Thomas "Hamburger" Spritzler walked off his job as a Congressional fry cook yesterday after it was announced he would remain "underpaid and overworked". Said an irate Spritzler "I try to supplement my earnings at the Report and get kicked squarely in the balls by the 9th Circuit".
Biden’s $17.75 Wage Rule Loses in Court
He can’t mandate pay on federal contractors, the Ninth Circuit says.
By The Editorial Board, WSJ
Nov. 24, 2024 4:15 pm ET
It’s a day that ends in y, which means that the Biden Administration has lost another court case about executive overreach. President Biden issued an order in 2021 raising the minimum pay for workers on federal contracts to $15 an hour (soon to be $17.75). This is outside Mr. Biden’s authority, according to a 2-1 ruling this month at the Ninth Circuit Court of Appeals.
Federal contracting law says the President may issue directives that he “considers necessary to carry out this subtitle.” Yet the substance of such orders still must be rooted in the statute somewhere, Judge Ryan Nelson writes in Nebraska v. Su. A broad “necessary to carry out” clause “does not give the President unrestrained authority to issue any procurement policy that he desires.”
The precedents are split. The Tenth Circuit said in April that the law “likely authorizes the minimum wage rule,” which “advances the statutory objectives of economy and efficiency.” In 2003 the D.C. Circuit held that President George W. Bush could require contractors to post notices about their right not to join a union, since that order had a “sufficiently close nexus” to procurement. Judge Nelson cites other Presidents adding strings to contracts back to a 1965 nondiscrimination mandate by LBJ.
But then he looks closer at Mr. Biden’s policy. Judge Nelson says the Labor Department recognized that the higher minimum wage “will cost federal contractors $1.7 billion and that this cost will likely be passed onto the government.” Any gains in productivity or turnover “are only expected to ‘help offset the costs’ of the rule—not to outweigh the costs.” Mr. Biden issued the order only after proposals for a $15 national minimum wage failed in Congress. Let’s not pretend this contract rule is about procurement efficiency.
And where’s the limiting principle? In other cases cited by Judge Nelson, courts said the government couldn’t force federal contractors to impose Covid-19 vaccine mandates on workers. If vaccination requirements passed the “close nexus” test, the Fifth Circuit said in 2022, then the President could equally say procurement would be improved by forcing federal contractors to “take daily vitamins” or “live in smoke-free homes.”
Perhaps the Supreme Court will want to hear this question to clarify. Even if not, it provides a lesson in how executive overreach goes. President Obama in 2014 issued an order requiring a minimum wage of $10.10. Now Mr. Biden is trying to crank it to $17.75.
This is social policy, and it limits competition, since contractors in low-tax, low-regulation states (including Nebraska) can’t use their cheaper labor to their advantage. Both Ninth Circuit judges who ruled against Mr. Biden were appointed by President Trump, which might make progressives howl. But in two months, when Mr. Trump retakes office, they might learn to appreciate judges who see real limits on presidential power.
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