Debate over Nevada’s minimum wage raises serious constitutional question

So far, the debate in the Nevada Legislature has been about whether to raise the hourly minimum wage and, if so, by how much, to $12 or $15.

But there’s a more basic question: Can the Legislature even legally raise the minimum wage through a bill?

Back in 2004 and 2006, voters approved a constitutional amendment that provided for a minimum wage (not less than $5.15 per hour if an employer provided health-care benefits or $6.15 if not) and a mechanism for future increases — matching the federal minimum wage or the consumer price index. The current minimum wage in Nevada is $7.25 if an employer provides health care, and $8.25 if not.

The official ballot arguments didn’t mention the fact that enshrining a minimum wage in the state constitution would make it more difficult for lawmakers to repeal. In order to change the constitution, the Legislature must pass a joint resolution in two successive sessions, and then put the measure on a general-election ballot for a vote.

It’s at least a four-year process.

So how can the Legislature set a different minimum wage without amending the constitution?

At one point, the Legislative Counsel Bureau’s Research Division said it couldn’t. A fact sheet on the issue, revised in August 2015, says, “Because provisions governing the minimum wage are included in the [state] Constitution, any changes to the minimum wage provisions require a constitutional amendment.”

But that fact sheet is no longer posted on the Legislature’s website. Instead, a document labeled “second revised August 2015,” omits that particular paragraph.

Rick Combs, director of the LCB, said Monday the original version of the fact sheet was in error, and did not reflect the views of the bureau’s legal division. He said the erroneous version was briefly re-posted by accident recently, but that the current version is the correct one.

That was also the view put forth by a legislative lawyer on Monday, at a Senate Commerce and Labor Committee hearing on the minimum wage bill. After a small businesswoman objected to an increase on constitutional grounds, attorney Brian Fernley told the committee the Legislature has broad authority to pass laws so long as they don’t directly conflict with the state or federal constitutions. And because the 2006 constitutional amendment says the wage shall be “not less than” $5.15 per hour, the Legislature is free to adopt a wage that is more than that amount.

He also cited a 2014 minimum wage case in which the Nevada Supreme Court said the Legislature may not enact laws in direct conflict with the constitution. But that case also says, “If the Legislature could change the [state] Constitution by ordinary enactment, ‘no longer would the Constitution be “superior paramount law, unchangeable by ordinary means.” It would be “on a level with ordinary legislative acts and, like other acts … alterable when the Legislature shall please to alter it.” ’ ”

It’s obvious the Legislature can’t set a minimum wage lower than that in the state constitution. The question now becomes, does setting a wage higher that what’s in the constitution constitute a “change” that reduces the 2006 constitutional amendment to an ordinary, alterable legislative act?

That’s a question bound for the courts, since it’s easy to contemplate a business owner filing a lawsuit claiming he or she has a constitutional right to pay the $7.25/$8.25 minimum wage outlined in the constitution, and no more. The legal cloud may even influence the debate over the issue: Democrats surely have sufficient votes to pass some wage increase, but Republican Gov. Brian Sandoval still has to sign it, knowing full well that litigation is likely.

Steve Sebelius is a Review-Journal political columnist. Follow him on Twitter (@SteveSebelius) or reach him at 702-387-5276 or SSebelius@reviewjournal.com.