By Harold Pease, Ph. D
In an executive order (EO) 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 over due.
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.” It instructs 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 (ESEA). Highlighted for her review were the General Education Provisions Act (GEPA) April 30, 1970—Dec. 10, 2015, the Department of Education Organization Act (DEOA) Dec. 10, 2015, and the Every Student Succeeds Act also of Dec. 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 it 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 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 they 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. Their first major inroad into this area was the creation of The Department of Health, Education, and Welfare (HEW) 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 October 17, 1979; without constitutional authority. This action resulted from the immense pressure applied by the “all powerful” teacher union—the National Education Agency (NEA)—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 his predecessor. The EO 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 EO, will be short lived.
One of the first questions I ask students in an into 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 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 can run for the school board if not satisfied.
A second question, “Who suffers most if the school fails Johnny?” Again, his mother as 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 administrate the needs of Johnny better 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. 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.
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 E O will strike a new public debate eventually removing 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.
Dr. Harold Pease 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 over 30 years at Taft College. To read more of his weekly articles, please visit www.LibertyUnderFire.org.