Is the Federal Minimum Wage Unconstitutional?


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."

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Published In: Constitutional Law Updates, Elections & Politics Updates, Labor & Employment Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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