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.” 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. Highlighted for her review were the General Education Provisions Act April 30, 1970—Dec. 10, 2015, the U.S. Department of Education Organization Act Dec. 10, 2015, and the Every Student Succeeds Act also of December 2015, which replaced former President George W. Bush’s No Child Left Behind with former President Barack 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 or shared government; the federal government was to manage the foreign policy and the states were to manage domestic policy. Some ill-informed people might argue that certainly the words “general welfare” in the document included education, but this phrase was restricted to seven areas in 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 return to restrictiveness 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 April 11, 1953. Previously, both health and education were understood to be state prerogatives only. President Jimmy Carter signed the bill creating the Department of Education 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 his predecessor. The executive order restricts itself to “under the law” and both parties in Congress 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 introductory 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 that his mother does and is in a position to do the most to remedy the problem by direct access to his teacher and school, and she can run for the school board if not satisfied with current results.
A second question, “Who suffers most if the school fails Johnny?” Again, his mother suffers the most, 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 and 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 room was a library, the other was 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 were available. Government policies and money raining down from afar generally discourage individuality in teaching and creativity. Instead they often spawn collective thought, which is 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 and 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 and eventually remove all federal influence and funding in education. Trump is not yet a constitutionalist, but this move alone shows him to be 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 to 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, visit www.LibertyUnderFire.org.