Introduction

The Fair Labor Standards Act was enacted to ensure that workers were paid minimum wages and overtime compensation in a national economy where states had proven unable or unwilling to prevent substandard labor conditions. Whatever one thinks of the New Deal expansion of federal power, the statute’s original justification was rooted in regulating labor conditions that substantially affected interstate commerce.

What the statute was not designed to do—and what the Constitution does not contemplate—is to function as a litigation weapon that overrides state law remedies, nullifies traditional principles of offset, and coerces settlement through the threat of disproportionate attorney’s fees untethered from the underlying dispute.

The modern application of the FLSA has drifted far from its constitutional and historical foundations. In doing so, it raises serious questions not merely of policy, but of structure—questions about federalism, enumerated powers, and the judiciary’s role in preserving balance between sovereigns.

This essay examines those questions through first principles.

The Commerce Clause and the Limits of Federal Power

The FLSA rests on Congress’s authority under the Commerce Clause. That authority is broad, but it is not unlimited. As Chief Justice Marshall explained in McCulloch v. Maryland, federal power must be both enumerated and consistent with the constitutional structure. The Necessary and Proper Clause is not a blank check.

The high-water mark of Commerce Clause expansion came with Wickard v. Filburn, where the Court held that even purely intrastate conduct could be regulated if, in the aggregate, it exerted a substantial effect on interstate commerce. Wickard remains the foundation upon which statutes like the FLSA rest.

But Wickard did not abolish limits. It did not hold that Congress may regulate any dispute it labels “economic.” Nor did it suggest that federal statutes may obliterate state law remedies through procedural leverage rather than substantive supremacy.

Indeed, later decisions such as United States v. Lopez and United States v. Morrison reaffirmed that the Commerce Clause has judicially enforceable boundaries. Justice Scalia, concurring in Lopez, emphasized that federal regulation must be tied to genuine economic activity and must respect the constitutional allocation of authority between state and federal governments.

The problem with modern FLSA enforcement is not that Congress lacked power to regulate wages. It is that the enforcement regime has evolved into something qualitatively different from wage regulation.

Fee Shifting as Structural Coercion

The FLSA mandates attorney’s fees for prevailing plaintiffs. In theory, this ensures access to counsel. In practice, it creates a distortion that overwhelms the underlying wage dispute.

Under the statute, a claim involving a few thousand dollars in alleged unpaid wages can generate tens or hundreds of thousands of dollars in fee exposure. The statute contains no meaningful proportionality requirement. Nor does it require courts to consider competing liabilities arising from the same facts.

This is not incidental. It is the engine that drives modern FLSA litigation.

The result is a system where the risk calculus is inverted. Employers are forced to evaluate settlement not based on liability for wages, but based on fear of runaway fees. The merits of defenses, the existence of counterclaims, and even evidence of wrongdoing by the plaintiff become economically irrelevant.

That is not adjudication. It is leverage.

Offset, Arithmetic, and the Common Law Tradition

At common law, courts did not pretend that debts existed in isolation. Where two parties owed obligations arising out of the same relationship, courts applied offset. Justice was arithmetic-aware.

This principle remains embedded in state law. Florida, for example, authorizes civil theft claims with treble damages and fee shifting precisely to deter intentional misconduct. That legislative choice reflects a moral and economic judgment: theft is worse than breach, and intentional wrongdoing deserves enhanced consequences.

Yet in federal wage litigation, courts routinely treat FLSA claims as immune from meaningful offset, even where the plaintiff’s conduct gives rise to serious state-law liability.

The consequence is doctrinal absurdity. A plaintiff may recover statutory attorney’s fees on a nominal wage claim while owing substantially more to the defendant on a related theft claim. The law becomes blind to net justice.

Nothing in the Supremacy Clause requires this result.

Federal Supremacy Does Not Mean Federal Erasure

The Supremacy Clause provides that valid federal law prevails over conflicting state law. It does not require federal courts to ignore state law altogether, nor does it authorize federal statutes to function as economic bulldozers flattening state remedies through procedural design.

As Justice Scalia repeatedly emphasized, the Constitution’s structure matters. Federal power is supreme within its sphere, but that sphere is defined.

When a federal statute effectively forces the abandonment of state-law claims—not because they conflict with federal law, but because the cost of asserting them becomes prohibitive—the statute ceases to operate as a regulation of commerce and begins to operate as a coercive mechanism.

That is a structural problem, not merely a policy choice.

Lynn’s Food and the Misplaced Focus of Judicial Review

Lynn’s Food Stores, Inc. v. United States was decided to address a specific abuse: settlements in which employees were shortchanged by employers or by their own counsel. The Eleventh Circuit required judicial or Department of Labor approval to ensure fairness to workers.

The case was not about protecting attorneys’ fees. It was not about preventing employers from asserting legitimate defenses. And it was certainly not about immunizing plaintiffs from the consequences of their own misconduct.

Yet in modern practice, Lynn’s Food review has become one-sided. Courts scrutinize employee recoveries but rarely interrogate whether fee demands themselves distort justice. So long as the employee receives nominally “full” wages, the machinery moves forward.

This inversion of concern would not have impressed Justice Scalia, who consistently warned against judicial doctrines that drift beyond their original justification and take on lives of their own.

The Unconstitutional Conditions Problem

There is a deeper constitutional concern lurking beneath the surface: the doctrine of unconstitutional conditions.

When the government conditions the avoidance of severe penalties on the surrender of unrelated rights, constitutional alarm bells should ring. Here, employers are effectively told that to avoid catastrophic fee exposure, they must surrender state-law claims arising from the same facts.

That is not a voluntary waiver in any meaningful sense. It is compulsion by design.

Justice Scalia was deeply skeptical of doctrines that achieved results indirectly that the Constitution would forbid directly. A statute that coerces the abandonment of state remedies through fee pressure raises precisely that concern.

A System That Rewards Filing Over Resolution

In the scenario considered here, the employer had a paycheck prepared and available. The employee did not seek it. Instead, counsel was retained and a federal lawsuit was filed without a demand.

Why? Because the statute rewards immediate filing. Fees accrue from day one. Settlement pressure begins immediately. The incentive is not compliance; it is litigation.

Meanwhile, alleged criminal misconduct by the plaintiff—actionable under state law with treble damages and fee shifting—becomes economically irrelevant because the federal fee risk overwhelms all else.

This is not balance. It is distortion masquerading as protection.

Conclusion

The FLSA serves an important purpose. But its modern enforcement regime, particularly when combined with uncritical application of Lynn’s Food, has drifted far from constitutional first principles.

A system that ignores offset, marginalizes state law remedies, and allows attorney’s fees to eclipse substantive justice is not merely unfair. It is structurally unsound.

Justice Scalia often reminded us that the Constitution is not a document of outcomes, but of structure. When structure is ignored, liberty and fairness erode—even in the name of good intentions.

If federal labor law is to retain legitimacy, it must once again respect arithmetic, federalism, and the limits of enumerated power. Otherwise, we will continue to see justice determined not by right and wrong, but by who can weaponize fee exposure most effectively.