As part of his efforts to “bypass” Congress to pass legislation, the President has announced that he will sign a bevy of executive orders. One such order would require that “janitors, construction workers and others working for federal contractors be paid at least $10.10 an hour.”
I haven’t seen the actual text of the order, but in the abstract, I don’t see any constitutional problems here. The order would only apply to prospective government contracts, not ones in existence. This would obviate any contract clause problems (as reverse incorporated through the due process clause).
This order reminds me somewhat of President Kennedy’s famous Executive Order 10925, which prohibited racial discrimination in federal hiring, even before the Civil Rights Act was passed.
John Boehner also seems to think this is okay.
“House Republicans will continue to look closely at whether the president is faithfully executing the laws as he took an oath to do,” Boehner (R-Ohio) said Tuesday morning after a meeting of House Republicans at the Capitol Hill Club. “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 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.”
I’ll keep my eye open for any other executive orders that the President signs.
Update: GW LawProf Dan Gordon, who specializes in government procurement, argues that this law may violate the “Federal Property and Administrative Services Act of 1949.”
“My understanding is that they are using the president’s authority under the Federal Property and Administrative Services Act of 1949,” George Washington Law School’s Associate Dean for Government Procurement Law Studies Dan Gordon told Townhall. “And that calls for measures which ensure ‘economy and efficiency’ of the procurement process. And I am not sure whether this blanket increase in the wages paid by contractors can be fit within that legal framework.”
“Now it is certainly true that if you had a particular contract,” Gordon explained, “let’s suppose you were running a call center for the IRS in Topeka, Kansas, and you had a history of contractors at that call center who were paying their people the legal minimum and the result was significant staff turnover which was causing disruption, then you clearly could say, ‘You know what, in the next procurement we’re going to require that the contractor pay higher wages because higher wages are necessary to avoid disruption cause by turnover.’ But as a blanket matter I think that there is a legal cloud over whether raising the amount that contractors pay serves ‘economy and efficiency.'”
I know nothing about this law, so I have no thoughts on this.