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June 18th, 2010

Abolishing the Department of Education?

By Nathan Tucker

Sharron Angle, the Tea Party favorite who won the Republican Senate nomination in Nevada, has been labeled an extremist for, among other things, wanting to abolish the federal department of education.  The Department of Education was signed into law in 1979 by President Jimmy Carter.  At the time, however, the new department was criticized by members of the president’s own party.

“No matter what anyone says, the Department of Education will not just write checks to local school boards. They will meddle in everything. I do not want that,” argued Representative Pat Schroeder (D-CO).  Representative Joseph Early (D-MA) stated that a “national Department may actually impede the innovation of local programs as it attempts to establish uniformity throughout the Nation.”

Senator Patrick Moynihan (D-NY) condemned the new law as a straight political payoff by Carter to teacher unions for their endorsement in the 1976 presidential election.  “This is a back-room deal, born out of squalid politics. Everything we had thought we would not see happening to education is happening here.”

For many years after its creation, abolishing the Department was a staple among Republican politicians.  Ronald Reagan famously pledged to abolish it in the 1980 presidential election, and even such Republicans in Name Only (RINOs) as John McCain supported cutting the Department during the Republican Revolution of 1994.

As late as 1996, the Republican Party platform stated:  “The Federal government has no constitutional authority to be involved in school curricula or to control jobs in the market place.  This is why we will abolish the Department of Education.”  But then came President George W. Bush and No Child Left Behind, which grew the Department by 69.6 percent in just two years.

While there are very good policy reasons why the Department should be abolished, an even stronger argument can be made that Congress just doesn’t have the constitutional authority to either fund or regulate education.  Among the limited and enumerated powers given to Congress in Article 1, section 8 of the Constitution, not one of them has anything to do with education.

In establishing the Department, Congress attempted to explain its constitutional basis as follows:  “The Congress declares that the establishment of a Department of Education is in the public interest, will promote the general welfare of the United States, will help ensure that education issues receive proper treatment at the Federal level, and will enable the Federal Government to coordinate its education activities more effectively.”

None of those bases, however, can be found in the text of the Constitution itself.  Congress’ reasons are quite similar to the Preamble to the Constitution, which reads:  “We the people of the United States, in order to form a more perfect Union, establish justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

As the Supreme Court noted in Jacobson v. Massachusetts (1905), “[a]lthough that Preamble indicates the general purposes for which the people ordained and established the Constitution, it has never been regarded as the source of any substantive power conferred on the Government of the United States or on any of its Departments.”  The reason for this is simple—if the Preamble itself were a grant of power, it would have been pointless for the Framers to follow that all-encompassing grant of power with a constitution of limited and well-defined powers.

The Tax and Spend Clause of Article 1, Section 8, does provide that “Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States.”

But, as with the Preamble, to read the term “general welfare” in this clause to be a broad grant of authority to Congress to tax for whatever purposes it deems would eclipse a written constitution of specific, limited powers given to the federal government.  Congress only has the power to tax and spend in furtherance of its limited constitutional powers, of which education is not one of them.

Instead of being criticized, Sharron Angle should be applauded for having the guts as a candidate for elected office to say “no.”  As unfortunately too many other politicians have discovered, it is all too easy to tell the electorate “yes we can” to win elections rather than, as the Constitution clearly states, “no we can’t.”

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About the Author

Nathan W. Tucker
Nathan W. Tucker is a Davenport attorney and author of We The People: The Only Cure to Judicial Activism. He can be contacted at [email protected]

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