Obama’s minimum wage plan has more statutory authority than prior “unilateral” actions

Hans Bader and others have argued that in some parts of the country, the increased wage could conflict with another statute, the Service Contract Act, to the extent it applies to the contracts. Perhaps the executive order, already expected to be narrow, will carve out such contracts. In any case, the issue would be whether the president’s conciliation of these statutes is correct, not whether he acts without any purported statutory authority. In other words, such a case could be decided without saying anything about the constitution, and given the principle of constitutional avoidance, probably would be.