How can the federal government set a minimum wage? It seems like that would be reserved to the states under the 10th Amendment.

Is the interstate commerce clause? That seems iffy to me.

  • 2
    Iffier than the impact of wheat grown on your own farm for personal use has on interstate wheat prices? Wickard v Fillburn settled that.
    – user662852
    Jan 25, 2016 at 10:59

1 Answer 1


It's the interstate commerce clause. Because of how the modern economy works. there's really pretty much nothing that's confined to a single state in its effects and doesn't affect other states. Almost any law can be justified as a regulation of interstate commerce these days, especially if that law is actually directly about commercial activity.

The big case to cite here is United States v. Darby (312 US 100). This case tested a federal minimum wage law which banned shipping goods in interstate commerce where they were produced by people paid less than minimum wage, and also banned the employment of those people at less than minimum wage in that context. The Supreme Court found this law constitutional, even though the manufacturing employees weren't personally engaged in interstate commerce, because the employer was engaged in interstate commerce and regulating production was a permissible way to regulate that commerce.

Now, after that decision, there was a major broadening of what was allowed to be regulated under the interstate commerce clause. In Wickard v. Filburn (317 US 111), the Supreme Court ruled that the appropriate test to see whether something could be regulated as interstate commerce was whether it had a "substantial economic effect" on interstate commerce. Under this rule, federal regulation under the commerce clause is very far-reaching. It supports extending a minimum wage to domestic service workers (Marshall v. Rose, a Fourth Circuit case from 1980); it supports extending EEOC rules to state employers (EEOC v. Wyoming); it supports a lot of things.

  • I'd be curious to know whether this has been considered by the Supreme Court. All I could find was West Coast Hotel v. Parrish (1937), which overturned earlier decisions and held that a state minimum wage law was constitutional. But of course this doesn't have the Tenth Amendment issue, and West Coast Hotel predates the introduction of a federal minimum wage with the Fair Labor Standards Act of 1938. Jan 25, 2016 at 15:40
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    US v. Darby (312 US 100). Even for things so seemingly separate from interstate commerce as domestic service employees, the 4th Circuit found it clearly within the scope of the clause in Marshall v. Rose.
    – cpast
    Jan 25, 2016 at 16:29
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    @Mr.A States can generally regulate commerce; they can't regulate in a discriminatory way against interstate commerce (for instance, they can't say "landfills can't import garbage from other states"), but there's nothing unconstitutional about a state regulating something that happens to also be interstate commerce. I'm not sure how you're reading the Tenth Amendment to say "there is nothing that is under the power of both the feds and the states;" that only works if everything the feds can control is something the states cannot touch, which is not true.
    – cpast
    Jan 25, 2016 at 17:09
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    @Mr.A No. That's why Article I, Section 10 exists: it says that states can't do some things that Congress has the power to do. For instance, states can't states can't engage in war (unless invaded or in imminent danger) without congressional approval because Article I says so. States can't run their own immigration because the federal scheme is so complete that it leaves no room for any state regulation, so the Supremacy Clause stops the states from interfering. The 10th Amendment says states keep anything not delegated to the feds; it doesn't say they lose what was delegated.
    – cpast
    Jan 25, 2016 at 18:03
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    @Mr.A It's worth noting that federal and state minimum wage laws don't conflict: an employer can comply with both by simply paying the higher of the two wages. Under the Commerce clause, Congress probably could make a law that said "The minimum wage is $X.XX, and no state shall set one that is higher." But they have not done so. Jan 25, 2016 at 20:02

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