Common Core: All Too Common Overreach – Guest Essayist: Cynthia Dunbar
The three branches of the United States government are the Executive, Legislative and Judicial. The U. S. Constitution lays out the power and authority of each of these separate branches. It is important to note that the powers given to each branch are unique and separate and do not overlap or invade the authority of the other two.
Article I details the powers of the Legislative branch, which for the Federal Government is called Congress. All legislative power, or the ability to make law, is given to Congress. This is important to keep in mind when reviewing the authority to of the Executive and Judicial Branches.
Article II details the powers of the Executive Branch, specifically the office of the President. In short, the Executive branch does just that, it executes. This means the Executive branch is responsible for simply putting into force the laws that have been enacted by the Legislative branch.
While the Presidential office is frequently viewed as the most powerful position, it does not actively possess legislative authority. Since the Constitution gives legislative authority to Congress in Article I, the President is constrained to the function of carrying out the laws passed by Congress. Consequently, Congress as a whole arguably holds even more power than does the President of the United States.
Article III grants authority to the Judiciary, more specifically the Supreme Court and all Federal Courts. This is the shortest of the first three Articles of the Constitution, and for good reason. The Founders intended the judiciary to be the weakest branch of the three. The judiciary is responsible to take the laws as passed by Congress and apply them to a given set of facts, otherwise known as a case or controversy.
Three branches were created, and checks and balances put in place as protective barriers from despotic or tyrannical rule. The belief of the Founding Fathers was that keeping power and authority widely distributed was a necessary safeguard to the protection of the people from the government itself. The more the power could be dispersed, the better. That was the same idea behind the principle of Federalism. Federalism acted as a vertical distribution of power between the Federal and State governments. Checks and balances were implemented as a horizontal distribution of power between the three federal branches. The urgency of the Founders to limit power, rather than expand it, was grounded in the belief that to accumulate all authority in one place would be to place the governed at the mercy of tyranny.
At the time of our nation’s founding there was a general distrust of large or powerful government, especially government that was far removed from local control and accountability. That is why while legislative authority was granted to Congress, this power was not unlimited. Rather it was limited to those specific areas enumerated in Article I, Section 8. In summary, these areas granted to the Federal government are as follows:
1. The Congress shall have Power To lay and collect Taxes;
2. To borrow Money;
3. To regulate Commerce;
4. To establish an uniform Rule of Naturalization, and
5. To establish uniform Laws on the subject of Bankruptcies;
6. To coin Money;
7. To provide for the Punishment of counterfeiting;
8. To establish Post Offices and post Roads;
9. To secure for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
10. To constitute Tribunals inferior to the Supreme Court;
11. To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;
12. To declare War;
13. To raise and support Armies;
14. To provide and maintain a Navy;
15. To make Rules for the Regulation of the land and naval Forces;
16. To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
17. To provide for organizing, arming, and disciplining, the Militia;
18. To exercise exclusive Legislation in all Cases whatsoever, over such District as may become the Seat of the Government of the United States;—And
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers.
The Executive branch is called to execute laws that have been constitutionally enacted by Congress. Therefore, if Congress is not possessed with authority to legislate a certain area, then the Executive branch has no authority to execute laws that do not fall within the purview of the Federal Government. If the Executive Branch has no authority to execute laws devoid of constitutional justification, then it certainly has no authority to create such.
James Madison in Federalist Paper No. 47 detailed the extreme need to keep the powers of each branch separate and distinct.
The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, selfappointed (sic), or elective, may justly be pronounced the very definition of tyranny. Were the federal Constitution, therefore, really chargeable with the accumulation of power, or with a mixture of powers, having a dangerous tendency to such an accumulation, no further arguments would be necessary to inspire a universal reprobation of the system. I persuade myself, however, that it will be made apparent to every one, that the charge cannot be supported, and that the maxim on which it relies has been totally misconceived and misapplied. In order to form correct ideas on this important subject, it will be proper to investigate the sense in which the preservation of liberty requires that the three great departments of power should be separate and distinct.
Madison further cited the Baron Montesquieu to clarify the extreme danger of specifically expanding Executive Power through the usurpation of Legislative Authority.
“When the legislative and executive powers are united in the same person or body,” says he, “there can be no liberty, because apprehensions may arise lest THE SAME monarch or senate should ENACT tyrannical laws to EXECUTE them in a tyrannical manner. “
Justice Story in his Commentaries on the Constitution detailed the same concerns the Constitution addressed to ensure the safety and liberty of all through the vigilant separation of powers.
In the establishment of a free government, the division of the three great powers of government, the executive, the legislative, and the judicial, among different functionaries, has been a favorite policy with patriots and statesmen. It has by many been deemed a maxim of vital importance, that these powers should for ever be kept separate and distinct.
One must only look at the enumerated powers of Congress to ascertain if an area falls within the scope of the Federal Government. If it does not, then Congress should not be passing laws addressing those areas. Even more clearly, the President and Executive Branch should never be making laws or regulations governing these areas.
Education is a clear example of an area not found anywhere within the enumerated powers granted to the Federal Government. Yet, there have been numerous attempts by the Executive Branch through the Department of Education to extensively regulate education, even down to the content that is taught in schools. The constitutional validity for the very existence of the Department of Education (DOE) should be questioned. But its implementation of Common Core State Standards (CCSS) should be questioned even more. The CCSS are just one of many examples of an overreach by the Executive Branch. Through these standards the DOE is not only unconstitutionally exercising legislative authority by essentially creating laws and regulations, but also asserting control over an area that was intended by the Founding Fathers to be Constitutionally beyond its reach.
Cynthia Noland Dunbar is Vice President of Curriculum & Instruction at Global Educational Ventures. Previously, Cynthia served as Assistant Prof. of Law and Advisor to the Provost at Liberty University.
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