Guest Columnist

John Richard Schrock

10th Amendment and State Responsibilities


   When the President asserted that he had the total power to make decisions on how we handle the coronavirus pandemic, he got immediate pushback from a wide array of conservatives, including Senator Marco Rubio who tweeted: "The Constitution & common sense dictates these decisions be made at the state level."

 Rubio was correct. The 10th Amendment to the Constitution is short and clear: "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." Managing pandemics is not in the Constitution and therefore falls to the states to manage. There are associated responsibilities when it comes to national security and managing certain situations that extend across state borders. The federal ability to command industry to provide critical production is one such exception.

    The far-more-devastating Flu of 1918 that originated in Kansas and spread worldwide via troop transport while we were in World War I, was nearly completely managed by states. There was a logic then and it persists now. Some states are heavily rural and residents are spaced far apart. Other states are primarily urban, with citizens stacked on top of each other. And the outbreaks and fatalities reflect these differences. Strategies that are essential for the densely populated areas may not be necessary in the wilderness.

    Any attempt to impose a federal one-size-fits-all strategy on this pandemic would have been foolish. It would also have been immediately challenged as unconstitutional. Actual management of this pandemic rests with each state.
    Unfortunately, this outburst of opposition did not happen when another action was unleashed that likewise violated the 10th Amendment: No Child Left Behind.

    Education is not mentioned in the Constitution either. It therefore is solidly and exclusively a state responsibility. The vast majority of funding for public schools comes from state and local taxes. The education section of the earlier federal Department of Health, Education and Welfare was primarily an agency that gathered statistics. When some federal monies were allocated for special education and certain Title programs, they were allocated as block grants. Education remains a "state's right." The Feds have no authority to establish a national curriculum; indeed they are expressly prohibited from doing so. 

    So it was unfortunate when a bipartisan alliance pushed the federal No Child Left Behind version of ESEA into classrooms. Since the federal government has no direct authority to determine standards, etc., they achieved control by making federal aid contingent upon following NCLB. In simple terms, it was extortion. Still today, many state superintendents, commissioners or state education boards feel that they are merely a state agency for implementing federal directives in education. But they are in total control. And yes, they could face the loss of federal funding that makes up a small but important portion of their budget. 

    Teaching students in rural areas, rich suburbs and urban areas is quite different. Teachers who grew up on a farm do not relate well when teaching in rich suburban schools. And teachers who grew up in rich suburbs are fairly lost when trying to teach in rural schools. Yet the federal education standards are essentially uniform. —The same problem faced by imposing a single nationwide pandemic strategy.

    And some teacher groups have even lobbied for a national teacher certification system, claiming they are a profession just like medicine and law. If they had done their homework, they would have discovered that bar exams and medical boards are state exams. —Not in the Constitution! 

    Just as addressing this pandemic is primarily a state responsibility, so is education. It is past time to close down the federal Department of Education. And we must fund state education at a higher level. Because education is not just "a" state responsibility, it is THE primary responsibility of each state.