Is the federal minimum wage constitutional?

[A18]

It's clear from the context that laying a duty is a tax.

Among is not the same thing as in. In other contexts, sure, but not in this one.

An adequate or due portion as in what is adequate to qualify as a dollar. It has nothing to do with the value of work.

[khirkhib]

That's your opinion Philip. 
One that wouldn't be very convincing in the court of law. 

I reference you to McCulloch vs Maryland (1812)

". . . Although, among the enumerated powers of government, we do not find the word “bank” or “incorporation,” we find the great powers to lay and collect taxes; to borrow money; to regulate commerce; to declare and conduct a war; and to raise and support armies and navies . . . But it may with great reason be contended, that a government, entrusted with such ample powers . . . must also be entrusted with ample means for their execution. The power being given, it is the interest of the nation to facilitate its execution. . . . "

— Chief Justice John Marshall


Other things that this case has shown the constitution allows:

Congress to establish the United States Air Force
Congress to establish national parks.
Congress to create federal laws against pollution.
Congress to make laws regarding discrimination in employment
Congress to decide that televisions should have V-chips that enable parents to block certain shows
Congress to pass the Gun-Free School Zones Act prohibiting anyone from possessing a firearm in a school zone
Congress  to give licenses to broadcasters to play music on the radio.

People that espouse the constititionallity of this or the unconstitionality of that are generally pretty hypocrtical.   There really are no TRUE constructionists.  Just people who selectively use the constitution to justify  there (generally mean-spirited and unpopular) opinion.


And while you are homeschooling yourself today Philip you could learn a whole bunch more about the constitution and the supreme court at http://www.landmarkcases.org/ .  I think it would do your mind some good.

[John Dibble]

Khirkib - that 'duty' think is a stretch at best. Yes, some words have multiple definitions. So, let's extend your logic to the words surrounding duties in that clause:

tax
n.
A contribution for the support of a government required of persons, groups, or businesses within the domain of that government.
A fee or dues levied on the members of an organization to meet its expenses.
A burdensome or excessive demand; a strain.

By your logic, government can lay and collect burdensome or excessive demands and strains.

impost
n.
Something, such as a tax or duty, that is imposed.
Sports. The weight a horse must carry in a handicap race.

So, by your logic, the government can lay and collect the weight a horse must carry in a handicap race.

excise
n.
An internal tax imposed on the production, sale, or consumption of a commodity or the use of a service within a country: excises on tobacco, liquor, and long-distance telephone calls.
A licensing charge or a fee levied for certain privileges.

Now this one is pretty clear - it's a tax or fee of the monetary variety.

Now, seeing how both tax and impost have more than one definition, yet both are pretty much a tax as we know it, and because excise is clearly a tax or fee, we can use simple context clues to determine that duty is referring to a tax, not a moral duty.

Oh, and just to further go against your logic, here's some other definitions of 'duty':

A service, function, or task assigned to one, especially in the armed forces: hazardous duty.
Function or work; service: jury duty. See Synonyms at function.
A tax charged by a government, especially on imports.

The work performed by a machine under specified conditions.
A measure of efficiency expressed as the amount of work done per unit of energy used.
The total volume of water required to irrigate a given area in order to cultivate a specific crop until harvest.

Now, let's ask ourselves, do any of these apply in context? I think the obvious answer is no.

So how about we stop trying to make things mean something they don't?

[A18]

"Gee, Congress can coin money, so I guess it can make a minimum wage." You are a complete hack.

[Erc]

McCulloch v. Maryland just gives a bit more weight to the "necessary and proper" clause of I.8.18.   The ends of the legislation still have to be for the purpose of implementing one of the implicit powers in I.8.1-I.8.17.


So lets take a look, shall we?  Does the minimum wage work towards a goal stated in other parts of Section I.1.?

Clause 1:  The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

Congress has the power to tax.  Whoop-de-do.  Now if Congress set up some sort of weird legislation whereby corporations were taxed and this money were distributed to workers receiving below the minimum wage, then maybe.


