Congress, Constitutional Law, Politics, Supreme Court

Are Child Labor Laws Unconstitutional in The Tea Party World?

Submitted by Lawrence Rafferty(rafflaw), Guest Blogger

 

We have seen and heard on many occasions the Tea Party claim that it desires Congress and the Federal Government to follow the letter of the Constitution instead of reaching beyond the four corners of the document.  With that thought in mind, I was intrigued by a recent article on the Think Progress site that reviewed the You Tube video claims made by U.S. Senator Mike Lee of Utah, that Congress’ passage of laws outlawing and restricting Child Labor, was unconstitutional. http://thinkprogress.org/2011/01/14/lee-child-labor/?wpmp_switcher=desktop

Now, I know that the Tea Party has sometimes gotten a bad reputation for making silly claims under the Tenth Amendment.  Those claims actually spurred a new term or title, “Tenther”.  But, I have to admit that Senator Lee has really gone way beyond the Tenther label with this false claim about the constitutionality of the child labor laws within the Fair Labor Standards Act of 1938.  Here is a link to a brief description of how the FLSA deals with child labor and the act itself: http://www.stopchildlabor.org/USchildlabor/fact1.htm   & http://www.dol.gov/whd/regs/statutes/FairLaborStandAct.pdf

Senator Lee discusses his outrageous claim in a YouTube presentation that attempts to use the 1918 Supreme Court case of Hammer v. Dagenhart as his evidence that Congress has gone too far.  Unfortunately for Senator Lee, the Hammer case was specifically overruled in 1941 by a unanimous Supreme Court in 1941 in U.S. v. Darby. http://scholar.google.com/scholar_case?case=1183543472021488573&hl=en&as_sdt=2&as_vis=1&oi=scholarr   I guess Senator Lee didn’t want to let minor details get in the way of “proving” his claim.  The part that I just don’t understand about Senator Lee is why does he want to return to the day when children were forced to work at too early of an age and under horrible conditions?  From what I can tell from his video lectures which are found in the aforementioned Think Progress link, he claims that the State should be making those decisions and not the Federal Government or Judiciary.  Why would he make those claims and not tell the listener that the case he is citing was overruled over 60 years ago?  What other laws would be unconstitutional in his world?

Lawrence Rafferty, (rafflaw) Guest Blogger.

136 thoughts on “Are Child Labor Laws Unconstitutional in The Tea Party World?”

  2. Senator Lee says child labor is a state’s right. I think children have human rights. Who decides whether children (or women, or gays, etc.) have basic rights that transcend national or state boundaries?

  3. Pete,
    The Tea Party does seem to want to take us back in history so maybe the annexation of the Utah area might be worth taking a second look at!

  4. does the constitution allow for buying or annexing land? if not utah wouldn’t be a state and mike lee wouldn’t be a senator. that also makes him a foreigner. does he have a green card?

  5. BBB,Good one!
    Mike,with all due respect, I don’t think Senator Lee was worried about his accuracy.
    Thanks Buddha, It bugged the heck out me when I read and watched the video. It takes talent to do that with a straight face.

  6. Raff,

    I’m glad you decided to post this. I read this story this morning, and as soon as I quit laughing at him citing an overruled case for his rationale, I wanted to puke.

  7. Mike,

    “Even Senators need to remember to Shepardize….”

    lol

    Assuming they can find all the volumes they need or are competent to hit a button on WestLaw!

  11. BBB,
    Iunderstand that this is a Tenther issue, but no matter how many states are involved, people who make these claims that are not only inaccurate statements at best, need to have the bright lights shone upon them to disclose the just how radical they are. If I take Senator Lee at his word, he thinks the States would cure and prevent every evil that the FSLA corrected. Of course, history shows us that the States aren’t always going to protect their own people from runaway greed.

  12. I guess before its all over the congress people will be wearing wigs and robes again.

  13. I don’t think Senator Lee’s efforts have anything to do with a desire to employ children. This is a Tenth Amendment issue spurred by the passing of the National Health Care Act. With Kansas now wanting to join the fight, that makes 26 states involved.

    I don’t think Lee is going to gain enough traction for this to be of any real concern at this point.

  14. Former Fed,
    Thanks, I can do that without any problem, but the confusion may also be related to Prof. Turley’s picture at the top.
    Lottakatz, you may be correct, but I am not sure the majority of Senators on the Republican side think like Senator Lee does. At least I hope not!

  15. To the very capable “guest bloggers”,

    I suggest—in addition to your initial bolded “Submitted by XX, Guest Blogger”—that you sign your name at the end of your essay (as Prof. Turley often does) to ‘bracket’ your topic to ensure no reader confuses it with any other posts.

    I initially criticized the commenter named ‘puzzling’ for making a similar suggestion (I recently apologized for that criticism). For whatever reason, mistaking the guest bloggers for Professor Turley happens with a greater frequency than I would have anticipated.

    While I know that neither Prof. Turley nor the guest bloggers mind being lumped into the same intellectual category by a mere mistake, it is only fair that even the most incautious reader is fully alerted to the authorship of articles—i.e., which fine author writes what within this fine blawg.

  16. Child labor is good for business so why am I not surprised that a republican would raise this issue under state’s rights?

    I think that this is just another issue that isn’t going anywhere but may be used to divert attention from actual issues like the upcoming vote to extend the Homeland Security Act.

    Also, the more time spent dithering with things like this, the more time the new majority has before they actually have to start proposing actual plans and programs as law. After all, the only things we have heard about jobs is the title of a bill to repeal healthcare and as a benefit of the trickle-down theory/more tax breaks for the wealthy. Where’s a jobs bill, where’s any proposed program? It’s not like they didn’t have two years to come up with something new.

  17. Highwater and Former Fed,
    Thanks for catching my error. I have corrected the post to reflect that it was a United States Senator who is making these claims!

  20. Well….come on….lets all take that maniac mushroom trip being offered by the parties that offer us that most magical substance….we can all drink of the water being offered or the Jonestown Style punch….

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