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This Day in History: FDR Pushes the Limits of the Constitution

On this day in 1938, Franklin D. Roosevelt signs a law setting a federal minimum wage. The bill was the culmination of months of work: He’d asked Congress to send such a law to his desk roughly a year earlier.


Such a proposal might sound normal to modern ears, but it was far from normal back then. To the contrary, there was a pretty big dispute about the constitutionality of FDR’s plan—and many today still contend that these types of requirements are unconstitutional.


Why? Early Americans would have expected that the states may set such labor requirements. The federal government may not.


Regardless, the proposal was unsurprising, coming from FDR, who defaulted on big government measures during the Great Depression. Yet, even then, he would have failed in his efforts but for a startling Supreme Court decision during the spring of 1937.

"The King can do no wrong," Greaves (1940). The illustrator’s first name is unknown.

The ramifications of that decision were massive.


Before March 1937, the Court had been consistently striking down FDR’s “New Deal” measures, recognizing that the Constitution sets up a federal government of limited powers. Congress is not authorized to act unless it can find an affirmative grant of power in the Constitution. One of these can be found in the Commerce Clause: “The Congress shall have power to . . . regulate commerce with foreign nations, and among the several states, and with the Indian tribes.”


This clause authorizes Congress to act ONLY where “commerce” is interstate. In other words, it can act where commerce crosses state boundaries. But Congress may NOT act in matters that are purely intrastate. To put it another way, Congress may not act where commerce remains within state boundaries.


Many laws enacted during FDR’s first term were found to violate the Constitution because they attempted to illegally regulate INTRAstate commerce. The Court appropriately recognized limits on the federal government’s power.


Or, at least, it did until FDR proposed a “court-packing” plan. At about the same time, one Justice switched his vote on these issues. Coincidence? Or not?


Either way, that changed vote in March 1937 has been called the “switch in time that saved nine” because FDR dropped his court-packing plan. The decision started a domino effect, and the Court was soon reversing itself on Commerce Clause issues. In this changed atmosphere, FDR decided that his minimum wage legislation had a chance of success.


FDR went to his Secretary of Labor, Frances Perkins, for help. The two were already philosophically in sync. When Roosevelt first asked Perkins about being Labor Secretary, she said that she’d accept if she could eventually have a minimum wage law. Roosevelt reportedly agreed, but Perkins asked: “Have you considered that to launch such a program . . . might be considered unconstitutional?” Roosevelt simply said: “Well, we can work out something when the time comes.”


Perkins soon had a few bills prewritten, so when FDR decided to push for minimum wage legislation in 1937, she was ready. According to the Department of Labor website, FDR asked Perkins: “What happened to that nice unconstitutional bill you tucked away?” She pulled out a prewritten bill that was ready “against an emergency.”


That bill included many features that Perkins had long wanted: a minimum wage law, maximum work hours, and a prohibition on child labor. The bill eventually passed Congress, and FDR signed it on June 25, 1938.


As you know, Congress didn’t stop there. It has taken power over our lives in all sorts of ways. It leaves one wondering what our world would look like if the Supreme Court had not reversed itself in March 1937, doesn’t it? 


Primary Sources:




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