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Congressman Massie's Perennial Tilting At The Department Of Education Windmill
The Department Of Education Is The Poster Child Of Unconstitutional Government. Eliminate It.
As has been his custom in the past several sessions of Congress, Congressman Thomas Massie (R-KY4) has once again introduced a bill to terminate the Department of Education.
Republican Kentucky Rep. Thomas Massie has reintroduced H.R. 899 for the 118th Congress, which seeks to eliminate the U.S. Department of Education.
Congressman Massie has introduced this bill1 at the beginning of the first session of each Congress since 2017, changing only the date for the Department of Education to shut down (always the very last day of the 2nd session of the particular Congress). Accordingly, even though the text of the bill has not yet been published, we may surmise what its single sentence says, based on the text of this same bill introduced in the previous Congress in 20212.
Update the year to 2024 and we almost certainly have the contents of this year’s iteration of the bill.
Why does Congressman Massie want to shut down the Department of Education?
His reasoning is simple: Congress never had the authority to create the Education Department. Nowhere in the enumerated powers assigned to the Congress by the Constitution is the word “education” even found. Thus Massie announced his bill last week with a simple tweet.
While Congressman Massie’s bill has almost no chance of becoming law (the Democrats in the Senate and the White House are sure to oppose it), it nevertheless deserves several moments’ consideration just because it stands as an effort to return the US government to its proper Constitutional boundaries. If the Constitution does not authorize Congress to create a Department of Education, then no matter how benign or innovative the intention for such a Department may be, Congress lacks all competence to create or fund the Department of Education—and the Constitution does not authorize Congress to create a Department of Education.
As of this writing, 16 other Representatives agree with Massie, that the Department of Education is the poster child for unconstitutional governance.
Congress recently approved a $1.7 trillion budget for the government, including $79.6 billion for the Education Department. Of that funding, $45 billion is going to K-12 programs, with the majority allocated to grants for low-income neighborhoods and special-education programs, and about $30 billion is going to higher education and federal student aid funding, including loans and Pell Grants.
So if the department were to be eliminated, those programs would either be gone — or transferred to a new agency, which would preclude the budgetary savings that Republicans are hoping for.
The irony of their snark, of course, is that it completely glosses over Massie’s main objection to the Department of Education: the intrusion of an unelected federal bureaucracy into a state and local issue—the essence of what unconstitutional exercise of federal power is, and which Massie has told the media repeatedly:
When Insider asked Massie how abolishing the department would impact programs and laws that specifically rely on the department, he said that "unelected bureaucrats in Washington, D.C. should not be in charge of our children's intellectual and moral development."
"States and local communities are best positioned to shape curricula that meet the needs of their students. Schools should be accountable," he said. "Parents have the right to choose the most appropriate educational opportunity for their children, including home school, public school, or private school."
Lost in their condescension is the reality that, just as there is no Constitutional authority for the Department of Education, neither is there Constitutional authority for any of the federal government programs administered by the Department. Regardless of how well intentioned the programs might be, the federal government lacks Constitutional authority to disburse the public fisc in such manner.
What the corporate media is apparently unable to grasp is that Massie’s answer is the complete answer: the federal government has no lawful authority in the realm of education, and so its exercise of authority in the realm of education must cease.
As the Department of Education itself acknowledges on its website, education is a matter for state and local government to address.
Education is primarily a State and local responsibility in the United States. It is States and communities, as well as public and private organizations of all kinds, that establish schools and colleges, develop curricula, and determine requirements for enrollment and graduation. The structure of education finance in America reflects this predominant State and local role. Of an estimated $1.15 trillion being spent nationwide on education at all levels for school year 2012-2013, a substantial majority will come from State, local, and private sources. This is especially true at the elementary and secondary level, where about 92 percent of the funds will come from non-Federal sources.
Going by the text of the Constitution, education is actually the exclusive responsibility of state and local government. However, even with the ED’s formulation of education being “primarily” a state and local matter, the Department stands as a substantial intrusion of Federal government into a realm in which it has no clear authority or remit for involvement. State and local government funds education, and state and local government is meant to run education.
Moreover, the Department of Education is also conceding that the impact of its elimination is, in the worst case, the termination of roughly 8% of overall school funding within the United States. That is a significant percentage, but it is hardly a crippling loss of funding.
It is especially not a crippling loss of funding considering how little bang has been gotten for the US taxpayer buck. In 2017, Pew Research found the United States lagging significantly behind other First World countries in the educational achievements of 15 year olds3.
One of the biggest cross-national tests is the Programme for International Student Assessment (PISA), which every three years measures reading ability, math and science literacy and other key skills among 15-year-olds in dozens of developed and developing countries. The most recent PISA results, from 2015, placed the U.S. an unimpressive 38th out of 71 countries in math and 24th in science. Among the 35 members of the Organization for Economic Cooperation and Development, which sponsors the PISA initiative, the U.S. ranked 30th in math and 19th in science.
Not only is the intrusion of federal authority into education not constitutional, it is also not very effective. These educational results speak more to wasted resources than to excellence in public administration. These educational results speak to wasted resources dispensed illegally and inappropriately in open defiance of legitimate Constitutional authority.
