On Wednesday the President signed the “Speak Out Act,” now Public Law 117-224. The law exempts disputes over sexual assault or harassment from pre-signed nondisclosure or nondisparagement agreements, in the hopes of encouraging survivors to come forward without fear of being sued.

Putting the policy virtues to one side, I’m wondering: what’s the source of congressional authority here? A state might decide to void new NDA contracts in this way, as a matter of public policy. But if state law would enforce them, can Congress tell them not to?

Most of the standard jurisdictional-nexus clauses are missing from the Act. For example, the Act isn’t limited to contracts evidencing transactions in interstate commerce, as in the Federal Arbitration Act. It isn’t limited to harassment (or to contracts) that involved the channels or instrumentalities of interstate commerce, or that are otherwise governed by federal law. It isn’t limited to D.C. or the territories. And it isn’t limited to claims filed in federal court: it applies equally to states and localities enforcing their own laws.

[I’m curious about another question, perhaps less constitutional and more philosophical: if someone is willing to sell their silence, is it government’s role to prevent it? — Ed]