The fact that we celebrate the Every Student Succeeds Act for shifting education policy back to the states is an alarming indicator of federal dysfunction. Instead of rejoicing about a reduced extent of unauthorized federal meddling in state affairs, we should work to remove the heavy hand of centralized government entirely from every sphere in which it has no legitimate authority.
A quick visit to the U.S. Department of Education’s website reveals just how thoroughly the feds have burst the seams of their constitutional pants. There we find the agency reminding states about deadlines for submitting “State plans” for education – creating the distinct impression that it possesses some broad power to oversee education policy nationwide.
Its means of exercising this assumed power is the Elementary and Secondary Education Act, as amended by ESSA. This legal tome instructs our state governments in the crafting of these “State plans” to be delivered to the Supreme Education Rulers according to the aforementioned deadlines. It is an intricate, 449-page web of detailed instructions for the states, which are relegated to a serf-like role: find ways to achieve the priorities of the Almighty Department (never mind the priorities of parents) and then invest resources into demonstrating that you have done so.
It’s no wonder President Ronald Reagan referred to the U.S. Department of Education as a “bureaucratic boondoggle.”
From a practical perspective, one has to wonder why anyone thinks the states need guidance from a federal agency. Does someone think that federal officials are smarter, better-trained, or care more about education than their state counterparts?
From a constitutional perspective, one has to wonder why anyone thinks that the national government has any power over public schooling. Read through Article I, Section 8, which enumerates Congress’ powers. It mentions nothing about education. Yet Congress purposes in Title I of the Act to “provide all children significant opportunity to receive a fair, equitable, and high-quality education, and to close educational achievement gaps.” It’s a laudable goal, but one that Congress is utterly without power to pursue.
The intrepid statist will argue that it is perfectly legitimate, pursuant to its power to “provide for the … General Welfare,” for Congress to foist burdensome taxes upon its citizens, and then lovingly send those dollars back to states that are willing to navigate its – ahem – brilliant web of educational policies.
It’s an argument that makes a mockery of the Constitution, as explained by both James Madison and Alexander Hamilton.
Speaking of the General Welfare Clause, Madison said, “For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the precedent general power? Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars.”
In other words, the General Welfare Clause is limited by the specific, enumerated powers that follow it.
Alexander Hamilton, the framer who most favored a powerful national government, conceded in Federalist 83 that “[A]n affirmative grant of special powers would be absurd as well as useless if a general authority was intended.”
Of course, a “general authority” was not intended. The Founding Fathers certainly did not intend for the national government to be making education policy, nor did they provide it with the constitutional authority to do so. The argument that the General Welfare Clause gives Congress an all-encompassing power over the states – which operates very much like bribery, I must add – is specious.
Because we have allowed it to prevail, however, only drastic action can remedy this dysfunction. Definitive correction requires a constitutional amendment that explicitly rejects this perversion of the General Welfare Clause, clarifying that Congress’ power to tax and spend may only be used in conjunction with its specifically enumerated powers.
Congress will certainly never propose such an amendment, so the states must do so through the Article V convention process. Through this process, we could also require Congress to reduce federal taxes by the percentage corresponding to its prior expenditures in education. In other words, we can demand that Congress leave both the power over education, and the money for education, in the states that provide the education.
For now, though, let’s at least nix the celebration when Congress throws the states a bone by “allowing” them more discretion in education. That bone was never Congress’ to throw.
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Rita M. Dunaway is a constitutional lawyer whose commentaries are featured regularly on TheBlaze.com and other conservative news websites. As National Legislative Strategist for The Convention of States Project, Dunaway encourages state legislators to use their constitutional authority to restore the robust federal system designed by the Constitution.
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