Last week, Sen. Mike Lee (R-UT) posted a lecture on his YouTube channel where he explains in great detail his views on the Constitution. As part of the lecture, which is essentially a lengthy defense of his radical tenther interpretation of the Constitution, Lee claims that federal child labor laws are unconstitutional:
Congress decided it wanted to prohibit [child labor], so it passed a law—no more child labor. The Supreme Court heard a challenge to that and the Supreme Court decided a case in 1918 called Hammer v. Dagenhardt. In that case, the Supreme Court acknowledged something very interesting — that, as reprehensible as child labor is, and as much as it ought to be abandoned — that’s something that has to be done by state legislators, not by Members of Congress. […]
This may sound harsh, but it was designed to be that way. It was designed to be a little bit harsh. Not because we like harshness for the sake of harshness, but because we like a clean division of power, so that everybody understands whose job it is to regulate what.
Now, we got rid of child labor, notwithstanding this case. So the entire world did not implode as a result of that ruling.
Lee’s call for a return to failed constitutional vision that spawned the Great Depression is obviously wrong. The Constitution gives Congress the power “[t]o regulate commerce…among the several states,” and to “make all Laws which shall be necessary and proper for carrying into Execution” this power to regulate commerce. Even ultraconservative Justice Antonin Scalia agrees that these powers give Congress broad authority to regulate “economic activity” such as hiring and firing. Which explains why the Supreme Court unanimously overruled Hammer v. Daggenhardt in a 1941 decision called United States v. Darby.
Moreover, Lee is simply wrong to claim that child labor magically disappeared after the Supreme Court rendered Congress powerless to prevent it. The reason why exploitative child labor has largely disappeared is because Congress placed very strict limits on child labor when it enacted the Fair Labor Standards Act of 1938, and the constitutional cloud over this law was removed three years later when the Court overruled Lee’s pet decision.
Child labor laws are also only one of many essential protections that would evaporate in Mike Lee’s America. The same legal theory Lee uses to impugn child labor laws applies equally to the federal minimum wage and the ban on whites-only lunch counters. And Lee doesn’t even stop there. In a subsequent section of the lecture, Lee attacks President Franklin Roosevelt for calling for the federal government to provide “a decent retirement plan” and “health care” because “the Constitution doesn’t give Congress any of those powers.” Watch it:
So Lee wouldn’t just remove the most basic protections against child sweatshops, he would also eliminate Social Security and Medicare.