Real bill currently in Congress  c/o  HR/119/8663

To amend the Fair Labor Standards Act of 1938 to prohibit discrimination in the payment of wages on account of sex, race, or national origin, and for other purposes.

Latest action (2026-05-04): Referred to the House Committee on Education and Workforce.

The Framers

“Founders’ Verdict”

CONDITIONAL

Confidence 0.50

Synthesis

2-2 split: Hamilton and Marshall (CONSTITUTIONAL under Commerce Clause with limits); Madison and Jefferson (UNCONSTITUTIONAL as state intrusion)

Hamilton YES

The power to regulate commerce among the several States vests in Congress the authority to address practices in enterprises engaged therein that burden or obstruct such commerce, including discriminatory wage payments which distort labor markets and impede the free flow of commerce essential to the Union. Amending existing labor standards legislation to prohibit such discrimination falls squarely within this enumerated power and the necessary means to execute it, as a vigorous federal regulation of commerce is indispensable to national prosperity and unity against the weaknesses of state paroc…

Article I, Section 8, Clause 3 Federalist No. 11
Jefferson NO

The proposed amendment to the Fair Labor Standards Act seeks to regulate private wage agreements between employers and employees on the basis of sex, race, or national origin. Such regulation exceeds the enumerated powers of Congress, as no provision in the Constitution grants the federal government authority over intrastate labor contracts or private associations. These matters pertain to individual liberty and the reserved powers of the states or the people, as affirmed by the Tenth Amendment. The Commerce Clause empowers Congress to regulate commerce among the states, but it does not extend…

Tenth Amendment Article I, Section 8, Clause 3
Madison NO

The proposed amendment to the Fair Labor Standards Act seeks to prohibit discrimination in the payment of wages on account of sex, race, or national origin. While Congress possesses the enumerated power to regulate Commerce among the several States, this measure exceeds that authority by intruding upon the regulation of private contracts and labor relations, which are not interstate commerce but matters of local police power reserved to the States. Such prohibitions dictate the terms of compensation based on personal characteristics, extending federal authority into the indefinite powers of th…

Article I, Section 8, Clause 3 Amendment X Federalist No. 45 Federalist No. 42
Marshall YES

The proposed amendment to the Fair Labor Standards Act, prohibiting discrimination in wage payments on account of sex, race, or national origin, falls within Congress's enumerated power to regulate Commerce among the several States, as granted by Article I, Section 8, Clause 3 of the Constitution. In Gibbons v. Ogden (1824), this Court held that commerce comprehends not merely traffic but intercourse for purposes of trade, extending to economic activities substantially affecting interstate exchange, such as employment contracts and wage structures. The regulation of wages to prevent discrimina…

Article I, Section 8, Clause 3 Article I, Section 8, Clause 18 Gibbons v. Ogden (1824) McCulloch v. Maryland (1819)

What should pass

“AI Consensus Solution”

Read full document →

Interstate Fair Pay Standards Act

Prohibit discrimination in wage payments based on sex, race, or national origin by amending the Fair Labor Standards Act.

Bipartisan rationale: Honors Democratic priorities of expanding pay equity protections for women and minorities with strong remedies; honors Republican priorities of strict limits to Commerce Clause enterprises only (excluding small/intrastate businesses and states), low-cost enforcement cap, sunset for review, and no new mandates on non-federal actors.

Funding: New appropriation from general Treasury fu $15 million annually (capped, Sunset 8y Oversight: DOL Inspector General with sem Enforcement: DOL Wage and Hour Division investiga

Vote-count path: ~245 House votes: 195 D worker advocates + 50 R federalists/small biz caucus; ~64 Senate votes: 49 D + 15 R commerce-limited moderates.

→ Article I, Section 8, Clause 3 (regulates commerce among states and enterprises affecting it) → Tenth Amendment (reserves intrastate wage regulation to states) → Fifth Amendment Due Process (limits remedies to equitable relief with notice and hearing)

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