More insight to Delaware Governor Markell’s willful abuse of power

“Section 365. The provisions of 14 Del. C. c.1, and any implementing regulations in 14 DE Admin Code that the Delaware Department of Education determines to be inconsistent with the Department’s ESEA Flexibility Request as approved by the U.S. Department of Education shall not be applicable to Delaware Public Schools and School Districts during the flexibility waiver period, and the department is authorized to promulgate interim regulations consistent with said application and approval which shall be effective during the flexibility waiver period.”

Unfortunately for the DOE, there is the constitutional principle of the Separation of Powers, inherent in which is the nondelegation doctrine, which says that the General Assembly cannot constitutionally delegate its legislative power to write the law without providing the Executive Branch an intelligible principle, or else the principle of the Separation of Powers is violated and the law is unconstitutional.

The Delaware Constitution states:

“§ 1. General Assembly to hold legislative power; composition. Section 1. The legislative power of this State shall be vested in a General Assembly, which shall consist of a Senate and House of Representatives.”

The General Assembly holds the legislative authority and has the power to write the law. The Executive Branch does not have that power and it is not allowed to exercise that authority. In writing regulations, the Executive Branch must be guided by an “intelligible principle.” However, Section 365 of the budget would allow the Executive Branch to write the law all by itself, with no input from the Legislative Branch (beyond “do what you want”).

To make matters worse, did anyone happen to notice the heading of Chapter 1 in Title 14 of the Delaware Code?


Section 365 of the Budget Bill would give the Department of Education any power it would like, even the power to entirely determine its own powers and authority. No intelligible principle; no guidance from the Legislative Branch. The Executive Branch would get to determine if any of the laws that determine its own authority are inconsistent with a document they have unilaterally written and gotten approved solely by the federal Executive Branch. As long as they get approval from another Executive Branch agency, they can do anything they want. That is clearly unconstitutional in violation of the nondelegation doctrine, and Section 365 is unenforceable as a provision of the Budget Bill.

Now, why would the Markell Administration attempt to pull off this unconstitutional power grab and change the language of the past two Budget Bills to include all of Chapter 1 of Title 14?

FY 2014 Budget Bill Section 354:$file/legis.pdf?open

FY 2013 Budget Bill Section 356:$file/legis.pdf?open

Could it be that Subchapter II: Powers and Duties, which outlines the “General powers” of the DOE in § 121 and the authority to implement “Regulations and rules” in § 122, does not allow the DOE to do what it is trying to do in the ESEA Flexibility Request? Those sections set clear limits on what the DOE is authorized to do.

Specifically, § 122(a) says:

“(a) The Department shall adopt rules and regulations, consistent with the laws of this State, for the maintenance, administration and supervision throughout the State of a general and efficient system of free public schools in accordance with this title, including the rules and regulations specified in subsection (b) of this section. Such rules and regulations, when prescribed and published, shall not extend, modify or conflict with any law of this State or the reasonable implications thereof, and shall be binding throughout the State.”

Maybe the DOE knows exactly that what it is trying to do with the six Priority Schools it selected both modifies and conflicts with the “laws of this State” and “the reasonable implications thereof.” And maybe the Markell Administration is very aware that it is having the DOE do a lot of things that are in no way mentioned as part of its powers and duties or any other authority it has.

Specifically, the actions of the DOE with respect to Priority Schools would seem to conflict with § 1043 of Title 14, which provides for the “Authority” of local school boards:

“In each reorganized school district there shall be a school board which shall have the authority to administer and to supervise the free public schools of the reorganized school district and which shall have the authority to determine policy and adopt rules and regulations for the general administration and supervision of the free public schools of the reorganized school district. Such administration, supervision and policy shall be conducted and formulated in accordance with Delaware law and the policies, rules and regulations of the State.”

Additionally, § 1049, headed “Policy making” provides that local school boards shall, among other responsibilities:

“(2) Determine the educational policies of the reorganized school district and prescribe rules and regulations for the conduct and management of the schools,”


“(9) Appoint personnel.”

Now both of those sections are in Chapter 10, which the Markell Administration apparently did not think it needed to wipe out as well in the FY 2015 Budget Bill. But if Markell and his lackeys think that Section  365, whether interpreted strictly or loosly, somehow legitimately authorizes the DOE to use the ESEA Flexibility Request to determine any law
in the State regarding education (and let’s not forget that the ESEA Flexibility Request doesn’t even have to go through the fairly extensive regulatory process that is required even when an “intelligible principle” exists), then they have serious limitations in their understanding of the law of the United States.

If we don’t stand against this, then we are just as guilty as the people trying to destroy our public schools.

John Kowalko III


4 responses to “More insight to Delaware Governor Markell’s willful abuse of power

  1. Might this quote apply?
    “The only thing necessary for the triumph of evil is for good men to do nothing.” Edmund Burke


  2. I am hoping that Rep. Kowalko (and others) will lead the charge in the new session to strike the ideas/intent of Epilogue section 365 this year. I get that it was “needed” to score points for RTTT. Giving the DOE the ability to be immediately responsive was a big deal then. This grant time has passed and the need for the language has passed (not that I believe it was ever needed). Time to make the change.