Raese Joins The Tenther Chorus Claiming Minimum Wage Is Unconstitutional

In an interview last week with the right-wing Washington Times, West Virginia GOP Senate candidate John Raese doubled-down on his previously expressed opposition to the minimum wage, falsely claiming that the law is unconstitutional:

Mr. Raese, chief executive officer of Morgantown-based Greer Industries, which runs interests as diverse as mining and broadcasting, has taken fire for saying he would abolish the minimum wage. But he has refused to back down, saying it’s not only bad policy, but it’s not constitutional.

“I don’t think it is. And the reason I don’t think it is, is the same reason the [National Recovery Administration] was not constitutional in 1936,” he said. “It was declared unconstitutional because it was government micromanaging an intervention into the private sector. Well, what are price controls, or what are wage controls? They’re the same thing.”

It’s difficult to count the errors in Raese’s reading of the Constitution. The Constitution gives Congress the power “[t]o regulate commerce…among the several states,” a power which even ultraconservative Justice Antonin Scalia agrees gives Congress broad authority to regulate “economic activity.” And the Supreme Court unanimously upheld the first federal minimum wage law in a 1941 decision called United States v. Darby.


Moreover, the decision striking down the National Recovery Administration (NRA), A. L. A. Schechter Poultry Corp. v. United States, did not ban laws that “micromanage” the private sector, as Raese suggests. The principal reason why the law authorizing the NRA was struck down is because it gave the President nearly limitless power to approve “codes of fair competition” governing businesses without first seeking congressional approval. A.L.A. Schechter stands for the very banal proposition that Congress cannot delegate its entire legislative power to one man.

Additionally, A.L.A. Schechter was also the last gasp of a narrow “tenther” view of congressional power that would not only eliminate the federal minmum wage, but which would also lead to child labor laws and the federal ban on whites-only lunch counters being declared unconstitutional. So when Raese claims that the minimum wage is unconstitutional, or when Rand Paul suggests that Congress lacks the authority to ban whites-only lunch counters, or when Joe “A Noun, A Verb and Unconstitutional” Miller claims that federal child labor laws violate the Constitution, they are all really calling for the same thing — a return to a discredited era where the most basic laws protecting workers, consumers and other ordinary Americans were completely forbidden.