The U.S. Constitution includes immigration as one of the listed (i.e., enumerated) powers of the federal government. Education is not such a power; hence it resides with the States. Historically, the accumulation of power by the federal government has involved taking areas from the States even though those areas are not listed as federal powers. As a result, American federalism has shifted increasingly toward a consolidation of power at the federal level. Among other means, Congresses and U.S. presidents have used the power of the purse to gain control from the States. Education is a case in point, whether elementary, secondary, or higher education. That the U.S. Government has had trouble controlling the country's southern border with Mexico suggests that maybe adding education has come at the expense of the added attention and effort that could have been put on immigration. In business terms, an opportunity cost (i.e., the cost of foregone benefits) comes with each additional federalized area. U.S. President Obama on education presents us with a case in point.
“Our country used to have the world’s largest proportion of young people with a college degree,” the president said in 2011. “We now rank 16th. I don’t like being 16th; I like being No. 1.”[1] Liking being at the highest rank is only natural. Wanting a more educated people is laudable, especially because an more educated citizenry is more likely to be able to maintain a republic instead of falling prey to "fake news" and a deceitful demagogue.
By 2020, the influx of educated suburbanites from other States was changing Arizona politics, for example. A candidate for sheriff of Phoenix's county who had campaigned on standing up "to the mobs," with peaceful protests being included as if they were inherently dangerous rather than a constitutional right worthy of protection, lost. In truth, the mobs consisted of all of the uneducated residents--a large group, and thus with the numbers to vote in office-holders, given Arizona's rank of 49th out of the 50 States on elementary and secondary education in 2019. By 2020, the influx of new, more educated blood in Phoenix and some of its suburbs (not Glendale or Mesa) was beginning to compensate for the power of the uneducated in the State.
As laudable as more education is especially in the backward States, the ability of the U.S. Government to intervene comes with a cost in terms of federalism sliding into consolidated governance of a empire-scale country, which is inherently heterogenous (i.e., has differences within). One size does not always fit all in cases such as the U.S. and E.U. because the states are different culturally. My point is that to forestall consolidation in order to protect the checks and balances made possible only in a federal system.
Education is problematic precisely because allowing the federal government in to shore up States such as Arizona puts one more nail in the coffin of American federalism, yet such States would otherwise continue to suffer from the uneducated being able to determine who holds public office. It is a paradox actually, in that the poorer, uneducated citizens are less able or inclined to hold their elected officials accountable between elections. In Arizona, for instance, people complain about "the police state" of nightly surveillance by police helicopters especially in the middle- and lower-class areas of the Phoenix metropolitan area, yet without defending their right to peaceable enjoyment. Yet those same voters vote into office the "law and order" authoritarian type of person who is inclined to take liberties with innocent people, being ignorant of the fact that even innocent people do not like being intimidated as if that were are necessary deterrent.
In 2011, President Obama's visit to a city's school sent a good message wherein education should be valued, but it is also significant that the president overlooked the fact that education is not among the areas granted to the U.S. Government by the U.S. Constitution. He could have resolved this tension by urging that Americans urge their respective state officials to improve their education systems. Yet there would still be States like Arizona in which too many people believe that taxing constitutes stealing.
It is not as though the president of the United States had a lack of things needing his attention within the enumerated powers of the U.S. Government. In fact, state officials of some border States were stepping in to adequately enforce immigration law because federal officials were too ineffectual. That the federal government fought such assistance while continuing to encroach on State domains such as education evinces a desire to have it all; that is, a desire at the federal level to consolidate power rather than respect federal constitutional boundaries (as well as international boundaries such as borders). It was as if the person in charge of an association’s club house were resisting cleaning help by some of the members while going into their houses to try to clean them. Somehow the common sense advice to get one's own house in order before trying to order other houses, which is so needed to restore American federalism, has been missed at the federal level.
To be sure, it is not as though the Obama administration was so consumed with visiting local schools that it would not have time or resources with which to better enforce immigration law. It is rather the accumulation of areas that are not included in the enumerated federal powers that has left the U.S. Government vulnerable to not doing enough in its own areas.
Interestingly, while the president was acting as parent-in-chief at a local (rather than federal) school, his administration lost a case in federal court against Alabama’s immigration law enforcing the federal law. Among other things, the Alabama law “nullifies any contracts entered into by an illegal immigrant.”[2] Another section “forbids any transaction between an illegal immigrant and any division of the state,” and still another section “requires elementary and secondary schools to determine the immigration status of incoming students.”[3] Nothing here violates or nullifies federal law; in fact, Alabama was helping the U.S. Government with its task. In the E.U., where most power still resides at the State level, it is common for the state governments to be required to implement E.U. directives. In the U.S., where the federal level has accumulated so much to do, it makes even more sense that state governments would be required to do more of the legislating. "Congress is behaving like a state legislature," Justice Sandra O'Conner once told me when I asked her about the role of the federal government in eclipsing federalism by instituting a system of consolidated power.[4]
1. Mark Landler, “Obama Urges Students to Set Their Sights on College,” New York Times, September 29, 2011.
2. Campbell Robertson, “Alabama Wins in Ruling On Its Immigration Law,” New York Times, September 29, 2011.
3. Ibid.
4. Sandra J. O'Connor, Personal Conversation, Yale University.
