional authority to do so.
The Tenth Amendment Argument
The arguments raised by Messrs. Miller and Raese follow the limited government ideology
that is a trademark of the Tea Party. In an ABC News interview, Miller stated that the
federal government should not be involved in setting a minimum wage because it is “not
within the scope of the powers given to the federal government.” In another interview, Miller
further explained his position, stating
"What I'd recommend that you do is go to the Constitution and look at the
enumerated powers because what we have is something that we call the 10th
amendment that says, look if it's not there if it's not enumerated, then it's
delegated to the states…Everything that's not there is reserved to the states and
the people."
Raese raised similar arguments, saying that the federal minimum wage represents
“government micromanaging and intervention into the private sector.”
The argument focuses on the Tenth Amendment, which provides that “[t]he powers not
delegated to the United States by the Constitution, nor prohibited by it to the States, are
reserved to the States respectively, or to the people.” Although Article I, Section 8 of the
Constitution grants Congress the power “to regulate commerce…among the several
states”, it does not contain a clause expressly authorizing Congress to prescribe a federal
minimum wage. Thus, opponents argue that because the Constitution does not expressly
give Congress the power to set a minimum wage, that power is reserved to the States.
The Supreme Court’s Rejection of the Tenth Amendment Argument
Nearly 70 years ago, the United States Supreme Court unanimously rejected this same
Tenth Amendment argument and upheld the constitutionality of the federal minimum wage.
In United States v. Darby, 312 U.S. 100 (1940),
(http://www.law.cornell.edu/supct/html/historics/USSC_CR_0312_0100_ZS.html) the Supreme Court
found that, although the Constitution does not expressly give Congress authority to
mandate a federal minimum wage, the Tenth Amendment does not deprive Congress of
“authority to resort to all means for the exercise of a granted power which are appropriate
and plainly adapted to the permitted end.” Id. at 124. The Court found that based on
Congress’s power to regulate interstate commerce, Congress could enact reasonable
legislation in furtherance of its policy of excluding from interstate commerce any goods
produced under substandard labor conditions. Thus, the Court held that the federal
minimum wage is not unconstitutional.
The Future of the Federal Minimum Wage
Although the 2010 Election revived some of the debate about the federal minimum wage,
this legislation has survived constitutional challenges for over 70 years and it is unlikely that
the Supreme Court will overruleDarby anytime soon. Furthermore, because the minimum
wage is one of the more popular pieces of federal legislation among both Republicans and
Democrats, it is also unlikely that Congress will repeal it. The vast majority of the States
have enacted their own minimum wages which either equal or exceed the federal minimum
wage.
The future of this argument will largely depend on whether the popularity of strict
construction and limited federal government continues to grow during the 2012
Congressional and Presidential Elections. If more candidates supported by the Tea Party
are elected in 2012 and, more importantly, if a Tea Party candidate wins the Presidency
and appoints like-minded Supreme Court Justices, we could see a more lively debate on
the issue in Congress and potentially a reversal of the Darby decision. However, for the
time being, the federal minimum wage appears to be safe.
© 2013 Dinsmore & Shohl LLP. All rights reserved.
About The Author
Michael J. Henry(/author/michael-j-henry)
Associate
Mike Hawkins is apartner in the Labor &Employment andAppellate Practice
Groups. He has extensive experience in all aspects of labor, employment law andERISA litigation and appellate practice. He has argued two cases in the U.S.Supreme Court and many in-state and Federal Courts of Appeals. He has beenselected by Best Lawyers as a top Labor & Employment lawyer every year since1989.
[email protected] (/[email protected])
502-581-8036www.dinsmore.com (http://www.dinsmore.com)
(http://www.natlawreview.com/ad/redirect/14781/t140?url=node/3499)
(http://www.natlawreview.com/author/michael-j-henry)
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