The GOP vs The Department Of Education

Do Any Of Them Grasp The Actual Problem?

If there is any one issue that has galvanized the GOP primary campaigns for 2024 besides the ever-growing list of indictments against Donald Trump, it is the party’s growing hostility to the Department of Education.

During the first GOP debate, several of the candidates stated explicitly that they would dismantle the Department of Education, and a few of them reiterate that pledge on their campaign websites.

Governor Ron DeSantis of Florida, Vivek Ramaswamy, Governor Doug Burgum of North Dakota, and Vice President Mike Pence all said that, if elected, they would eliminate the federal Department of Education. Ramaswamy, former Governor Chris Christie of New Jersey, and Senator Tim Scott of South Carolina also threatened the teacher unions, with Scott saying, “The only way we change education in this nation is to break the backs of the teachers unions.”

Add in Chris Christie and Tim Scott with their opposition to teacher’s unions and you have six of eight GOP candidates pledging to take on the federal education bureaucracy head on. Add Donald Trump to that list and the message is clear: The GOP aims to change (hopefully reform) eduation by eliminating the Department of Education.

Yet while there appears to be widespread consensus among the candidates and the GOP electorate for dismantling the Department, thus far none of them have articulated the primary Constitutional problem with the Department: it’s unconstitutional.

Full disclosure: I absolutely support the idea of terminating the Department of Education. I believe the Department to be an unconstitutional overreach of federal bureaucracy into state and local matters.

We must pause to remember Congressman Thomas Massie’s annual tilting at the educational windmill in the form of a simple House bill to end the Department of Education.

Congressman Massie's Perennial Tilting At The Department Of Education Windmill

Massie’s logic has always been simple: Despite the billions of dollars funneled through the Department of Education every year, there is no text within the Constitution authorizing its creation or its continued funding.

This is the classic conflict between the intent of government programs and the legitimacy of government programs. However much good intent is behind the Department, the reality of the Constitution is that there is no clause, no section, no amendment which gives the federal government the power to intervene in educational matters.

This is a vital point to emphasize, because the corporate media—and much of the public education bureaucracy and establishment—begin much of their rhetoric with the presumption that there is intrinsically a role for the federal government to play in education.

The U.S. Department of Education was created by a law passed in 1979 under the administration of President Jimmy Carter and began operating in 1980. Before that, from 1953 forward, the federal government’s education-related functions were part of the Department of Health, Education, and Welfare.

While such is an accurate framing of the evolution of the Department of Education, it presumes inherent legitimacy to “the federal government’s education-related functions.” However, a plain reading of the Constitution as well as the legislation creating the Department of Education actually rejects that presumption.

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.

In my libertarian apprehension of the Constitution, that which the Constitution does not empower the federal government to do the federal government is not empowered to do—and therefore may not do. The Constitution does not empower the federal government to intervene in education, therefore the federal government may not lawfully intervene in education. As regards the legitimacy of the Department of Education, that is the beginning, middle, and end of the discussion.

However, while I genuinely applaud the commitments by the various GOP candidates to ending the Department of Education, I am also troubled by their seeming lack of awareness regarding the Department’s fundamental illegitimacy.

Mike Pence has perhaps the best position in this regard, as he explicitly makes reference to the notions of federalism that guided the Constitutional Convention of 1787 on his website:

When crafting the Constitution, America’s founding fathers took care to include strong checks and balances that limit the power of the federal government and protect our rights. Essential to this revolutionary system of government was the concept of federalism – vesting the majority of political power to states and local jurisdictions instead of Washington, D.C. In recent years, as the federal government has grown, the power of the people has slowly been eroded.

Our country must return to the ideals of federalism. Returning political power back to the states, cities, and communities gives Americans the greatest autonomy and freedom over their own lives.

When elected President, Mike Pence will be committed to returning the power of governance to the local level, as our founding fathers intended. In an effort to accomplish that goal, he will champion the following policies that will immediately return power to states and the people of this country.

While returning power to the states is the right thing to do, Pence still stops short of admitting that the arrogation of power by the federal government was not merely the wrong thing to do, within the scope of the Constitution it was an illegal thing to do. The federal government, whenever it accumulates power not specified in the plain text of the Constitution, is behaving lawlessly.

