The battle over higher education is the product of a century of constitutional overreach. Congress, presidents, and the Supreme Court expanded federal power over colleges and universities through a broad reading of the Spending Clause (Article I, Section 8, Clause 1). Recent executive orders, congressional measures, and court rulings now aim to reverse this, but restoring the constitutional order is no small task.

For constitutionalists and legal scholars, America’s experience offers a clear warning: even a written Constitution with explicit limits can erode when spending power grows unchecked. For us in the 2020s, the stakes are clear: if the Constitution means anything, then higher education must return to local stewardship. Otherwise spending conditions will forever serve as a back door for undemocratic governance.

The Founding Fathers saw this danger.

In Federalist No. 45, dated January 26, 1788, James Madison laid out the principle: “The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State Governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will for the most part be connected. The powers reserved to the several States will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people; and the internal order, improvement, and prosperity of the State.”

The Tenth Amendment unequivocally states: “The powers not delegated to the United States by the Constitution… are reserved to the States respectively, or to the people.” Education is absent from the enumerated federal powers. The word “education” is not in the Constitution. For nearly two centuries, some colleges were privately run (‘the people’) and some were governed by local governments and local law (‘the States’). That changed after World War II.

In 1944, Congress passed and President Roosevelt signed the GI Bill, offering federal tuition support for returning servicemen. In 1950, Congress created the National Science Foundation (NSF) to steer research funds into universities. The Cold War further accelerated federal involvement. The 1958 National Defense Education Act earmarked money for science and foreign language programs to compete with the Soviet Union.

By the 1960s, the fight to end racial discrimination brought the federal government deeper into education. The Warren Court decided Brown v. Board of Education in 1954, which gave the federal government authority to enforce the Fourteenth Amendment’s equal protection clause. The Civil Rights Act of 1964, championed by President Lyndon B. Johnson, empowered Washington to cut off funding to institutions that discriminated. The Higher Education Act of 1965 solidified this power, imposing reporting requirements and ideological directives.

Congress could not handle this regulatory power alone, so it delegated enforcement power to the Executive Branch. Afterward, in 1979, Congress and President Jimmy Carter created the Department of Education     . Over time, this unelected administrative apparatus, the so-called “Fourth Branch”, developed thousands of pages of rules, binding “Dear Colleague Letters,” and funding conditions that gave federal bureaucrats indirect control over hiring, admissions, curricula, and campus discipline.

This new federal power was challenged unsuccessfully. In 1987, the Supreme Court heard the case of South Dakota v. Dole. South Dakota had sued the federal government for the 1984-passed National Minimum Drinking Age Act, which cut federal road building funds from any state that did set a drinking age of 21. South Dakota argued that drinking age was not an enumerated power of the federal government and thus they had no power to force it upon. Chief Justice William Rehnquist authored a decision that rejected South Dakota’s case and upheld Congress’ ability to use its Spending Power as leverage. Colleges could refuse the federal money, but few did.

Today, most American universities are financially dependent on this river of federal money. In 2023, colleges received about $60 billion directly in grants and many billions more through federally guaranteed student loans. The Department of Education alone employs more than 4,000 people with an annual budget of nearly $70 billion, issuing around $100 billion in loans to students. The NSF funds about 1,900 institutions and nearly 350,000 researchers annually. Only a small group of colleges refuse this money, including Hillsdale College and the infant University of Austin, so they can remain, in the words of Hillsdale, “truly independent.     ”

The foundations of this Empire of the Spending Clause were laid: Congress uses its Spending Power to legislate beyond its enumerated powers. Congress can set education policy to enforce the Fourteenth Amendment. Congress delegates regulatory power to the Executive Branch. Unelected civil servants in the Executive Branch send directives to higher educational institutions and have the power to cut off funds. Civil servants were not bound to follow the President’s orders. Colleges and universities depend on federal funding. Reform became impossible. Spending in Congress does not trend down. In President Trump’s first term, the civil servants charged with regulating education (both childhood and higher) often refused to follow his directives. As James Sherk wrote for the America First Policy Institute, civil servants “would either produce legally unusable drafts that would never withstand judicial review or drafts that significantly diverged from the DoEd’s policy goals.”

Fixing Policy

Policy can be rolled back. This is underway. In 2023, the Roberts Court decided in Students for Fair Admissions v. Harvardthat race-based affirmative action in college admissions was discriminatory according to the Civil Rights Act.

On taking office in 2025, President Trump issued an executive order to end DEI mandates, programs, and offices within the federal government itself. Executive Order 14173 ended discrimination on the basis of race against Asian and White students in college admissions. The administration also took steps to redefine biological sex strictly based on birth characteristics for federal data, which began impacting how gender identity is tracked in federal education records.

Congress has begun to act as well. The House passed a budget bill that would cut certain student aid programs and remove some regulations tied to ideological conditions. Senate proposals for the budget bill could close loopholes that allow executive regulation of education policy.

Fixing the Constitutional Order

These actions do not fix the underlying constitutional problem. No matter what reforms pass, in the long run Congress will still hold onto the right, or rather, the threat, to issue directives over education spending.

Instead, Congress must affirm the principle of the Tenth Amendment by passing legislation that rejects federal power over higher education. As cases present, the Supreme Court should reassert the Tenth Amendment on behalf of states and against overreach. Finally, the Executive Branch should continue working on restoring sensible unitary power to the President to act within the Executive Branch on behalf of the people.

The American Founders knew the stakes. Thomas Jefferson warned us of the price of abandoning the spirit of the Constitution, “our country is too large to have all its affairs directed by a single government.” Madison fought hard for the powers given to the Federal Government to be few and defined. And George Washington set the standard in practice: “The Constitution is the guide which I never can abandon.”Undoing eight decades of overreach requires strong political will, perhaps the kind of will that forged the Constitution two hundred thirty-seven years ago.      

Kilian Mallon, Ph.D. is a policy advisor and consultant based in Washington, D.C. He is a former postdoctoral fellow and lecturer in Classics at Stanford University, California. He is from Dublin, Ireland.