QUESTION: I understand that [Garcia v. SAMTA] established the Congress's ability to enforce its power against the States in area of the traditional governmental functions through the Commerce Clause. However, I was unclear why can Congress enforce its power via the Commerce Clause? Is it simply because the minimum wage and overtime influences one's earning and consumer power, thus, affects the interstate commerce, Congress is entitled to exert its power via the Commerce Clause? Are there other reasons?
ANSWER: Very good question. And it depends whether we are answering using the law as of 1985, when Garcia was handed down, or today (following Lopez, Morrison, and Raich). As to the former, consider the rationale of Garcia: the true protections of states is through the political process, not judicial enforcement of the outer limits of Congress's enumerated powers. Taken seriously, the Court is basically saying that any claim that Congress has exceeded its enumerated powers is a political question (barring some problem with the political process itself). As to the latter -- under the law as it stands today -- think about the framwork set up by Lopez. The FLSA ia almost certainly not a regulation of the use of the channels of interstate commerce. Nor is it a regulation of the instrumentalities of, or persons or things in, interstate commerce. Thus, it would have to be a regulation of an activity substantially affecting interstate commerce. What is the activity in question? Employment, and setting the terms thereof (such as maximum hours, the minimum wage, etc.). These are almost certainly economic or commercial activities. And Lopez indicates that, if the regulated activity is economic or commercial in nature, we can aggregate its effects to determine whether there is a substantial effect. And clearly, in aggregate, the terms of employment goverened by the FLSA have a substantial effect on interstate commerce. That is why a court today would almost certainly find that the FLSA is within Congress's commerce power.