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From an economic standpoint, the minimum wage is terrible public policy. It hurts those its advocates claim to be trying to help, creating unemployment by making certain employment agreements a crime. We would be better off without it, and we certainly should not vote to increase it. Those of us who understand what an economic disaster it would be to tie the state minimum wage to a national index—creating a de facto escalator—watched as the Oklahoma Supreme Court heard a challenge to a current ballot initiative to raise the state minimum wage.

In State Chamber of Oklahoma v. Cobbs, the Court was asked to decide whether Initiative Petition 446—a petition to increase the state’s minimum wage and then implement automatic annual increases tied to the U.S. Department of Labor’s Consumer Price Index—was an unconstitutional delegation of legislative authority. The State Chamber, stepping up to defend the economic liberties of all Oklahomans, filed the challenge and argued the initiative petition was an unlawful delegation of authority under the Oklahoma Constitution.

The Chamber’s case was based on a 1995 Oklahoma Supreme Court ruling which held that a very similar law passed by the Oklahoma Legislature had unlawfully delegated legislative authority to the U.S. Department of Labor. The minimum wage law struck down by the Court in 1995 differed from Initiative Petition 446 in two ways. 

First, the law only applied to laborers engaged in public works projects. In other words, the law was far less intrusive as it only applied to a small subset of workers. Second, that law still gave the Oklahoma labor commissioner some authority to determine prevailing wages—in contrast to Initiative Petition 446 which delegates all the discretion to the federal government. Thus, the Court in 1995 held the law “fail[ed] to articulate the necessary guidelines or standards for determining prevailing wages” and struck it down as an unlawful delegation of legislative authority.

Given Initiative Petition 446’s more expansive directive to increase the minimum wage, you might assume the Court decided to keep the initiative off the ballot. You would be wrong. Even Justice Yvonne Kauger—who was on the Court when it struck down the law in 1995—sided with the majority who refused to keep the initiative from moving forward. 

You might be thinking that if the Court was willing to ignore its own precedent it must have given the public a good explanation of why. Again, you’d be wrong. The majority opinion (really just an order) was one paragraph. Six sentences. Why the Court changed course—again with one justice being on both sides of the issue—remains a mystery. Of course, a plausible explanation is the Court’s majority simply changed its mind on minimum-wage policy. 

Justices John Kane and Dustin Rowe wrote compelling dissents, with Justice Kane noting “[t]he People are entitled to Court decisions which comport with existing law or else give clear explanation when departure from extant law is necessary.” Unfortunately for Oklahomans, that criticism went unanswered.

Justice Dana Kuehn wrote an interesting opinion, concurring in part and dissenting in part. She would have allowed the initiative to move forward—not because the petition is constitutional—but because the petition is not law (and therefore not an issue for the judiciary to resolve). After explaining the history of the Court’s involvement with initiative petitions, she concluded “that over the last few decades this Court has been motivated by a desire to ensure that certain measures are either on or off the ballot—to decide for itself what the People should or should not put to a vote.” 

The minimum wage, much less an increase, is bad public policy. But, again, that’s not really the point. In this case, it is likely the Court ignored its own precedent to reach a policy conclusion it preferred. Not only that, but it provided no reasons for this change in course—presumably because there aren’t any it wishes to share. The Chamber asked the Court for a rehearing in order to clarify its reasoning, and the Court denied the request. 

Are you seeing a pattern yet?