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Disclaimer. This news first broke in 1941. But it would be breaking news today for Joe Miller, Republican and Tea Party candidate for Senate from Alaska. Hopefully it will be of interest to others.

Joe Miller gave an interview on ABC News in which he said that the Federal minimum wage is Unconstitutional. Specifically, he said,

That is not within the scope of the powers that are given to the federal government

When asked to explain the legal basis for his conclusion he said,

"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," Miller said. "Everything that's not there is reserved to the states and the people."

Well, maybe not so much. In 1941 the Supreme Court, in a unanimous opinion in the case US v Darby Lumber Company upheld the Constitutionality of the Fair Labor Standards Act (FLSA), the law that established the Federal minimum wage. The FLSA also guaranteed time-and-a-half for overtime in certain jobs, and prohibited most employment of minors in "oppressive child labor."

Now Mr. Miller is entitled to the view that the minimum wage is bad policy and he may disagree with the Darby decision, but he is not entitled to the view that the law is Unconstitutional. As a guy who allegedly graduated from Yale Law School (what is it with these Yalies these days) he should know that since the decision in Marbury v Madison in 1803, it is settled law that the Supreme Court is the final arbiter on the question of whether a law is Constitutional. He can agree with or disagree with Supreme Court decision, but if the Court decides that a law is Constitutional that is the final word until such time as the Court reverses itself, which happens but rarely.

Now what about Mr. Miller's brilliant 10th Amendment insight. Did the Court ignore that issue in the Darby decision? Hardly. It was addressed straight on and ripped to shreds.

Our conclusion is unaffected by the Tenth Amendment, which provides:

"The 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."

The amendment states but a truism that all is retained which has not been surrendered. There is nothing in the history of its adoption to suggest that it was more than declaratory of the relationship between the national and state governments as it had been established by the Constitution before the amendment, or that its purpose was other than to allay fears that the new national government might seek to exercise powers not granted, and that the states might not be able to exercise fully their reserved powers. See e.g., II Elliot's Debates, 123, 131; III id. 450, 464, 600; IV id. 140, 149; I Annals of Congress, 432, 761, 767-768; Story, Commentaries on the Constitution, §§ 1907-1908. Bolding Added

Got that Mr. Miller and all you other tenthers, "The amendment states but a truism that all is retained which has not been surrendered."

The Court found ample basis for upholding the law in the Commerce clause of the Constitution. Here are a few select provisions in the opinion.

The power of Congress over interstate commerce "is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution." Gibbons v. Ogden, supra, 22 U. S. 196. That power can neither be enlarged nor diminished by the exercise or nonexercise of state power. Kentucky Whip & Collar Co. v. Illinois Central R. Co., supra. Congress, following its own conception of public policy concerning the restrictions which may appropriately be imposed on interstate commerce, is free to exclude from the commerce articles whose use in the states for which they are destined it may conceive to be injurious to the public health, morals or welfare, even though the state has not sought to regulate their use. Reid v. Colorado, supra; Lottery Case, supra; Hipolite Egg Co. v. United States, supra; Hoke v. United States, supra.

This is a very sweeping view of the Constitution, which though slightly eroded by subsequent decisions is still largely intact. And here the Court discusses the motive for the law which is as valid today as when it was enacted in 1938

The motive and purpose of the present regulation are plainly to make effective the Congressional conception of public policy that interstate commerce should not be made the instrument of competition in the distribution of goods produced under substandard labor conditions, which competition is injurious to the commerce and to the states from and to which the commerce flows. The motive and purpose of a regulation of interstate commerce are matters for the legislative judgment upon the exercise of which the Constitution places no restriction, and over which the courts are given no control. McCray v. United States, 195 U. S. 27; Sonzinsky v. United States, 300 U. S. 506, 300 U. S. 513, and cases cited.

So Mr. Miller, you may want to go to a world prior to 1803, when there was no arm of government that was the final voice on the meaning of the Constitution, a world where every law was Constitutional or Unconstitutional depending on who you asked, a world in which uncertainty and gridlock could have ruled. Or you may want to go back to a world prior to 1941 when it was not clear whether the FLSA and its provisions governing the minimum wage where Constitutional. But one thing you cannot do, is claim that those issues have not been decided. I would have thought you would have learned that in your Yale Law School if not earlier in your eighth grade civics class.

Beyond Mr. Miller, and the baggers' deficiencies in civics education, there is a larger concern. Most Federal laws governing economic activities are grounded at least in part in the authorities of Congress derived from the Commerce Clause. The right and their supporters in the Supreme Court have been attacking the Commerce Clause for years. That attack can be seen in Miller's argument where he would basically say all commercial activity can only be regulated by the states. That's food, drugs, health, safety, civil rights, ADA, you name it. The stakes are huge. Hardly any aspect of our lives would be unaffected if they had their way. They would take us back to the pre-Constitution days of the Articles Of Confederation. There is a special irony in their arguments since the absence of power to regulate commerce between the states was one of the principle reasons why the Articles were replaced by our current Constitution.

The Republicans and their bagger faction would love to undo a Century of progressive Federal legislation. The stakes in this and every election are high. Please encourage all your friends to vote and do what ever else you can to get out the vote.

Cross posted at

Originally posted to September 17, 1787 on Thu Oct 07, 2010 at 11:12 AM PDT.

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