This becomes important because Pence also presumes that there is such a thing as “federal dollars”—government largesse the federal government in its benificence distributes to the states.

Control over the education of children should be vested in the hands of parents working at the local level with their community schools. It certainly should not be run by Washington bureaucrats using the power of federal purse strings to use K-12 education as a liberal social experiments. President Pence will work with Congress to eliminate the unnecessary Department of Education and return that funding and decision-making back to parents. The $24 billion currently spent by bureaucrats will be returned to states with the one restriction that states taking federal dollars must grant children the flexibility to use their tax dollars at the school of their choice – public or parochial. We can end federal control, eliminate the Department of Education, and enact universal school choice in one fell swoop.

What we should understand—what Mike Pence does not understand—is that states do not “take” any “federal dollars.” The federal government, in funding its illegal deparments, is taking taxpayer dollars which should never have left the several states in the first place. It is not for the federal government to be disbursing taxpayer dollars to the states for furthering education; it is for the federal government to not illegally take those taxpayer dollars away from the states. Mike Pence, while correctly framing the issue as one of a proper apprehension of federalism, still presumes the federal government to have power that it does not lawfully possess.

Even Vivek Ramaswamy, who in the first debate and on the campaign trail has been perhaps the most blunt and forceful advocate of ending the Department of Education, on his website merely describes the Department as “toxic”.

Shut down toxic government agencies: Dept of Education, FBI, IRS, and more (and rebuild from scratch when required)

The Department is “toxic”, but it is toxic because it is unlawful.

For his part, Ron DeSantis, although he stated opposition to the Department of Education during the GOP debate, on his website yet articulates a role for the federal government within education.

• DeSantis will support school choice nationwide, protect parental rights, reform accreditation, and steer funding towards programs and institutions that support the jobs of the future. Our students will learn how to read, write, do math, and think critically instead of learning to hate our country. DeSantis will educate artisans and engineers instead of politicized administrators and bureaucrats, seeking to accelerate students along these career paths as early as possible. 

• DeSantis will work with the private sector to accelerate and develop vocational and apprenticeship programs in anticipation of our great industrial revival, with a goal to become #1 in the world for skilled trades by 2030. 

• DeSantis will no longer incentivize useless degrees and courses with blanket government loans. To that end, he will make universities, not taxpayers, responsible for the loans their students accrue. He will also seek to allow student loans to be discharged through bankruptcy like any other loan. 

While promoting the education of artisans and engineers is notionally commendable, embracing such blanket advocacy at the federal level ignores the Constitutional reality that educational priorities are meant to be set at the state and local level. DeSantis’ promises of better engagement with the private sector in educational matters speaks to a continuation of the same illegal federal usurpation of state and local authority.

Exchanging one lawless instance of federal overreach for another instance of federal overreach is not my idea of an improvement.

Doug Burgum, for his part, does not even mention the Department of Education on his website. His declared opposition to the Department ultimately is mainly opportunistic rhetoric rather than substantial campaign philosophy.

Tim Scott is similarly silent about the Department of Education on his website, opting to focus instead on combating the power of teachers’ unions.

They're the ones, with their teachers' unions, standing in the doorway of the schoolhouse, trapping poor kids in as if the house is on fire, but they won't let a single soul out. It's really frustrating, and it's one of the reasons why I think we have no choice but to break the backs of these teachers' unions. They're the problem. They're literally destroying the future of millions of kids.

While there is much about public sector unions that is particularly problematic, Tim Scott’s stance is equally problematic in that it does not articulate any sense of limitation of government authority, but rather seeks merely to change the impetus and purpose for weilding that authority.

Merely “breaking the backs” of teachers’ unions itself does not address the crux of the issue. Instead, as with all statist solutions to social issues, it merely swaps one abuse of power for another. If there is one ideal that should have been carried forward from 1787 and the many efforts of the Founding Fathers to build a new nation, of all the many ideals that have fallen away within the US since the drafting of the Constitution, it is that the solution to an abuse of power is to eliminate the power. It is not merely to redirect that power to more palatable ends. There is no virtuous end served by being vicious, no matter how enlightened the rhetoric used.

