Sen. Mike Lee’s Flawed Challenge to Child Labor Laws

By Jillian Raines

Tea Party-backed Senator Mike Lee (R-Utah) recently posted a video lecture on his YouTube channel in which he discusses his views on the United States Constitution. Specifically, Sen. Lee spends the majority of the video advocating for a reading of the Constitution that wouldn’t permit federal child labor laws.

In the video, Lee voices an interpretation of the United States Constitution that the Huffington Post calls “provocative.” And the Huffington Post isn’t alone. Across the board, scholars and news organizations have voiced concern that Sen. Lee is preaching convoluted constitutional analysis, but haven’t explained exactly why or how. To understand, it’s important to examine the Constitution and how courts have interpreted it.

According to Sen. Lee, under the Commerce Clause in Article I, Section 8 of the Constitution, Congress does not have the power to regulate child labor; it is a “local activity” which is up to individual states to regulate.  In addition, says the Senator, the Constitution’s text does not directly speak to child labor. These factors both lead Sen. Lee to the conclusion that when it comes to child labor laws, Congress is overstepping its bounds. In an attempt to support his position in the context of child labor, Sen. Lee relies on a 1918 Supreme Court case, Hammer v. Dagenhardt.

Does Sen. Lee’s rationale hold up?

The text of the Commerce Clause refers only to commerce among the states (“interstate activity”). It does not directly provide Congress the power to regulate local activity within each state (“intrastate activity”). But years of Supreme Court precedent supports the notion that when the local or intrastate activity has a significant effect on interstate commerce, Congress can exercise its Commerce Clause power over that activity.

And as for Sen. Lee’s use of Hammer v. Dagenhardt to support his claim—I’d recommend that Sen. Lee brush up on his Commerce Clause jurisprudence.


In Hammer, the Court was asked to decide whether a law that prevented the products of child labor from entering interstate commerce was constitutional under the Commerce Clause. The Court found the law to be unconstitutional, and held that the manufacturing stage of interstate commerce was not subject to federal regulation under the Commerce Clause.

So far so good for Sen. Lee’s position, right?

What the Senator failed to acknowledge about Hammer—and what media sources correctly point out—is that the Supreme Court expressly and unanimously overturned Hammer in the 1941 case United States v. Darby. Darby considered the constitutionality of the Fair Labor Standards Act (FLSA), enacted in 1938, which set out federally mandated labor standards, including those for child labor. The Act, which was held to be constitutional, prevented goods made by employees whose wages were less and whose hours were greater than those it prescribed, were deemed have been shipped into interstate commerce.  In contrast, wrote Justice Stone, Hammer was “a departure from the principles which so affect interstate commerce or the exercise of the power of Congress over it.”

Since then, the Court has repeatedly reinforced that Hammer was wrongly decided and that Congress has the power under the Commerce Clause both to regulate child labor and to set national minimum wage and maximum hour laws. The Court’s reasoning is that labor itself is economic in nature and the product of that labor that makes its way into interstate commerce thereby places it within Congress’ reach.

Indeed, since Darby was decided the Supreme Court’s Commerce Clause jurisprudence has continued to expand its “interstate commerce” umbrella. Elaborating on traditional notions of commerce, in 1942, for example, the Supreme Court affirmed Congress’ exercise of Commerce Clause power in passing a law that regulated wheat for personal consumption by imposing fines for overproduction. While growing wheat for personal consumption might seem to be a local, noncommercial activity, the Court found personal overproduction had a substantial economic impact on interstate commerce because it had an influence on the market price for wheat.

In the1960s, the Supreme Court analyzed the reach of Congress’ Commerce Clause power again when it upheld the constitutionality of Title II of the Civil Rights Act of 1964. In two famous cases, the Supreme Court held that a local hotel (Heart of Atlanta Motel v. United States) and a local restaurant (Katzenbach v. McClung) could not discriminate against nonwhites because both establishments had an effect on interstate commerce. In Heart of Atlanta, the hotel served travelers crossing state lines. In Katzenbach, much of the food used at the restaurant had gone through interstate channels. Such factors showed enough connection to interstate commerce, the Court found, for Congress to properly exercise its Commerce Clause power in this civil rights arena.

And more recently, in 1995, the Court in United States v. Lopez went as far as setting out factors that help courts determine when an activity is substantially related enough to interstate commerce for Congress to regulate it under the Commerce Clause. These factors, which direct courts to take into account the economic and commercial nature of the activity, for example, show how broad the Court’s Commerce Clause jurisprudence has become since the days of Hammer.

So while Mike Lee may be comfortable disregarding established precedent in order to mold decades-old case law into a something that will support his position regarding the federal government’s abuse of power—it is important to note that seventy years of Supreme Court Commerce Clause jurisprudence refute Senator Lee’s position.



3 Responses

  1. Miles Davis says:

    Looks like this blog is from New York Law School. Anyone in New York will be against anything a Tea Party-er says. But from the looks of things, Mike Lee did get his facts wrong. Anyone out there able to defend Mike Lee’s ideas?

  2. Jefferson says:

    “Our country is now taking so steady a course as to show by what road it will pass to destruction, to wit: by consolidation of power first, and then corruption, its necessary consequence.” ~ Thomas Jefferson

    “A wise and frugal government, which shall restrain men from injuring one another, which shall leave them otherwise free to regulate their own pursuits of industry and improvement, and shall not take from the mouth of labor the bread it has earned. This is the sum of good government.” — Thomas Jefferson

    “When we get piled upon one another in large cities, as in Europe, we shall become as corrupt as Europe.” ~ Thomas Jefferson

    “It is the people, to whom all authority belongs.” –Thomas Jefferson

    “I would rather be exposed to the inconveniences attending too much liberty than those attending too small a degree of it.” — Thomas Jefferson (1791)

    “I predict future happiness for Americans if they can prevent the government from wasting the labors of the people under the pretense of taking care of them.” ~ Thomas Jefferson

    “Experience hath shewn, that even under the best forms of government those entrusted with power have, in time, and by slow operations, perverted it into tyranny.” – Thomas Jefferson

    “It is error alone which needs the support of government. Truth can stand by itself.” ~ Thomas Jefferson

    “Prudence, indeed, will dictate that governments long established, should not be changed for light and transient causes; and, accordingly, all experience [has] shown that mankind are more disposed to suffer while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But, when a long train of abuses and usurpations, pursuing invariably the same object, evinces a design to reduce [the people] under absolute despotism, it is their right, it is their duty, to throw off such government, and to provide new guards for their future security.” –Thomas Jefferson

  3. Jefferson says:

    “If the present Congress errs in too much talking, how can it be otherwise in a body to which the people send one hundred and fifty lawyers, whose trade it is to question everything, yield nothing, and talk by the hour?” ~ Thomas Jefferson

Leave a Reply