Among the foremost threats to individual freedom in America is the abusive and oftentimes lawless behavior…
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More Legal Shenanigans from the Biden Administration’s Department of Education

Among the foremost threats to individual freedom in America is the abusive and oftentimes lawless behavior of federal administrative agencies, whose vast armies of overpaid bureaucrats remain unaccountable for their excesses.

Among the most familiar examples of that bureaucratic abuse is the Department of Education (DOE).  Recall, for instance, the United States Supreme Court’s humiliating rebuke last year of the Biden DOE’s effort to shift hundreds of billions of dollars of student debt from the people who actually owed them onto the backs of American taxpayers.

Even now, despite that rebuke, the Biden DOE launched an alternative scheme last month in an end-around effort to achieve that same result.

Well, the Biden DOE is now attempting to shift tens of millions of dollars of…[more]

March 19, 2024 • 08:35 AM

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Federalism Means Never Having to Say You’re Sorry Print
By CFIF Staff
Wednesday, April 22 2009
Like many of the structural safeguards conceived by the Founders, federalism’s purpose is to ensure that the federal government remains sclerotic enough to stay within its constitutional ambit, enforcing the benign neglect that is the precondition of state and local self-determination.

The Department of Homeland Security, never known for its institutional elegance (these are, after all, the people who brought us the color-coded terror alert system), reached a new low last week with the release of an Intelligence Assessment Report warning of the dangers of resurgent right-wing extremism in America.

The report deservedly drew the ire of conservatives throughout the nation for warning of the dangers posed by such menacing groups as military veterans returning stateside, pro-life activists, and border security advocates.  But another, less remarked upon, item was perhaps even more distressing.  According to the DHS, you may be a threat to national security if you believe in the Constitution.

To be clear, the relevant section of the Homeland Security document reads “Rightwing extremism in the United States [includes] groups, movements, and
adherents … that are mainly antigovernment, rejecting federal authority in favor of state or local authority.”

The Tenth Amendment to the U.S. Constitution, in turn, reads “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.”  Rightwing extremism, then, apparently owes its origins to Independence Hall.  

As many liberal commentators rising to the Obama Administration’s defense have noted, the DHS analysis was commissioned and partially drafted by the Bush Administration.  Therein lies a lesson for the approximately three Americans still jealous of their constitutional protections: federalism – despite the best efforts of some conservatives – doesn’t have a permanent home in either party.  

Like many of the structural safeguards conceived by the Founders, federalism’s purpose is to ensure that the federal government remains sclerotic enough to stay within its constitutional ambit, enforcing the benign neglect that is the precondition of state and local self-determination.  This, of course, makes it threatening to those on both the left and the right who think the federal government’s only limits are the outer reaches of their imaginations.

Thus it was the Bush Administration – supposedly more sympathetic to federalism than its successor – which attempted to quash the popularly ratified legalization of euthanasia in Oregon and resisted the increased regulation of greenhouse gas emissions passed by the California legislature.  While those state acts may have been disastrous policy decisions, the rub of true federalism is a recognition of states’ rights to pass them. Rules that cease to be binding when the powerful no longer care for them are, after all, no rules at all.

Despite the DHS report, the Obama Administration has not been entirely hostile to 10th Amendment rights.  In February, Attorney General Eric Holder announced that the Justice Department would no longer raid medical marijuana dispensaries, leaving final decisions about legality to state governments.  Likewise, the 44th president has reversed the 43rd’s prohibition of California’s tougher emissions standards. Unfortunately, this doesn’t indicate a change of heart.  It’s just the left’s version of fair weather federalism.

For confirmation of this diagnosis, look no further than the words of Secretary of Education Arnie Duncan.  In an article advocating national education standards in the new issue of Time Magazine, Duncan says “"I know that talking about standards can make people nervous, but the notion that we have 50 different goalposts is absolutely ridiculous." Duncan, who has been admirably supportive of school choice and charter schools (at least rhetorically), seems to think that public schools are somehow immune to the benefits of competition.  He also conveniently ignores that the constitution envisions no federal role in education.

Yet the rationale for federalism is stronger in our nation’s classrooms than almost anywhere else.  Contra Secretary Duncan, 50 different goalposts provide 50 opportunities for innovation, 50 possible models of best practices, and 50 choices for Americans who prefer that the content of their children’s textbooks not be micromanaged from a Capitol Hill subcommittee.  

The alternative is a system where Washington uses monopoly power to dictate the first two decades of learning for every child in America (the feds would likely end up using some combination of regulation and financial inducements in an attempt to force private schools to adopt the same standards).  That is a tall order – and one with little margin for error.  Screw up the standards in your local schools and children can head to the next county. Shipwreck the entire American education system on the shoals of good intentions and you’ve destroyed a generation.  

Perhaps it’s better, then, to leave the business of government to those closest to those they’re legislating for.  This will retain the states’ roles as laboratories of policy innovation.  And it will prevent the Washington that produced TARP, the tax code, and the DHS report from having to apologize for one more national embarrassment.  The risk-averse legislators in our nation’s capitol should remember that federalism means never having to say you’re sorry.

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