Now, if you have the reading comprehension of a four-year-old and some sharp selective reading skills, you could look at it this way:

The Congress shall have Power To...provide for the common Defence and general Welfare of the United States...

In context, of course, this makes no sense, and is bloody vague and doesn't actually grant Congress any powers to fulfill those ends.  Well, other than the taxation bit we just cut out.  So we can't justify it under the general welfare clause as its only talking about taxes here.

Clause 3.  The interstate commerce clause.  Interstate.  Congress can arguably impose a minimum wage on interstate business/activity, but on businesses in one state only?  Nope.

Clause 5.  Don't make me laugh.


And what about these other laws that you cite?


Congress to establish the United States Air Force
   The Air Force can be interpreted as one of the "Armies" in Clause 12.  [It's not like we couldn't have kept it under the Army anyway...]

Congress to establish national parks.
In the end, this comes down to a matter of federal land, which the government has the right to regulate in the manner it sees fit.  Not explicitly stated, but it's bloody obvious and strongly implied by Clause 17.  Whether government has the right to seize private property (through eminent domain) for such purposes is not clear and is therefore likely to be unconstitutional.

Congress to create federal laws against pollution.
Put a tax on it.  Allowed by I.1.

Congress to make laws regarding discrimination in employment.

Interstate commerce clause / 14th Amendment covers a lot of situations.  Otherwise, that's what amendments are for.

Congress to decide that televisions should have V-chips that enable parents to block certain shows

Interstate Commerce Clause (as most broadcasts pass over state boundaries in some form or another)

Congress to pass the Gun-Free School Zones Act prohibiting anyone from possessing a firearm in a school zone.

Business of the states.

Congress to give licenses to broadcasters to play music on the radio.

Interstate Commerce clause (see above).



The constitution is the law of the land.  Like it or amend it.  Don't disregard it and leave it by the wayside.  [Not to get partisan or anything, but we can probably blame FDR for our current attitude towards the Constitution, which, other than the 1st, 5th, and 14th Amendments (plus the procedural businesses from the actual Constitution) doesn't really matter anymore.  Heck, the 14th doesn't even matter anymore...]

[The Duke]

I disagree with Khirkhib on two points.

His interpretation of "duty" is so radically divorced from the intent of the authors as to immediately disqualify itself.  Context provides all you need to know about what "duty" is meant to mean.

Fixing weights and measures does no include fixing economic valuations, and again this is such a stretch relative to the intent of the authors as to render itself invalid on its face.

I agree with Khirkhib, and strongly disagree with Philip, on one point.

Unless you wish to regard the labor market as divorced from commerce, you must regard labor as commerce.  Unless you believe that the labor market is divorced from interstate commerce, you must admit that the Congress has the power to regulate it.  If one maid drives from the Bronx to Western Connecticut to clean homes for minimum wage, you have interstate commerce.  The regulation of minumum wages is part of the Cogress's right to regulate interstate commerce, and is therfore constitutional.

[John Dibble]

Unless you wish to regard the labor market as divorced from commerce, you must regard labor as commerce.  Unless you believe that the labor market is divorced from interstate commerce, you must admit that the Congress has the power to regulate it.  If one maid drives from the Bronx to Western Connecticut to clean homes for minimum wage, you have interstate commerce.  The regulation of minumum wages is part of the Cogress's right to regulate interstate commerce, and is therfore constitutional.

It's possibly constitutional, but it would depend on the case. If I worked in a restaraunt in my own local town, not crossing state borders, my labor is not interstate commerce, so it would be unconstitutional to impose federal minimum wage on my employer.

[khirkhib]

You are right John Ford and Clause 3 is the one that is used, generally, when arguing for minimum wage.  My other two examples were, well for more justification and fun.
 
If  the government wanted to collect the weight a horse must carry in a handicap race, well I say that if it makes a better country and it promoted the general welfare, why not.  The constition certainly doesn't prohibit them from doing so.  Who am I or you for that matter to say with any real degree of certainty what our fore fathers were thinking when the put the constitution together 200 years ago.  I can tell you one thing for certain though they had the foresight to know that situtation would arise that would necessitate the government a degree of flexibility.  Our modern world is not what it was 200 years ago so I'll give them some latitude.  Though today all Americans are free.  We now do count Indians and African Americans are no longer considered 3/5ths of a person.

