With a new, conservative House of Representatives and a legislatively checked Senate, the question is no longer whether to scale back the size and scope of government, but how. Yet even if the era of big government is on a downward trajectory, reducing the size of government will require a long, dogged and savvy effort. “Abolish the Department of Education” has been a rallying cry for conservatives since the Reagan administration, but simply eliminating the Department of Education (DoE), and other agencies, is not enough.

To stop big government, the laws that empower agencies must also be eliminated.

The Department of Education was created in 1980. Before that, a Department of Health, Education and Welfare (HEW), managed the federal education functions the U.S. Congress enacted. Interestingly, DoE has the fewest employees of any cabinet department (4,200), yet its reach is huge, touching “approximately 56 million students attending some 97,000 schools and 28,000 private schools,” and its programs “also provide grant, loan and work-study assistance to about 11 million postsecondary students.” 

Laws make a bureaucracy. If a conservative Congress “abolished the Department of Education,” the only thing that effectively would change is the name on the building and stationary. Federal education laws and regulations would still have to be enforced – somewhere.

DoE is governed by a mesh of laws that includes: Elementary and Secondary Education Act (1965); Higher Education Act of 1965; Education for All Handicapped Children Act (1975); Equal Access Act (1984); No Child Left Behind Act (2001); the Individuals with Disabilities Education Act (2004); and, Race to the Top (2009). Each one of these laws permits the lawyers amongst those 4,200 DoE employees to write regulations that have the force of law.

Consider No Child Left Behind: As noted by education analyst Lindsay Burke, “As a result of No Child Left Behind, states were burdened with nearly seven million man-hours of paperwork in order to comply with new federal mandates, costing states an estimated $141 million. And while the federal government provides just nine percent of funding for public education, it is the source of an estimated 41 percent of the administrative compliance burden for states.” 

After a while the statutes and regulations become so arcane that only legal specialists can hope to understand them. Medicare regulations are a great example. Eventually, the government employees enforcing laws and writing regulations become special interests dedicated to fighting any simplification that would limit their Gnostic powers and high-paying legal jobs.

The result of this blizzard of law and rules has been a major cause of federal and state government employment – stretching across states and agencies and burdening Americans.

As a statute’s support industry and special interest beneficiaries accumulate, changing government becomes increasingly difficult. And attempts to provide corrective regulations by conservative administrations have generally failed.

First, regulations cannot override statutes, so they cannot eliminate a statute-created program or mandate.

Second, agency bureaucrats who know the law better than the political appointees will draft the regulations and implement them to impede deregulation.

Third, regulations can be reversed or rescinded by the next liberal president.

Thus, the only effective way to eliminate programs or reduce government is to repeal the statutory language that creates agency power.

In many cases, the statutes would not be hard to identify. Take the EPA for example: Amend the statute that has allowed the EPA to run amok regulating that “pollutant” carbon dioxide. With one stroke, EPA’s economy-strangling global warming regulations would be nullified. As the Obama administration moves to govern by regulatory fiat, conservatives will have to limit government by using the new weapons of statutory fixes and eliminating agency funds for specific actions.

Repealing existing laws will be difficult. President Obama will veto such legislation, which requires a two-thirds majority in the House and Senate for an override. That won’t happen often. Thus, it is critical to elect a president dedicated to limited government, and senators who will give conservatives a 60-vote majority to overcome filibusters.

Finally, those dedicated to limited government – especially law students, lawyers and administrative experts – must lay the groundwork for such actions by learning what key provisions in various laws, if removed, would cut the heads off these various regulatory snakes.

This will take years of effort and innovative thinking. Public policy organizations and their donors will need to devote substantial resources to laying the groundwork for limited government by producing leaders who know how to bring it about. Our Bunker Hill will be Capitol Hill.

Conservatives are generally uninterested in the nitty-gritty aspects of government. This is understandable, given how aggravating the study of such minutiae can be. However, that must change if we are to win this long war against entrenched statism and preserve liberty in America.

Chris Gacek is Senior Fellow at the Family Research Council.