The Texas Agency Massacre

The Texas Agency Massacre

Governor Rick Perry has gained a lot of negative press from his lackluster performance in the Republican presidential primary debates. His defining moment came on November 9, when he struggled for several uncomfortable seconds to remember the third of three federal agencies he promised to kill.[1] But while the national media focused on the damage that Perry’s flub would cause to his campaign, the substance behind his remarks was almost entirely ignored. The governor advocated the shutdown of the Department of Education, the Department of Commerce, and—as he eventually recalled––the Department of Energy. Such an action would have far-reaching consequences for existing law and constitutional processes. (I won’t even begin to talk about Ron Paul, who one-upped Perry by claiming that he wanted to kill five agencies.) Although the odds of the Texas governor becoming president are about as short as his memory, it is still valuable to explore the legal and policy implications of this “small government” rhetoric, as Rick Perry is certainly not the only one to espouse such views.

Education: The Department of Education, through Title I of the Elementary and Secondary Education Act of 1965 (now known as the No Child Left Behind Act), provides federal funding for districts with large numbers of low-income students; in the 2009-10 school year, Title I funds aided over 21 million.[2] The districts receiving these funds––which have some of the smallest independent tax bases in the country––would be devastated if the Department of Education were abolished and the financial spigot turned off. The Department also provides over $150 billion in grants and loans for postsecondary students,[3] without which many high school graduates cannot afford to attend college. Finally, the Office of Civil Rights enforces a great number of federal civil rights laws to prevent discrimination in public schools; these functions would need to be moved to the Department of Justice if the Department of Education were abolished.

Commerce: The Department of Commerce fulfills several functions outlined in the Constitution, including the granting of patents and the conducting of the census. The census is particularly important, as Article I, Section 2 of the Constitution requires an enumeration of the U.S. population every ten years. The Commerce Department also works to attract businesses to the United States, collects vital data on economic growth, and, through NOAA, provides weather forecasts. All of these services would either be discontinued or would need to be transferred to other federal agencies if the Commerce Department were to be disbanded. The former option would deprive the country of a wide variety of important services. It would also create constitutional issues: the granting of patents is a permitted power under Article I, Section 8 of the Constitution, but is not a constitutional requirement; the decennial census, on the other hand, is mandatory, and could not legally be ignored. If the Congress instead moved the main functions of the Commerce Department to other agencies, there would be little net impact on the size of government, which would defeat the purpose of abolishing the department.

Energy: The Department of Energy invests more money in basic and applied scientific research than does any other federal entity except for the National Institutes of Health, to the tune of around $6.5 billion in 2009.[4] It provides funding for investments in alternative energy sources and other innovations, a role that was significantly boosted by the American Recovery and Reinvestment Act of 2009. Perhaps most importantly, the Energy Department has control over the creation and safety of all of the nation’s nuclear weapons. The Department of Energy and its predecessor, the Atomic Energy Agency, have carried out this vital function for 65 years, since the passage of the Atomic Energy Act of 1946. Abolishing the department would require either the shifting of research funding and nuclear safety responsibilities to other agencies or the repeal or amendment of a great number of laws that, in effect, constitute our national energy policy.

The takeaway from this brief discussion is that the act of killing a federal department leads to a great deal of legal complications. All three of the agencies that Rick Perry would like to axe support a wide array of policies that are important to America’s strategic interests and, in some cases, are constitutionally mandated. And much of the work done by the Department of Education also has significant implications for civil rights. Getting rid of these departments would require either automatically deleting every program that they run, which would create political problems, or shifting at least some programs to other agencies, which would lead to a lot of partisan wrangling and could end up having little effect on the size of government. Either option would also create an issue of legal procedure, as Congressional lawyers would have to comb through past legislation to determine which laws would be affected by the abolition or shift in duties, and how those laws would have to be amended. Killing a federal agency, much less three, would be a messy business.

[1] Elspeth Reeve, “Rick Perry Can’t Remember Which Agency He Wants Abolished,” The Atlantic Wire, November 9, 2011,

[2] U.S. Department of Education, “Improving Basic Programs Operated by Local Education Agencies (Title I, Part A),”

[3] U.S. Department of Education, “Get Money for College,”

[4] National Science Foundation, “Federal Funding of Basic and Applied Research Increases in FY 2009,”

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