And as hack as you may think I am.  You and I know that I have the winning arguement.  I have the arguement that has won in the Supreme Court. 

more later

 

[John Dibble]

And as hack as you may think I am.  You and I know that I have the winning arguement.  I have the arguement that has won in the Supreme Court. 

And we all know the Supreme Court is infallible, perfect, and has never made a bad decision.

[khirkhib]

No, I'm not saying that the supreme court isn't infallible but I'm also not claiming that the framers of the constitution were infallible in the creation of the constitution and specific mentioned every piece of legislation that would ever need to be used by the federal government.

[The Duke]

You are right John Ford and Clause 3 is the one that is used, generally, when arguing for minimum wage.  My other two examples were, well for more justification and fun.
 
If  the government wanted to collect the weight a horse must carry in a handicap race, well I say that if it makes a better country and it promoted the general welfare, why not.  The constition certainly doesn't prohibit them from doing so.  Who am I or you for that matter to say with any real degree of certainty what our fore fathers were thinking when the put the constitution together 200 years ago.  I can tell you one thing for certain though they had the foresight to know that situtation would arise that would necessitate the government a degree of flexibility.  Our modern world is not what it was 200 years ago so I'll give them some latitude.  Though today all Americans are free.  We now do count Indians and African Americans are no longer considered 3/5ths of a person.

And as hack as you may think I am.  You and I know that I have the winning arguement.  I have the arguement that has won in the Supreme Court. 

more later

But the Supreme Court didn't side with you because they think "duty" means a moral obligation.  They sided with you for the same reason I did, because labor is interstate commerce.

Unless you wish to regard the labor market as divorced from commerce, you must regard labor as commerce. Unless you believe that the labor market is divorced from interstate commerce, you must admit that the Congress has the power to regulate it. If one maid drives from the Bronx to Western Connecticut to clean homes for minimum wage, you have interstate commerce. The regulation of minumum wages is part of the Cogress's right to regulate interstate commerce, and is therfore constitutional.

It's possibly constitutional, but it would depend on the case. If I worked in a restaraunt in my own local town, not crossing state borders, my labor is not interstate commerce, so it would be unconstitutional to impose federal minimum wage on my employer.

If I hire a worker from in state, its the substituted effects doctrine (Wickard v. Filburn).  It one worker I DIDN'T hire from out of state, and therefore qualifies as interstate commerce by detracting from said commerce.

Furthermore, the 14th Amendment guarantees the state shall safeguard the right of equal protection for all citizens within each state.  If a maid lives in New York, but works in Manhattan for a federal minimum wage of $5.15 p/h, and a second maid lives in Connecticut and works for a state minimum wage that may be loewr, the second maid has been deprived of equal protection of their ability to market their labor.  In reality, Connecticut's minimum wage is $7.10, but for arguments sake, lets say its not.

[??????????]

Federal parks are unconstitutional unless the state that the park is in approves of it. The government has no right to seize land from states for military bases, parks, or whatever "Government property" garbage they want to make.

[khirkhib]

I know Ford, I understand why.  The others were just example of interpretation and I wrote them down before I looked up the specific court case but thank you for agreeing that the minimum wage is constituional.

[A18]

Labor is always in one particular state. There's nothing interstate about it.

[John Dibble]

Federal parks are unconstitutional unless the state that the park is in approves of it. The government has no right to seize land from states for military bases, parks, or whatever "Government property" garbage they want to make.

Agreed. If a state approves of it, it could be considered constitutional under the 10th Amendment. However, I would prefer non-military facilities like parks to be run by the states, or even better yet by concerned private interests.

[Fmr. Gov. NickG]

Since the 1930's, the Supreme Court has consistantly ruled that the federal government can, under the commerce clause, basically regulate anything even peripherally realted to commerce.  A couple of statutes have been struck down by our current, more conservative court, because they really had nothing to do with commerce.  But I don't know of any recent cases where a federal statute had been struck down for being insufficiently "interstate".  Even the most conservative of judges have basically adopted the FDR Court framework on this issue.

