Forget improving OSHA, apparently we need to defend child labor laws

Last Congress, mine and workplace safety stalled in both houses, despite numerous high-profile disasters like Upper Big Branch, Deepwater Horizon, and several explosions at refineries and gas plants. As the lame-duck Congress came to an end, we lamented the prospects of worker safety legislation in the 112th Congress, noting that Speaker Boehner’s large contributions from mining interests, the party-line committee vote on legislation in the House, and the obstruction of the bill by Republican senators all signaled that passing any legislation in the new Congress would be a difficult task. We were also worried that Rep. Darrell Issa, the new Chair of the House Committee on Oversight and Government Reform, would attempt to legitimize corporate junk economics and dismantle public health, safety, and environmental protections.

What we didn’t expect is that the 112th Congress would be interesting in revisiting the constitutionality of child labor laws.

Senator Mike Lee of Utah recently posted a video lecture on constitutional law. It touched on federalism issues and the extent of the power given to the federal government by the Constitution’s Commerce Clause. Specifically, whether the Commerce Clause allows Congress to outlaw child labor. Senator Lee thinks it doesn’t, and he claims that the Supreme Court agreed with his interpretation, in the 1918 case Hammer v. Dagenhart.

The Court did agree, except that their reasoning was wrong, and the case was later overturned by a unanimous Court in 1941. In United States v. Darby, the court held “the distinction on which [Hammer v. Dagenhart] was rested . . . was novel when made and unsupported by any provision of the Constitution [and] has long since been abandoned.”

Further, the Court held, “The conclusion is inescapable that Hammer v. Dagenhart, was a departure from the principles which have prevailed in the interpretation of the Commerce Clause both before and since the decision and that such vitality, as a precedent, as it then had has long since been exhausted. It should be and now is overruled.”

Ian Millhiser has a longer discussion of the flaws and omissions in Senator Lee’s analysis, but we just wanted to note that it is 2011, and a member of Congress is debating whether child labor laws are constitutional.