No Child Left Behind Act: Is it an Unfunded Mandate or a Promotion of Federal Educational Ideals?, The

Journal of Law and Education, Apr 2008 by Umpstead, Regina R

III. LEGALANALYSIS: FEDERALISM AND THE SPENDING CLAUSE

A. Federalism: The Division of Power between the Federal and State Governments

The U.S. system of government is one of dual sovereignty between the federal and state governments. The presence of an apportionment of power between these two entities is manifested in the Tenth Amendment of the U.S. Constitution, which declares that "[t]he 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." Since education is not explicitly mentioned in the U.S. Constitution, it is not specifically delegated to the federal government, and therefore lies with the states. Thus, Congress does not have a constitutional grant of authority to regulate directly education in the United States.

This balance of power between the federal and state governments offers three primary benefits for the governance of our nation. First, it guards against the blurring of political accountability.60 Because federalism assigns different powers to each level of government, citizens are able to determine which entity to hold accountable. Also, if either the federal or a state government attempts to encroach on the powers of the other, it can be checked by me other for overstepping its boundaries. second, federalism protects individual freedoms.61 Having strong state and local governments provides many opportunities for citizens to participate in government, to employ diverse solutions to social, economic, and cultural issues, and to influence national policy by building support on the local level. Third, federalism fulfills the balanced vision of me political structure for our country that is embodied in the Tenth Amendment of the U.S. Constitution.62

To maintain this balance, Congress must only act within its delineated powers, thereby not encroaching on the areas under the control of the states. To determine whether Congress has invaded the authority reserved to the states by the Tenth Amendment, an inquiry must be made into whether Congress exceeded the limits of its authority conferred to it by Article I, section 8 of the U.S. Constitution.

B. The Federal Conditional Spending Power

1. The Grant of Authority: U.S. Constitution, Art. 1, section 8

Congress' powers to regulate are found in Article 1, section 8 of the Constitution.63 Congress may regulate an activity or enterprise directly, and states are required to comply, if it falls within these powers, such as those contained in the Commerce Clause.64 In spite of its inability directly to regulate education, Congress has passed a series of laws that have significantly influenced the educational program throughout the country. To do this, Congress has utilized its spending power under Article I, section 8, clause 1 to induce the states to cooperate with its policies.65 This clause says "Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States."66 Unlike direct regulatory power where the federal government can mandate state and local action, through its Spending Clause power Congress can offer states money in exchange for their agreement to abide by certain laws and regulations. In this manner, Congress may legislate in fields, such as education, over which it holds no direct authority.