Policymaking is Happening Everywhere But Congress

11/22/19

As HR Policy Association advocates for our members on Capitol Hill, few issues unite Democrats and Republicans more than when we suggest a unified national standard on just about any policy issue.  Whether it is paid leave, data privacy, corporate governance matters, you name it, the idea that federal preemption is needed to quell an unworkable maze of state and local laws is met with a bipartisan “talk to the hand.”

Traditionally, or at least in my 20-some years in DC, Republicans usually reject federal solutions citing the Founding Fathers, who left the powers not delegated to the federal government to the states.  Conservatives have been and remain big fans of the notion of “laboratories of democracy” where states can road test ideas on a smaller scale.  Indeed, the states are closer to the people. 

Since the New Deal, Democrats have leaned toward a stronger central government and have been fans of the Supremacy Clause that suggests federal law displaces state law if the two are in conflict. 

Congress seems little-able to find solutions to the biggest questions.  Issues from immigration to workplace policy to civil rights are left to the states, the courts, and the president’s phone and pen.  Congress, which is outlined in Article I of the Constitution ahead of the president and the courts, has abdicated much decision making to less politically divided states or says with a shrug “let the courts sort it out.” 

Notwithstanding their New Deal roots, these days Democrats are more than happy to have states like California and localities blaze a path toward more progressive policies with little or no GOP opposition. The Republicans are faced with two unpleasant choices – either the central government does more, or the strictest regimes carry the day and most leftward policies become the national standard. 

Both parties understand, for example, that Massachusetts’s paid leave trust fund paid for by employers and workers could be a template for other states and the Feds.  Likewise, the Bay State law also includes an exemption or “safe harbor” for employers that offer a qualifying leave plan with equal or greater benefits than the law mandates.   

And California’s consumer privacy bill may become a de facto national standard, as other states are poised to take up the issue next year. 

HR Policy members appreciate the problems with conflicting laws from coast to coast on leave, board diversity, pay history, the list goes on.  Employers could adapt and adopt the maximum number of paid leave days called for among the states, for example.  But the administrative underpinning of each of those state laws often differs and is impossible to reconcile.   

The employer community should find new ways to make our case for national standards or a safe harbour where they make sense in workplace policy.  We will stress that, as the Constitution’s Commerce Clause states, “Congress has the power to regulate commerce with foreign Nations, and among the several States, and with the Indian Tribes.”  In the 1780s, interstate commerce was rare, difficult, and happened only at defined points -- ports, then train depots, then as linked by the highway or air travel system.   

Now interstate, and indeed global commerce, can be conducted in one’s basement wearing bunny slippers.  Thus, its regulation should not be piecemeal or patchwork.  

We can further argue that while some issues may be better handled by the states to start, the federal government should “own” interstate commerce policy and regulations. 

But really, it’s time for Congress to get its mojo back and act like Article I.