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Constitutional Law

Is the Minimum Wage Unconstitutional? Two Senate Candidates Think So

Posted Oct 26, 2010 5:30 AM CDT
By Debra Cassens Weiss

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Two Republican Senate candidates are asserting that the minimum wage is unconstitutional, despite a unanimous U.S. Supreme Court decision to the contrary.

Senate candidates John Raese of West Virginia and Joe Miller of Alaska argue that Congress has no power to adopt a minimum wage, currently set at $7.25 an hour, Time magazine reports in a Case Study column by lawyer Adam Cohen.

“It sounds like a bizarre argument to make,” the column says. “The federal minimum wage has been around since Franklin D. Roosevelt signed the Fair Labor Standards Act in 1938. In 1941, the Supreme Court upheld it by a unanimous vote, in a decision written by a Republican justice. Among legal experts, there is little real debate about the minimum wage's constitutionality.”

Striking down the minimum wage would require “a new kind of judicial activism” that endorses liberty of contract over government’s power to regulate the workplace, according to the article. At risk would be laws covering the right to join a union, the Occupational Safety and Health Administration, and even the Social Security system.

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