There is nothing really to be said about Chris Christie’s stance in opposition to the Department of Education, because his website is apparently devoid of any stance at all save the desire to receive political contributions from the electorate. If one starts at ChrisChristie.com, other than a video of his kickoff event announcing his candidacy, nearly every other clickable link involves a solicitation for funds. Apparently the truth that matters to Chris Christie is that he wants your money.

Which brings us to Donald Trump.

Notionally, Donald Trump’s rhetoric on education is relatively centrist. On his website he champions a number of reforms to the nation’s educational systems, athough there he stops short of calling for the outright abolition of the Department of Education.

President Donald J. Trump fought tirelessly to expand charter schools and school choice for America’s children. He secured permanent funding for Historically Black Colleges and Universities and protected free speech on college campuses. Now, Joe Biden and the radical left are using the public school system to push their perverse sexual, racial, and political material on our youth. President Trump will cut federal funding for any school or program pushing Critical Race Theory or gender ideology on our children. His administration will open Civil Rights investigations into any school district that has engaged in race-based discrimination. President Trump will veto the sinister effort to weaponize civics education, keep men out of women’s sports, and create a credentialing body to certify teachers who embrace patriotic values. President Trump will reward states and school districts that abolish teacher tenure for grades K-12 and adopt Merit Pay, cut the number of school administrators, adopt a Parental Bill of Rights, and implement the direct election of school principals by the parents.

However, we should also note that Donald Trump has called for the abolition of the Department of Education before. It was a proposal he put forward at the August 2022 Conservative Political Action Conference (CPAC) in Dallas, Texas.

In July, former Trump cabinet secretary for the Department of Education, Betsy DeVos, called for the elimination of the federal education agency because she believed the agency was not doing its job.

Trump, at the Conservative Political Action Conference (known as CPAC) in Dallas, Texas, told attendees, “If federal bureaucrats are going to push this radicalism, we should abolish the Department of Education.”

He reiterated this position again this past spring at a CPAC gathering in Maryland.

Axing the Department of Education is part of an education platform Mr. Trump will announce on March 13, he told reporters at the Conservative Political Action Conference.

“It’s time,” Mr. Trump said. “Close it up. When you look at the list of countries, we’re always at the bottom [on education]. We spend more money per pupil and we’re always at the bottom of a list of 40 countries. And we should close it up and let local areas, and frankly, states, handle education.”

Even as President, Donald Trump proposed merging the Department of Education with the Department of Labor, as part of his keeping the pledges he had made during the 2016 Presidential campaign with regards to both Department of Education policies and overall GOP opposition to the “Common Core” educational curriculum.

By the end of President Obama’s second term, the Republican Party was clearly frustrated with the extent of the Department of Education’s reach and the Obama administration’s support of Common Core. In this context, this policy issue became a litmus test for the 2016 Republican presidential candidates during the primary election in summer and fall 2015. Republican candidates positioned themselves on Common Core to signal not only their position against the federal government’s overreach in education, but also their position for reducing the size of the federal government. During the primary election, then-candidate Trump advocated on Twitter to repeal Common Core (although this is not something the federal government had control over, then or now) and eliminate the Department of Education to reduce the federal government’s role in education. During the general election, candidate Trump pledged in his Contract with the American Voter to “end” Common Core and restore local control in education.

Specifically, in 2016 Trump had championed what he called the “School Choice And Education Opportunity Act”:

Redirects education dollars to gives parents the right to send their kid to the public, private, charter, magnet, religious or home school of their choice. Ends common core, brings education supervision to local communities. It expands vocational and technical education, and make 2 and 4 -year college more affordable.

While Donald Trump did not and has not specifically addressed the unconstitutionality of the Department of Education itself, we should note that in his 2016 “Contract With The American Voter” he made a specific pledge to restore “security and the constitutional rule of law.”

