Last week, I wrote about how the nation’s 6000+ colleges and universities are being inundated by rules, regulations and “guidance letters” from the federal Department of Education, at the rate of about one every work day. The administrative cost to colleges is staggering.
Also last week, Investor’s Business Daily wrote about a sweeping new mandate from the Obama administration that will require cities and counties across the country to conform their zoning codes to what the Department of Housing and Urban Development thinks is a good idea. That idea is a social engineering scheme of monumental proportions.
Since the Constitution, in which the sovereign states gave the federal government certain, limited powers, is utterly silent on the subject of both education and zoning (zoning codes date back only to 1916), what gives the federal government the power to closely regulate both higher education and local zoning? The answer, of course, is money: If you take the king’s shilling, you become the king’s man.
The federal government gives out money for any number of purposes, highway funds, Pell Grants, research money, etc. Once a government, college, hospital or whatever accepts the federal money it becomes subject to federal regulation, simply by virtue of the fact that the federal government can — and regularly does — threaten to turn off the money spigot. In 1984, for instance, Congress passed the National Minimum Drinking Age Act. It required states to set a legal drinking age of 21 (a classic exercise of the police power that is reserved to the states) or lose 10 percent of their federal highway funds. Every state that had a lower drinking age limit, such as New York, felt compelled to comply. In 1987 the Supreme Court in South Dakota v. Dole upheld the law 7-2. The majority said it was a valid exercise of the spending power and was not coercive as it was only ten percent of the funds. In other words, it was pressure, not compulsion. Justice Sandra Day O’Connor, in dissent, argued that the link between drinking by college-age people and drunk driving on federally funded highways was too attenuated to be valid. I wonder how the court would rule today on a similar issue.
Since, as James Madison wrote in his notes on the constitutional convention, “Men love power,” once a source of power (in this case federal funding of non-federal matters) is created, those who can wield that power will begin to do so. There are only two solutions to this usurpation by money power. One is, of course, to not take the king’s shilling. Hillsdale College, for instance, takes no federal or state money of any kind and is flourishing. But that’s simply not practical for most institutions and states. The other is a constitutional amendment that sharply limits the federal government’s ability to regulate in areas that do not concern it regardless of federal funding.