In reviewing the various legal prohibitions, contracts, etc., it seems that a direct approach is the primary way. For example, in Justice Holmes’ dissenting opinion in Hammer v. Dagenhart: “The first step in my argument is to make plain what no one is likely to dispute—that the statue in question is within the power expressly given to Congress if considered only as to its immediate effects and that if invalid it is so only upon some collateral ground” (341). The implication is that such a direct interpretation should be fairly uncontroversial for either side. Yet the crucial question is what exactly is the limit of such a direct interpretation. As Holmes continues, “[the] question then is narrowed to whether the exercise of its otherwise constitutional power by Congress can be pronounced unconstitutional because of its possible reaction upon the conduct of the States in a matter upon which I have admitted that they are free from direct control” (341). Given the outcome of the majority opinion, there is clearly room for an indirect interpretation insofar as a conflict is recognized as such. And why should the State be privileged in such an encounter? Perhaps it should rather be as Holmes suggests: “[Congress] may carry out its views of public polic policy whatever indirect effect they may have upon the activities of the States . . .” (341).

This approach to the question, however, is ultimately unsatisfactory because it is somewhat unstable; specifically, it works both ways. If the problem is identified as a formal or procedural issue, it is possible to alter the outcome by tweaking certain starting premises. Moreover, a more serious issue is perhaps the implication that anything not explicitly identified as unconstitutional or illegal is therefore authorized by the law. In relation to the case in question, even where laws explicitly prohibit the exploitation of women or children, does this not become precisely an invitation to exploit those who are not explicitly protected by the law?