Additionally, the Department of Education’s student loan programs have become both a national scandal and a financial crisis in their own right, so much so that the White House has unilaterally moved to cancel large numbers of outstanding student loans under the rubric of “debt relief”.
Today, President Biden is announcing a three-part plan to provide more breathing room to America’s working families as they continue to recover from the strains associated with the COVID-19 pandemic. This plan offers targeted debt relief as part of a comprehensive effort to address the burden of growing college costs and make the student loan system more manageable for working families.
The amount of debt the White House proposes to forgive could exceed $1 Trillion, depending on how may avail themselves of the program and for what levels of debt forgiveness they qualify.
President Joe Biden's plans to forgive student loans could cost more than $1 trillion, according to estimates by the Penn Wharton Budget Model.
Biden's plan to cancel up to $10,000 in debt for people earning less than $125,000 a year, rising to $20,000 for Pell Grant recipients, would cost between $469 billion and $519 billion over the 10-year budget window, depending on whether it covers future students who haven't started their studies yet, according to the model.
The White House authority to unilaterally cancel student debts is arguably another example of government overreach, and the move is being challenged in the courts, who may yet decide that the debt forgiveness is unlawful and therefore void.
It’s a crucial month for President Joe Biden’s one-time student loan forgiveness plan: On the 28th, oral arguments will begin at the U.S. Supreme Court for two cases related to cancelation, which could prevent millions of Americans from having thousands of dollars in debt eliminated.
The Supreme Court is hearing two forgiveness-related cases. The first, Nebraska v. Biden, was brought by six conservative state attorneys general that say the Biden administration is overstepping its authority. The second was brought by a conservative advocacy group for two individuals: one who does not qualify for the forgiveness plan, and one who does not qualify for $20,000 in forgiveness.
Consider the import of these numbers: As much as $1 Trillion of taxpayer dollars have been spent on student loans which now will never be repaid and for which there is no Constitutional authority to justify the government making the loans.
Thus comes the question, how did the Department of Education come into being, if there is no Constitutional basis for its existence? The answer is that Congress, in the 1979 Department of Education Organization Act (PL 96-88)4, willfully misread and misinterpreted the enumerated powers assigned to the Congress in Article 1 Section 8 of the Constitution. Specifically, Congress contorted and distorted the meaning and intent of the term “general welfare”.
The 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 all Duties, Imposts and Excises shall be uniform throughout the United States.
In drafting PL 96-88, Congress explicitly claimed furtherance of the general welfare as its authority for passing the legislation:
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.
Perversely, in the Act’s findings (section 101), Congress all but admitted that it really has no role, no “education activities”, and that all such activities are meant to be handled at the state and local level.
(3) parents have the primary responsibility for the education of their children, and States, localities, and private institutions have the primary responsibility for supporting that parental role;
(4) in our Federal system, the primary public responsibility for education is reserved respectively to the States and the local school systems and other instrumentalities of the States
Remember, the term “education” is not found within the enumerated powers of Article 1, Section 8 of the Constitution. The 10th Amendment further explicates that all unenumerated powers by default go to the states and to the people.
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Thus the plain text of the Constitution leaves no residual role for the Federal government to play in education. It all goes to state and local government.
Some, who have not denied the necessity of the power of taxation, have grounded a very fierce attack against the Constitution, on the language in which it is defined. It has been urged and echoed, that the power "to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States,'' amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare. No stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction. Had no other enumeration or definition of the powers of the Congress been found in the Constitution, than the general expressions just cited, the authors of the objection might have had some color for it; though it would have been difficult to find a reason for so awkward a form of describing an authority to legislate in all possible cases. A power to destroy the freedom of the press, the trial by jury, or even to regulate the course of descents, or the forms of conveyances, must be very singularly expressed by the terms “to raise money for the general welfare.”
But what color can the objection have, when a specification of the objects alluded to by these general terms immediately follows, and is not even separated by a longer pause than a semicolon? If the different parts of the same instrument ought to be so expounded, as to give meaning to every part which will bear it, shall one part of the same sentence be excluded altogether from a share in the meaning; and shall the more doubtful and indefinite terms be retained in their full extent, and the clear and precise expressions be denied any signification whatsoever? For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding 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 this view—the view of the Founding Fathers—the first clause in Article 1, section 8, is defined and delimited by the further enumeration which follows. As education is not within that enumeration, logic as well as the 10th Amendment precludes its imputation under the rubric of the “general welfare.”
Moreover, the Constitution clarifies that the welfare in question is the “general welfare of the United States”. This is plainly evident when one applies the definitions for the term “general welfare” from that era6, and includes the adjectival phrase which follows "of the United States".
GEN’ERAL: Public; common; relating to or comprehending the whole community; as the general interest or safety of a nation.
WELFARE: Exemption from any unusual evil or calamity; the enjoyment of peace and prosperity, or the ordinary blessings of society and civil government; applied to states.
