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Supreme Court: Obama's minimum wage executive order unconstitutional

Supreme Court rules Obama's minimum wage executive order unconstitutional.
Supreme Court rules Obama's minimum wage executive order unconstitutional.
Win McNamee/Getty Images

Last week, President Obama issued an executive order raising the minimum wage for federal contractors to $10.10 an hour. But the Supreme Court said that executive order is unconstitutional, the National Review reported Monday.

In the case of Youngstown Sheet and Tube Co. v. Sawyer, the court said “the President’s power, if any, to issue the [executive] order must stem either from an act of Congress or from the Constitution itself.”

Additionally, the court said, “when the president takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.”

In short, Peter Kirsanow wrote, the Constitution does not give Obama the authority to unilaterally set or change the minimum wage.

While Obama generally has authority to improve the efficient discharge of federal contracts, Kirsanow added, his order is "incompatible with the expressed and implied will of Congress."

Congress, he added, has expressed its will in four separate statutes: The Service Contract Act, the Davis Bacon Act, the Walsh-Healey Act, and the Fair Labor Standards Act.

The minimum wage for most federal contractors is the prevailing minimum wage for employees in the specific job classification in the locality where the work is to be performed, he explained.

"Interestingly, the executive order, replete with enough double negatives and disjunctive clauses to make the average federal bureaucrat’s head explode, contains a severability and savings clause as well as several qualifiers that the order be implemented 'consistent with applicable law,' 'to the extent permitted by law,' and consistent with 'prevailing wage law,'” Kirsanow said.

Most of the order, if applied as written, already conflicts with existing law.

Kirsanow said the order appears to have been drafted and added to the State of the Union before it was fully vetted.

"The result is an order that is unconstitutional and/or a charade," he added.

Nevertheless, the order remains and contractors will need to consult with their attorneys to determine how it applies to them. It is highly unlikely Obama will rescind the order in light of the court decision.

The president said during his State of the Union that he would take executive action whenever and wherever he could to enact his agenda while bypassing Congress. He has repeated that statement several times since the address, reminding Americans he has a pen and a phone.

Moreover, the Washington Examiner said that Obama is set to use that pen again on Tuesday, mandating greenhouse gas standards for medium- and heavy-weight trucks by March 2016.

It's almost enough to make one believe Obama thinks he is the law.



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