Getting back to the Constitution in education
In an executive order issued April 26, President Donald Trump ordered a rollback of what he termed “a federal power grab” in education. Constitutionally, this order is profound and long overdue.
The order begins, “By the authority vested in me as President by the Constitution and the laws of the United States of America, and in order to restore the proper division of power under the Constitution between the Federal Government and the States … it is hereby ordered as follows.” The order then instructs the Secretary of Education, Betsy DeVos, to review and report on regulations and directives as far back as the Elementary and Secondary Education Act of 1965. Highlighted for her review were the General Education Provisions Act of April 30, 1970 — Dec. 10, 2015, the Department of Education Organization Act of Dec. 10, 2015 and the Every Student Succeeds Act, also of December 2015, which replaced George W. Bush’s “No Child Left Behind” with Obama’s “Common Core.”
The word education is not found in the Constitution, nor inferred, and no new amendment to the Constitution has been added moving education from a state to a federal prerogative. Instead, from its inception, the Constitution protected the philosophy of federalism (shared government) — the federal government to manage foreign, the states to manage domestic policy. Some ill-informed might argue that certainly the words “general welfare” in the document included education, but this phrase was restricted to seven areas (Article I, Sec. 8, Clauses 2-9) specifically identifying what was to be general welfare, with education excluded.
Otherwise, the federal government might conclude that it should manage everything in the name of general welfare. This interpretation could destroy the Constitution as a restrictive document on governmental power. And this is what was meant by the words in the Trump executive order “to restore the proper division of power under the Constitution between the Federal Government and the States.”
Until 64 years ago, the federal government honored this division of power, leaving education to the states as constitutionally designed. Its first major inroad into this area was the creation of the Department of Health, Education and Welfare on April 11, 1953. Heretofore, both health and education were understood to be state prerogatives only. President Jimmy Carter signed the bill creating the Department of Education on Oct. 17, 1979, without Constitutional authority. This action resulted from the immense pressure applied by the “all powerful” teacher union—the National Education Agency — which sought to nationalize education, removing it from local control. Carter rewarded their support in his election with the new cabinet post.
But an executive order is not enough and can be rescinded by the next president, as Trump is doing to the orders of his predecessor. The executive order restricts itself to “under the law” and Congress (both parties) clearly passed these major education laws identified in the order. Trump must more fully hinge his argument on the Constitution and on the doctrine of federalism which preceded the Constitution as a carry-over from the Articles of Confederation, our first national constitution. He should do so by arguing that he has no authority to enforce law that violates the separation of powers as created by the Constitution, which he has sworn to uphold. He must also encourage Congress to rescind those laws or, through the states, create a new amendment to the Constitution using Article 5 of the Constitution. Otherwise this immediate victory, his executive order, will be short lived.
One of the first questions I ask students in an introduction to government class, since every textbook has a chapter on federalism is, “Who cares most whether Johnny can read, his mother or federal bureaucrats located hundreds and often thousands of miles away?” It is generally agreed his mother does and is in a position to do most to remedy the problem by direct access to his teacher and school, and she can run for the school board if not satisfied.
A second question, “Who suffers most if the school fails Johnny?” Again, his mother does because the responsible bureaucrats have moved on and she is left long-term with the consequences of their failure with Johnny. As a life-long student or instructor, I have never seen evidence that the federal government can better administrate the needs of Johnny than most parents.
My best and most caring teacher did her “magic” in a remote country school of two rooms; one a library, the other a classroom. She taught all grades, 1-8, at once with two or more students from each grade. She had no electronic aid or devices — only a chalkboard and books. Government policies and money raining down from afar generally discourage individuality in teaching and creativity. Instead, they often spawn collective thought — the enemy of real education — by their distribution of money favoring some ideas and groups over others.
Federalism and the wisdom of the Founding Fathers to retain it and to specifically list the powers of the federal government in Article I, Section 8, leaving all other powers — in this case education — at state and local levels, was brilliant. Hopefully, the Trump executive order will strike a new public debate which eventually removes all federal influence and funding in education.
Trump is not yet a constitutionalist, but this move alone shows him closer than the vast majority of presidents in my lifetime.
Harold W. Pease, PhD, is a syndicated columnist and an expert on the United States Constitution. He has dedicated his career to studying the writings of the Founding Fathers and applying that knowledge to current events. He has taught history and political science from this perspective for more than 30 years at Taft College. To read more of his weekly articles, please visit www.LibertyUnderFire.org.