Dear Ms. Trump,
First of all, I want to thank you for serving as a positive role model for girls across the nation. You demonstrate an admirable combination of strength, dignity and compassion.
I am grateful for many of the policies being promoted by the Trump administration, but I am deeply troubled by the “paid family leave” proposal, for one simple reason: Our Constitution does not give the federal government power to mandate that private businesses provide their employees with paid family leave. For that reason, every American who recognizes the importance of the rule of law should oppose this policy that seeks to thrust Congress into a role only the states were meant to play.
For far too long, Congress has abused its Article I power to regulate commerce “among the several states.” This clause was meant to enable the national legislature to enact laws necessary to ensure the orderly shipment of goods across state lines. A quick review of the text of Article I reveals that Congress’ authority to regulate commerce among the states is not a hair broader than its power to regulate commerce with foreign nations. Obviously, that doesn’t give Congress power to regulate foreign agriculture or control the manufacture of goods inside other nations – nor to mandate employment policies for businesses in other countries.
Today, Washington performs so many functions under the guise of its interstate commerce power that one would think the Constitution had given it absolute power over any and every commercial activity that occurs in the nation. This stretching of the interstate commerce clause beyond recognition has obscured the intricate design of federalism in which the national government exercises few, limited powers and the states enjoy many, broad powers.
As federalism fades, American citizens lose the benefit of the most basic protection of their liberties – the structural protection.
The late Justice Scalia explained it well:
“Structural protections – notably, the restraints imposed by federalism and separation of powers – are less romantic and have less obvious a connection to personal freedom than the provisions of the Bill of Rights or the Civil War Amendments. Hence, they tend to be undervalued or even forgotten by our citizens. It should be the responsibility of the Court to teach otherwise, to remind our people that the Framers considered structural protections of freedom the most important ones, for which reason they alone were embodied in the original Constitution and not left to later amendment. The fragmentation of power produced by the structure of our Government is central to liberty, and when we destroy it, we place liberty at peril.”
To be clear, I fully support the goals behind the paid family leave proposal. It is commendable to provide mothers and fathers with the opportunity to invest their full time and energy into their families at critical life junctures. In fact, I believe that stabilizing and strengthening America’s families is an essential prerequisite to “making America great again.” There are precious few ways, however, in which government can facilitate this – and fewer still in which the federal government can do so.
You may be right to classify the paid family leave proposal as an “investment” rather than an “entitlement.” But at the end of the day, the issue isn’t how you classify the program from a fiscal policy perspective; at the end of the day, the issue is power. The states have the power to decide to make this “investment”; Congress does not.
We can lament that the Supreme Court has failed to enforce the structural protections of our Constitution and to limit the national government to its actual, enumerated powers. Better yet, we can use the solution the founders provided to remedy the situation. But those who revere our Constitution must not respond by jumping on the bandwagon and heaping our own constitutionally illegitimate federal policy proposals upon those that have been allowed to infiltrate our federal system. Any public official who seeks to “make America great again” must start with an allegiance to the operating manual – our Constitution – that was so essential to making it great to begin with.
Image Credit: By The White House [Public domain], via Wikimedia Commons