Trump’s previous articulations with regards to the Department of Education are illuminating, not just because they reflect perhaps the most sincerely held position among the GOP field of Presidential hopefuls, but because their longevity in the public domain highlights yet again the sheer ineptitude of the corporate media in covering both Donald Trump specifically and the GOP generally. Instead of highlighting the reality that Trump, in part because he has been President already, is in truth the leader on this issue, corporate media opts to frame Trump’s most recent articulations as jumping on the GOP bandwagon.

Former President Donald Trump said Wednesday he wants to close the Department of Education and have state governments “run the education of our children,” pushing for a long-held Republican goal that has been endorsed by several other 2024 GOP candidates.

While it could be said with some fairness that Trump did jump on the GOP bandwagon with regards to this issue, he did so in 2016, not in 2023. With respect to the current election cycle, Trump specifically staked out this position over one year ago, before Ramaswamy, DeSantis, and the rest even through their hat in the poverbial ring.

Moreover, even though Trump rarely employs traditional political rhetoric, his political track record has included a fair number of direct references to the Constitution and to respecting the Constitutional system of governance. In his 2016 Contract With The American Voter he specifically pledged to appoint to the Supreme Court a successor to the late Antonin Scalia who would “uphold and defend the Constitution of The United States.”

There is a certain irony in Donald Trump, who arguably is among the least “polished” of GOP political figures, being the one who has been most explicitly vocal about defending the Constitutional order of things. Yet this irony speaks to a greater political perversity in the array of indictments leveled against him, and the efforts of the current regime in the White House to kneecap his candidacy before it can truly begin.

Trump And Biden: Two Political Rorschach Tests

By making Trump’s indictments the focal point of media coverage of the Trump campaign, corporate media—and, to a degree, alternative media as well—have facilitated political campaigns based largely on personality and less on policy. This is shaping the political debate in ways that are at the very least problematic.

Even though Donald Trump has said the most regarding the Constitutional illegitimacy of the Department of Education, that part of his political message has been given the least amount of coverage. By extension, the absence in the rhetoric of other GOP candidates of that constitutional illegitimacy of the Department has also been ignored.

Our civic and political cultures are not well served by ignoring such things. It is less important that we agree or disagree with the particular positions of those who aspire to any elective office than it is that we interrogate, explore, and discuss those positions, concluding for ourselves what we as individuals want in our society. We best defend our respective interests when we are intentional and deliberate about what laws we want for the communities in which we live, at the local, state, and national level.

Consequently, it is important that we interrogate, explore, and discuss the state of the laws in our communities as it is today. The beginning of productive political debate is that understanding of what the law is.

What The Law Is

While courts determine what the law is, it falls to the community to declare what the law should be.  If the community does not agree with a court's assessment of what the law is, it falls to the community to alter that law, and to do so in such fashion that the court's assessment aligns with the community's desire. 

Only when we have a full understanding of what the law is are we able to productively determine what the law should be.

Within the confines of the United States Constitution, in particular within its guarantee to every state a republican form of government, but also within the Ninth and Tenth Amendments reserving to the people and to the states rights and powers not elsewhere enumerated in the Constitution, is the inference and the expectation that people are to be actively engaged in the process of determining what our laws should be.

The plain reading of the text of the Constitution does not accord any legitimacy or lawful authority to the Department of Education. The immediate resolution to this issue is, of course, to abolish the Department of Education. Yet for those who see a legitimate federal role in education, there is another option for which to advocate: amend the Constitution to give the Department of Education that lawful authority.

Would that be a wrong position to take? No, it would not. I would not agree with it, but it is every bit as legitimate a position to take as abolishing the Department woul be. Debating the legitimacy or illegitimacy of that position is the sort of political substance that historically has been the political ideal for elections.

We are not getting that debate today. We are not getting that debate over the Department of Education by the GOP candidates, and part of the reason we are not getting that debate by the candidates is because they are not being challenged on that particular debate by the corporate media. Consequently, we are not invited to have that debate amongst ourselves as ordinary citizens.

The GOP candidates have largely concluded that it is time to abolish the Department of Education. I agree with them on that. Yet what disturbs me is there is no articulated understanding among the GOP candidates over what would emerge to take its place.

That’s a problem, and it’s not a small one.