Congress Should Block Obama’s Minimum Wage Order

by Charles C. W. Cooke

In his State of the Union address this evening, the president is set to make an announcement. Per Sam Stein and David Jamieson in the Huffington Post:

WASHINGTON — President Barack Obama will announce during Tuesday night’s State of the Union address that he’s raising the minimum wage for workers under federal contracts to $10.10 per hour, an administration official told The Huffington Post.

Is this legal? Probably, just about. Is it appropriate? Absolutely not.

First, the legality. President Obama cannot unilaterally change the rules that govern existing federal contracts. As Hot Air’s Ed Morrissey correctly wrote a couple of weeks ago:

EOs only apply to executive branch agencies and their direct employees, not to contractors or those working for contractors.  The latter are bound by statute and the terms of the contract, and nothing more. Obama can pretend that he has the authority to order this in an EO, but contractors will simply ignore it — it can’t be enforced, and won’t be.

Nor, obviously, can the executive branch set spending levels without Congress. Both of these options are out — flatly, indisputably, utterly illegal. If Obama tries either of them, he’s going to end up in court.

What the executive can do on its own is to change the terms of future contracts, thus requiring private contractors to pay their employees at least $10.10 per hour as a condition of their receiving federal funds. Stein and Jamieson suggest that it is this that the president is hoping to do:

According to an Obama administration fact sheet, the executive order will cover “workers who are performing services or constructing buildings and are getting paid less than $10.10 an hour.” Those likely to see bumps in future paychecks include dishwashers, food servers and construction workers. Many work in government buildings, but for private employers.

The executive order to be announced by the president during Tuesday night’s speech will take effect only for “new contracts after the effective date of the order.” The administration will honor existing contracts, but the speech gives notice to contractors to adjust future bids — likely by raising them — to accommodate the higher wages.

If Congress were as jealous of its role as it should be, lawmakers would block this move and they would censure the president into the bargain. Why? Because although the move is technically legal, the executive branch is inexorably ranging into territory that is the hard-won preserve of legislatures — a complaint, incidentally, that was made on an almost weekly basis when George W. Bush was appending interpretive statements to the legislation he signed. Thing is, unless one believes that the move is wholly symbolic and will have no practical consequences at all (that’s possible), the order is going have one of two outcomes: a) because prices are raised but spending is not, the federal government will be forced to hire fewer contractors, thus materially changing what it can achieve; or b) the federal government will maintain its current arrangements but, prices having been raised, the money will run out more quickly and the president will be forced to go back to Congress to ask for more cash. These decisions, in other words, are not being made in a vacuum.

The administration understands this. Indeed, it used to explain to proponents of the idea that it had never been done before. When the suggestion was put to him back in December, White House spokesman Jay Carney poured cold water on it, assuring the press that the president “supports raising the minimum wage” but that “this has always been done legislatively, and it has been done with support from Republicans and not just Democrats in the past.” Now? Full steam ahead. With this, as with immigration enforcement, we have gone from “‘I know some people want me to bypass Congress and change the laws on my own,’ but I can’t” to an indignant insistence that unilateral action is acceptable if not unavoidable. What has changed: The law? Precedent? The American settlement? No. What has changed is that the executive branch has become frustrated that the legislature will not give it its own way. So, because it perceives its agenda to be more important than the system, it’s going to do what it wants anyway — the worst reason for a president to do anything.

Disgraceful. Your move, Congress.

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