Republican “Constitutionalists” Ignore the Constitution on Family Leave

By: Suzanne Sherman

Republicans in Congress love to invoke the Constitution — until they don’t.

On May 2, 2019, United States Senator Mike Lee (R-Utah) posted the following on his Facebook page:

“Article I, Section 8 of the Constitution unequivocally states that Congress shall have the power to declare war – Congress, not the President, not the Pentagon, not someone else within the Executive branch, but Congress.”

Senator Lee is correct in his assertion. But his emphatic application of the Constitution is inconsistent.

Less than two weeks later, Lee expressed his support for the unconstitutional CRADLE Act, a federally-mandated, paid maternity leave program.

According to the Boston Globe “…women of all political stripes view paid maternity leave as an important issue.” Further, the article asserts that the United States is the only industrialized country not providing cash benefits to women during maternity leave and cites data from the (unconstitutional) Bureau of Labor Statistics indicating that only 13 percent of private-industry employees enjoy formal paid family leave. The (also unconstitutional) 1993 Family and Medical Leave Act does guarantee 12 weeks of time off to care for a new child, but that time is unpaid.

While all of the above may be true, the first inquiry, particularly from a United States Senator should be, “Is paid maternity leave a proper issue for Congress to address from a constitutional perspective?” After all, Senator Lee was certainly upset when it appeared the executive branch was encroaching upon a power delegated to Congress. But his concern for the Constitution apparently vanishes when it requires Congress to restrain itself.

A survey by Hearts and Mind on the issue of paid maternity leave revealed respondents were cautious about expanding the scope of government, and that nearly two-thirds felt that any federal leave plan should be fiscally responsible and “not increase the total amount of money the government spends” or increase the taxpayer burden. Jennifer C. Braceras, the author of the article in the Boston Globe, laments that the FAMILY Act, sponsored by Senator Kirsten Gillibrand (D-N.Y.), would not meet these criteria.

By contrast, Ms. Braceras praises a bill sponsored by Senator Marco Rubio (R-Fla.) and another introduced by Senators Joni Ernst (R-Iowa) and Mike Lee. The latter proposals will give paid leave without increasing the taxes on workers or burdening businesses. Funds for time paid during parental leave would be taken from (the also unconstitutional) Social Security benefits at the time of retirement. Everyone knows that Social Security is destined to run out of funds, so in no way can this plan be made in good economic faith.

Journalists and those advocating for policies they prefer, are not encumbered by the restraints of the Constitution, so Ms. Braceras rightly compares and contrasts the fiscal pros and cons of each plan. United States Senators, however, are encumbered by such constraints, or at least they’re supposed to be.

The people, through their state delegates, created a federal and not a national system, as explained by James Madison in Federalist #39. And in Federalist #45, Madison clearly delineated the limits on federal power.

“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the state governments are numerous and indefinite…The powers reserved to the several states will…concern the lives, liberties and prosperities of the people, and the internal order, improvement, and prosperity of the state.”

The Tenth Amendment reaffirms this principle, stating that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

When ratifying the Constitution, the people of the states delegated specific powers to the general government. Congressional powers are enumerated specifically in Article I, section 8 — a section Senator Lee is aware of, yet applies this fundamental constitutional principle only when convenient.

Clearly, there is no Constitutional authority for any type of family leave act. (Before yelling, “general welfare,” you should read this.) One has to wonder why a “conservative” Senator like Mike Lee would be in support of it.

In his book Nullification: Reclaiming Consent of the Governed, historian Clyde Wilson explains that the “Founding Fathers did not anticipate the ravages of the two-party system and its abilities to foist cunning mediocrities on the public.” He further explains that our representatives today, creatures of the political parties, “are more adept at winning offices than at filling them, at conniving and self-promotion than at statesmanship.”

That fact that family leave benefits are provided by every other industrial nation around the world is of no concern to us from a constitutional perspective — absent an amendment pursuant to Article V. Senators in support of the proposed CRADLE Act are guilty of hoisting the constitutional flag when it suits their needs; here, they are playing identity politics, pandering to women voters to benefit their respective parties.

This plan, like minimum wage regulations, is rife with the possibility of unintended consequences. Recall the economist Milton Friedman’s admonition about judging policies and programs by their intentions rather than their results. As for the Democrats’ plan, Benjamin Franklin comes to mind, as he warned us “When the people find that they can vote themselves money that will herald the end of the republic.”

Family Leave is a matter that was never delegated to the general government. States, therefore, have the exclusive authority regulate in this area. Ultimately, the best solution should come from the free markets, but I don’t foresee states or the federal government permitting them to do so.

Ms. Braceras concludes her article by saying, “This spring, let’s make good on our Mother’s Day tributes by giving mothers what they really want: paid time off with a new child.”

As for me, I prefer to leave these new children with a legacy of limited government respective of its proper role and constitutional restraints.