[A18]

Since the 1930's, the Supreme Court has consistantly ruled that the federal government can, under the commerce clause, basically regulate anything even peripherally realted to commerce.  A couple of statutes have been struck down by our current, more conservative court, because they really had nothing to do with commerce.  But I don't know of any recent cases where a federal statute had been struck down for being insufficiently "interstate".  Even the most conservative of judges have basically adopted the FDR Court framework on this issue.

We're debating whether the Supreme Court is right or not; not what it ruled.

The Supreme Court has never ruled on the side of states' rights.

[John Dibble]

Since the 1930's, the Supreme Court has consistantly ruled that the federal government can, under the commerce clause, basically regulate anything even peripherally realted to commerce.  A couple of statutes have been struck down by our current, more conservative court, because they really had nothing to do with commerce.  But I don't know of any recent cases where a federal statute had been struck down for being insufficiently "interstate".  Even the most conservative of judges have basically adopted the FDR Court framework on this issue.

We're debating whether the Supreme Court is right or not; not what it ruled.

The Supreme Court has never ruled on the side of states' rights.

Not for a long time anyways.

[The Duke]

Since the 1930's, the Supreme Court has consistantly ruled that the federal government can, under the commerce clause, basically regulate anything even peripherally realted to commerce. A couple of statutes have been struck down by our current, more conservative court, because they really had nothing to do with commerce. But I don't know of any recent cases where a federal statute had been struck down for being insufficiently "interstate". Even the most conservative of judges have basically adopted the FDR Court framework on this issue.

We're debating whether the Supreme Court is right or not; not what it ruled.

The Supreme Court has never ruled on the side of states' rights.

Not for a long time anyways.

Actually, the Rehnquist Court scaled back the commerce clause significantly in repealing portions of the Violence Against Women Act (Morrison, I think), the Gun Free School Zones Act (Lopez), and expanded the 10th Amendment when removing part of the Brady Bill (Printz).

Labor is always in one particular state. There's nothing interstate about it.

Really?  What about the maid in Manhattan who goes to Connecticut to work, or a truck driver who's paid to drive across state lines.  Labor is not only interstate, it is international.  See all the farm laborers who come from Mexico to California to work.  To suggest that labor is ALWAYS intrastate commerce is to have no understanding of the labor market.

[A18]

Then those people would fall under Congress's jurisdiction, but not someone working at the local 7-Eleven.

[Mikem]

Then those people would fall under Congress's jurisdiction, but not someone working at the local 7-Eleven.

so basically you are saying that workers that travel over state lines should be paid a minimum wage, but others would be at market rate.    A state labor tariff is essentially what you are saying.  This would gouge population mobility and be extremely detrimental you interstate commerce.

[A18]

I said it's constitutional; that's different from saying it's a good idea.

[Fmr. Gov. NickG]

The distinction about whether a particular instance of commerce is sufficiently "interstate" to warrant federal regulation is really pretty arbitrary in modern society.  We live in a national, if not global, economy.   Most people work for companies with a presence in many states, most produce things that bought in many states, or regularly do business with people in other states, or even travel across state lines to get to work. 

To exempt that small percentage of people whose business is completely contained within a single state from any federal regulation would be unjust, overly complicated, and create perverse economic incentives.  At some point, the literal constitutional wording must bow to reality.   Even most conservatives recognize this in applying federal regulation to all commerce, even though some portion may not be interstate.  Not to do so would be counter to both the stereotypically liberal goal of equality and the stereotypically conservative goal of efficiency (i.e. economic growth).

[A18]

The vast majority of people work only in one state.

Just because your company sells stuff in another state doesn't mean your wage is interstate commerce.

[Fmr. Gov. NickG]

The vast majority of people work only in one state.

Just because your company sells stuff in another state doesn't mean your wage is interstate commerce.

Sure it is....you are involved in the "stream of commerce," which is the relevant legal term of art.  Commerce is not simply the transfer of good across state lines, it is the entire process of economic production.