During the Republican Presidential debate on September 22, 2011, the question was put to the candidates about dismantling the Department of Education. Generally the candidates agreed that education is a state issue, not a federal issue. First, education is not one of Congress’ enumerated powers and so they have no authority to pass laws related to education. Second, the President executes the laws passed by Congress and if Congress hasn’t the authority to control education, then neither does the President. Third, the Tenth Amendment gives the power to control education to the States by virtue of the fact that it is not one of Congress’ enumerated powers.
The same can be said for most of the other cabinet positions. The federal government does not have the authority to control housing and urban development, health and human welfare, the environment, or energy. Congress has the authority to control the nation’s defense including the military, homeland security, and veterans’ affairs; treasury; commerce; and affairs of state. The remaining cabinet positions are either questionable or outright unconstitutional.
Yet, at the same time, I am reluctant to put the decision to dismantle a large part of our federal government into the hands of the President alone. It needs to be done, but to do so steps on many toes. It’s a political hot potato that damns a politician for even talking about it. The man or woman who drastically cuts the federal government will build a stronger America and create a lot of enemies.
I have a simple suggestion on how to justify dismantling a cabinet department. Let’s take the Department of Education as an example. The President should propose an amendment to the U.S. Constitution that makes education one of Congress’ enumerated powers and give Congress and the States two years to ratify the amendment. I am very confident that the amendment will not pass Congress and be ratified by 37 states in those two years or ever. Education is a right of the States and it should stay that way. After the two years have expired, the President can then dismantle the Department of Education. It is no longer the President’s decision alone. Failure of the amendment to succeed means the people and the States do not want a federal Department of Education. The people made the decision, not the President.
When individual amendments to add agriculture, housing, health, labor, and energy fail, then each of those departments can be closed by the will of the people. On the other hand, if one of those amendments is ratified, then the federal government has the constitutional authority to legislate and control that aspect of our lives, rather than the current situation where Congress has assumed control and the States lack the collective will to reassert their Tenth Amendment rights.
The question remains what to do to fill the void when, for example, the education amendment fails and national education policy and laws are deemed unconstitutional and no longer enforced. Of course, the States would assume the role. Each state can establish its own laws and standards. A state who wants to emphasize K-12 education can do so and other states may be satisfied with minimally educating their children. It’s their choice and their right.
How can we standardize education across the country with 50 states asserting their own policies? My response is to draw attention to the success of the ubiquitous Underwriter’s Laboratory (UL). You cannot buy an electrical appliance that doesn’t have the UL logo on it that indicates it is approved as safe to use in your house. Retailers won’t carry unsafe appliances and discerning customers won’t buy them. Yet, UL is not a government organization. It was established by the insurance industry as an independent lab to ensure the safety of electrical appliances. It is administered by the private sector, not the federal government. As such, to maintain its reputation and existence, the UL is concerned about accuracy, fraud, and waste – unlike government organizations that don’t have to worry about any of those because the bureaucracy of the federal government protects them.
Mirroring the UL, the States can create an independent national organization staffed by educators and school administrators. This organization would certify schools as providing the necessary level of education according to the state’s laws, rate the competency of teachers and make recommendations to retain or replace individual teachers, and establish standardized tests to determine if a student should pass to the next grade. Our schools are certified by various organizations already. There are standardized tests. The next step is to use those resources to make education decisions. That’s the right of the States, but the federal government hinders the States with “Leave No Child Behind” and other policies and laws. Face it, some children need to be left behind until they learn. I taught 7th grade math and was stymied by the fact that some of my students couldn’t perform 4th grade arithmetic. Was the education system working for them?
Teachers’ unions also hinder the quality of education. The union cares about the teachers, not the students. The union protects incompetent teachers and prevents the education system from meeting the needs of the parents and students. Teachers’ unions should support an independent organization to improve education even if it means challenging the unproductive notions of seniority and tenure. To be fair, plenty of individual teachers do care about parents and students; the collective mob mentality of a union does not.
As we dismantle each illegitimate cabinet post and the regulations they enforce, we can replace them with independent organizations to establish housing standards, workplace safety standards, and health insurance standards – private organizations funded by the appropriate industry to replace overly stringent government regulation with seals of approval.
I have to consider the question as to whether some of the illegitimate cabinet departments should be legitimate. Who but the federal government can establish a national energy policy? Who but the federal government can effectively monitor and regulate the environment when one state’s policies could interfere with a neighboring state’s policies? To wit, the U.S. and Mexico have an agreement on how much water from the Colorado River should flow into Mexico, but we retain more than our agreed share and Mexico is powerless to stop us. Without an overarching authority, individual states would battle for scarce resources. I leave those questions unanswered, but I do mean to establish that we either put the environment and energy in the U.S. Constitution as one of Congress’ enumerated powers or not. We cannot let Congress pass laws without the authority to do so.
Finally, just another thought along the lines of using constitutional amendments to corral Congress, States, and cities. The President should propose an amendment that says, “The Second Amendment is revoked. Congress, the States, and local governments have the authority to pass reasonable laws to infringe on the right to keep and bear arms.” I hope that scares you. You should already be concerned that Congress, the States, and local governments do pass laws that infringe on your right to keep and bear arms and the U.S. Supreme Court supports many of them in an underhanded, illegal (and so far successful) attempt to amend the U.S. Constitution by judicial authority. If that’s what we want, then let’s revoke the Second Amendment so it’s legal to ban guns, ammunition, and shooting ranges. However, that is not what we want. That amendment would never pass. The President can propose it and give Congress and the States two years to ratify that amendment and when it fails, he can tell the U.S. Supreme Court that the people have spoken and challenge their authority to rule in favor of any gun control laws. At that point, it would not be unreasonable for the President to charge a Supreme Court justice who votes to deny us our Second Amendment right with treason for defiling the U.S. Constitution and ignoring the will of the people.
