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Anticipation in the Capitol - 4/26/2012 11:38 am

Election Commission finds 1/2 of precincts ran out of ballots; recommends no investigation - 4/25/2012 5:08 pm

Miller and the minimum wage

From Lisa Demer in Anchorage --

Among the federal powers being questioned by U.S. Senate candidate Joe Miller: the right to establish a federal minimum wage.

Miller — a Fairbanks Republican with a Yale law degree — told two national political reporters while in Washington, D.C., last week that since the U.S. Constitution doesn’t specifically provide for a minimum wage, the federal government has no right to set one. States should be the ones doing that kind of thing, he said.

But on this issue, the U.S. Supreme Court ruled long ago — and upheld a federal minimum pay level for workers all around the country. Back in 1941, the court rejected a challenge to a New Deal-era labor law, saying the Fair Labor Standards Act was constitutional under the interstate commerce clause, said Michael Gottesman, a Georgetown University constitutional and labor law professor.

In an e-mail this week responding to a Daily News query, Gottesman wrote that the court has decided dozens of cases since 1941 supporting the nearly 70-year-old decision.

“In short, there is zero chance that the Supreme Court would reconsider its holding that the FLSA (Fair Labor Standards Act) is constitutional,” Gottesman wrote.

We’ve asked law professors all around the country about Miller’s assertions on minimum wage and the Constitution and so far have heard back from a couple. We’re hoping more chime in.

The issue came up when Miller sat down for politics and pizza with Jonathan Karl, ABC News’ senior political correspondent, and Mike Allen, the chief political correspondent for Politico.com.

Here’s how that part of the conversation went, according to a video and transcript posted by ABC:

Karl: “What about minimum wage? Should the federal government be setting a minimum wage? Every state is different, there are different standards, different costs of living in every state, should there be —"

Allen: “It’s not an enumerated power.”

Karl again: “Should the federal government be requiring a minimum wage?”

Miller: “That is clearly up to the states. We believe — in fact the state of Alaska has a minimum wage which is higher than the federal level because our state leaders have made that determination. The minimum level, again should be the state’s decision.”

Karl again: “So there should not be a federal minimum wage?”

Miller: “There should not be, that is not within the scope of the powers that are given to the federal government. And again, let me make it clear, this is not just a simple checklist this is, let’s think of this pragmatically as well — even if you disagree with the constitutional approach which I think is the No. 1 thing that we ought to be following — it still makes far more sense to have those kinds of decisions made at the level closest to the people where there is more accountability, less inefficiency, where there is more understanding of where the people ought to be and what the state role of government is. We’ve said this many times, if you like big government, move to Massachusetts.”

Miller’s campaign so far has not responded to questions over the past two days from the ADN attempting to clarify his position on labor law, including whether he supports federal laws putting limits on child labor and setting a 40-hour work week.

The campaign of U.S. Sen Lisa Murkowski had a quick response to Miller’s assertions that the minimum wage is unconstitutional. Miller toppled her in Alaska’s GOP primary but she’s running as a write-in.

“Is Joe Miller alleging that he is smarter than our Nation’s most prominent legal minds by calling into question this legal precedent?” Murkowski campaign spokesman Steve Wackowski wrote in an e-mail to the Daily News. “What’s next Joe — are you going to allege that child labor laws, also upheld as constitutional, violate the Constitution?”

The spokeswoman for Democrat Scott McAdams, Heather Handyside, said the candidate had this response: "Mr. Miller's interpretation of the Constitution has always puzzled me. Now it is beginning to alarm me."

The commerce clause speaks to the general welfare of the country, said Jack Balkin, a constitutional law professor at Yale Law School, where Miller got his law degree.

“It has been established since the New Deal that the federal government has the power to regulate working conditions, require protections for health and safety, ban child labor and sweatshops, and create national minimum wage and maximum hour regulations,” Balkin wrote in an e-mail. “The federal government’s power to pass these and other laws regulating economic conditions — which include direct regulations, tax incentives, subsidies and social welfare programs like Social Security — comes from its Article I, section 8 enumerated powers to “regulate commerce . . . among the several states” and “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.”

New Deal economic programs were put in place in the 1930s to lift the country out of the Great Depression.

A guaranteed minimum wage affects the nation’s commerce in many ways, Gottesman wrote in a follow-up e-mail.

“One is avoiding a ‘race to the bottom’ in which states that allow substandard wages attract industry away from states that have a higher minimum wage. Another, frequently cited by the Court, is that higher wages increases purchasing power of employees and thus increases the volume of goods sold in interstate commerce.”

The 1941 decision concerned a criminal case against the operator of a lumber yard in southern Georgia who was paying workers less than the 25 cents an hour minimum wage at the time, or making them work overtime without extra pay.

“One who employs persons, without conforming to the prescribed wage and hour conditions, to work on goods which he ships or expects to ship across state lines, is warned that he may be subject to the criminal penalties of the Act,” the court ruled in U.S. v. Darby.

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