It's no great secret that Republicans oppose increasing the minimum wage. They don't pretend it's something they want to do under any circumstances. They don't even really bother disguising their opposition. They cloak their view in dated and oversimplified economic arguments about labor demand and economic growth when the real impediment is ideological, and so it's a somewhat better kept secret that many Republicans oppose the minimum wage altogether.
Opposing the minimum wage isn't a politically seemly thing to do, though, and thus the great political consequence of President Obama's decision, announced during his State of the Union address, to institute a $10.10 minimum wage for future federal contracts, will be to draw the extent of this opposition out into the open.
If there's one thing conservatives agree upon with respect to Obama's executive order, it's that it won't impact very many people. They're actually probably correct about that. Yet despite the policy's marginal impact, some conservatives abruptly turned discovering the means of denying a higher wage to a tiny number of workers into a top priority.
In the days since Obama's State of the Union address, they've attacked the order itself, encouraged Congress to block it, and scoured federal law for a reason that the courts should throw it out.
Irrespective of legal questions, the smart political play for Republicans is to let Obama have this one. Assume the order's validity, note that it's a fairly marginal change, and then move on. Don't turn it into an ideological lightning rod.
House Speaker John Boehner understands this, which is why his reaction to the minimum wage order was fairly subdued.
“I think dealing with federal contracts and the minimum wage, he probably has the authority to do that. But we’re going to watch very closely because there’s a Constitution we all take an oath to — including him -- and following that Constitution is the basis for our republic, and we shouldn’t put that in jeopardy," he told reporters last week. "Let’s understand something: This affects not one current contract,” Boehner said. “It only affects future contracts with the federal government. And so I think the question, Mr. President, is how many people will this executive action actually help? I suspect the answer is somewhere close to zero."
But other conservatives can't let well enough alone.
National Review writer Charles Cooke grants that Obama's maneuver is probably legal but argues that Congress should pick this moment to assert its supremacy. "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."
Of all the claims Congress could make against the executive branch's tendency to overreach, this is the one they should make, and urgently so.
Not necessary, argues Cooke's co-blogger, conservative legal scholar Andrew Kloster.
"The problem with Cooke’s assessment that the proposed Executive Order is 'probably, just about' legal, is that there is actually a statute on point that cabins the president’s discretion regarding wage terms in federal contracts for services," he writes. "[F]ederal law requires that the default federal contract wage not be pulled out of a hat: rather, it must be assessed 'in accordance with prevailing rates in the locality.' While it is unclear at this point what authority the president is relying upon to justify this $10.10 rate, what remains clear is that the specific statute on point — the Service Contract Act — sets clear limits on his discretion. If $10.10 per hour is the 'prevailing' wage in New York for janitorial workers, then federal contracts for janitorial services in New York should set $10.10 as the wage for those services. But if $9.00 per hour is the 'prevailing' wage for cafeteria workers in Nebraska, no Executive Order can require federal contracts for those services to pay those workers $10.10. And a contractor denied on that basis would have a viable lawsuit to invalidate that Executive Order."
Northwestern University law professor Eugene Kontorovich explains in an update to this piece that though a conflicting statute might limit the scope of Obama's (presumably quite limited) order, it doesn't abolish his authority to institute it. Townhall pundit Conn Carroll thus set about trying to disprove the existence of the authority in the first place.
I don't mean to trivialize the rule of law. If Obama clearly lacked the authority to set a minimum wage for future federal contracts, then all of the good intentions and allusions to the narrowness of the order wouldn't matter very much. But the preference here is revealed by the intensity of the second guessing. This is an awful lot of energy to expend on an executive order that won't help anyone.
There are two plausible explanations for this obsession. The first is that conservatives so intensely oppose interventions into the free market -- particularly ones that redound to the benefit of the working poor -- that they feel compelled to interrupt even trivial ones. Another is that they worry Obama's move will, over time, catalyze businesses, states and Congress into increasing wages. Perhaps it's a bit of both. Whatever the case, though, it's forcing Republicans to confront the true nature of their position.
Here's Sen. Rand Paul, R-Ky., explaining his opposition to Wolf Blitzer.
BLITZER: Do you believe in a minimum wage?
PAUL: Well, I think when you look at raising it, all of the studies show that if you raise it, you get more unemployment. So, really, the market place does a better job at determining what –
BLITZER: So, there shouldn't be any federal minimum wage?
PAUL: I'm not so sure I'm saying that. But I think what I am - I'm not sure I have an answer as far as whether there is a right or wrong –
BLITZER: You're a United States senator. You thought about whether or not there should be a federal –
PAUL: Not necessarily. But what I have thought about is raising the minimum wage causes more unemployment. When we have 20 million people out of work, I think it's a bad idea to raise it.