A Baby Dies at Day Care, and a Mother Asks Why She Had to Leave Him So Soon

That is not a part of the constitution, and it hasn't been for a while. Try again.

I studied advanced constitutional law with Ken Starr and Akhil Amar, but I am sure you may know more about the Constitution than I do. Let's use the rest of your post to test that theory.

The general welfare clause is in Article 1 section 8 paragraph one. It deals with the power of taxation.

Unfortunately for your argument, paid family leave is not a Tax, Duty, Impost, or Excise.

It is less your tone and more your ignorance in combination with your condescension that offends me. If Congress tried to pass universal paid family leave, they would undoubtedly attempt to do so under the interstate commerce clause, arguing that women in the workforce have an aggregate effect on interstate commerce, even though maternity leave is by it's very nature, the lack of commerce.

 

I was referring to the one in the preamble. But thank you for providing a more convincing constitutional path to justifying maternity leave (despite your rather half-hearted attempt to claim that paid family leave wouldn't be covered). Ken Starr would be proud.

 

The preamble, of course, has no legal effect. The rules of governance are laid out in the articles and amendments. For someone trying to talk down to people about the constitution, you sure don't seem to know very much about it. The preamble is more like a mission statement. They are saying around what they formed idea of creating this new country. Congress, which is responsible for passing legislation, is governed by Article 1, conveniently labeled "the legislative branch".

While it is true that Congress would rely on the interstate commerce clause today to pass something like paid family leave, I would say it is not constitutionally sound. It is only in the last 80 years or so that the courts have looked favorably on such an expansive reading, and there are indications of a potential reversal in that trend, even in cases such as the review of the Affordable Care Act (can't remember the case name off hand) in which a majority rejected the idea that the interstate commerce clause could support the ACA.

 

I'm enough of an adult to admit you have presented a more thoughtful response than I deserved.

My final question is this - if the FMLA is considered constitutional (due to equal protection from a cursory reading), why not mandatory paid maternity leave?

 

This is silly. Congress can determine what business expenses are tax deductible. For the general welfare of the people, they can simply make wages not deductible as a business expense unless paid leave is included. Since that's a virtual necessity for 99% of businesses, it would have the equivalent effect of being a universal policy.

I'm not saying it's a good idea - in fact, I think it's probably a bad one - but the Constitution is not remotely an impediment.

 

I suspect that the current court might uphold a challenge to the FMLA. The only USSC case I could find (in a rather cursory search to be sure) on the law since the addition of Alito and Roberts to the court wound up with those two joining Scalia, Thomas, and Kennedy in denying relief under the act, relying on state sovereign immunity. Regardless, I don't personally think the FMLA is constitutional for the same reason that the Civil Rights Act is not constitutional. Congress has only those powers enumerated in the Constitution, and regulation of private discriminations in intrastate commerce or lack thereof is not among the powers listed.