Websters 1828 Dictionary
Even the modern definitions for “general welfare” lead us to the same semantic conclusion.
involving, applicable to, or affecting the whole
the state of doing well especially in respect to good fortune, happiness, well-being, or prosperity
The whole, or the whole community, is that of the States. The overarching duty of Congress, per this first clause in Article 1, Section 8, is to discharge its duties as laid out in the rest of Section 8 to the overall benefit of the several states, so that the states as sovereign entities may ultimately prosper. We may be certain this is the correct reading of the clause because this is the reading which comports with the federal system of government7 which is laid out by the Constitution.
In the United States, the Constitution has established a system of “dual sovereignty,” under which the States have surrendered many of their powers to the Federal Government, but also retained some sovereignty.
What powers have the states surrendered to the Federal government? The answer is, of course, the enumerated powers in Section 8. Authority over education is not one of those surrendered powers.
We have to suspect Congress knew they were straying outside their lawful boundaries in drafting PL 96-88, because they also took pains to state plainly that the Department of Education was not to undermine state or local authority in any way.
SEC. 103. (a) It is the intention of the Congress in the establishment of the Department to protect the rights of State and local governments and public and private educational institutions in the areas of educational policies and administration of programs and to strengthen and improve the control of such governments and institutions over their own educational programs and policies. The establishment of the Department of Education shall not increase the authority of the Federal Government over education or diminish the responsibility for education which is reserved to the States and the local school systems and other instrumentalities of the States.
One has to wonder exactly how there is any purpose to the Department of Education even within the text of its organizing legislation, given the clear mandate to not undermine or diminish state and local authority over education. As a matter of simple logic and common sense, the best way for the Department of Education to “protect the rights of State and local governments and public and private educational institutions in the areas of educational policies” is to simply not exist. No other entity can even threaten those rights, and without a Department of Education there would be no federal entity ever threatening those rights.
It is important to state that the lack of Constitutional authority is not a blanket prohibition to say that the Federal government could never have a role to play in education. Rather, it is to say that, within the text of the Constitution, within the document which organizes and defines the structure of the Federal government and what it is explicitly tasked with doing, no such role has been defined. No authority has been granted for the Federal government to direct taxpayer dollars in this fashion
If the people of the United States—if We The People—desire the Federal government to have a role in education, it is certainly within our purview to assign that role to the Federal government. The Constitution even provides the vehicle for incorporating that role and its definition—one simply amends the Constitution accordingly, as specified in Article 5.
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.
It is also important to note that, if We The People do not engage in the public debate necessary to pass such an Amendment, if we simply allow the Congress to unilaterally expand the remit of the Federal Government by passing unconstitutional laws, and then permitting the Executive Branch to improperly (and even illegally) enforcing said unconstitutional laws, then we are allowing the Federal Government to engage in one of the signature behaviors so eloquently condemned in the Declaration of Independence—that of unchecked expansion of government power to the detriment of the people.
He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people and eat out their substance.
It takes no great stretch of the imagination to see how this description applies to the bureaucracy of the Department of Education, and a great many other government agencies besides. Considering the deplorable state of public school education, as documented by Pew Research, and considering the $1 Trillion-plus amount of student loan debt that the government now says it cannot or will not collect, the Department of Education has been eating out a considerable amount of taxpayer substance—and doing so unlawfully.
With unconstitutional laws such as that which created the Department of Education, Congress has become a latter-day version of the despotism exhibited by the government of King George III of Great Britain during the years preceding the American Revolution.
The Declaration of Independence defined the problem: unchecked government power. The Constitution defined the solution: a system of dual sovereignty, wherein the people are meant to tell government what it is to do and in what realms it is to exercise authority. Surely it is no accident that the Constitution’s Preamble begins with the words “We The People….”
The Department of Education is but one example of government excess at the Federal level. Terminating the Department of Education would be one step towards reining in the Federal government and putting a stop to that excess.
The Constitution makes it clear that We The People are meant to be the final authority within the United States. Congressman Massie’s bill to cancel the Department of Education is one small step towards returning that final authority to We The People. It is a shame that Congress almost certainly will not pass the bill into law—it’s a rare example of a good law the Congress should pass.
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"H.R.899 - 118th Congress (2023-2024): To terminate the Department of Education." Congress.gov, Library of Congress, 9 February 2023, https://www.congress.gov/bill/118th-congress/house-bill/899.
"H.R.899 - 117th Congress (2021-2022): To terminate the Department of Education." Congress.gov, Library of Congress, 5 February 2021, https://www.congress.gov/bill/117th-congress/house-bill/899.
DeSilver, D. U.S. Students’ Academic Achievement Still Lags That of Their Peers in Many Other Countries. Pew Research Center. 15 Feb. 2017, https://www.pewresearch.org/fact-tank/2017/02/15/u-s-students-internationally-math-science/.
"S.210 - 96th Congress (1979-1980): An act to establish a Department of Education, and for other purposes." Congress.gov, Library of Congress, 17 October 1979, https://www.congress.gov/bill/96th-congress/senate-bill/210.
The Avalon Project : Federalist No 41 (James Madison). https://avalon.law.yale.edu/18th_century/fed41.asp.
Engel, P. General Welfare Clause. 26 Oct. 2018, https://constitutionstudy.com/2018/10/26/general-welfare-clause/.