President Donald Trump has successfully used the bully pulpit to secure the largest school choice expansion in U.S. history with the recent victory in Texas. But now, Congress must resist the temptation to deliver the president a school choice poison pill with the same ingredients as Obamacare. 

Amid a historic movement to “send education back to the states,” many in Congress, despite the best of intentions, may inadvertently empower the very federal bureaucracy they hope to dismantle. Rather than re-energize the states, current proposals, such as the Educational Choice for Children Act, would give birth to unprecedented new federal power over our nation’s private grade schools by tying scholarship funding to a new federally administered tax program. 

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The ECCA offers federal tax credits for individuals and corporations that donate to nonprofit scholarship-granting organizations, which in turn distribute scholarships to eligible students to be used for private school tuition. But what will stop the federal government from using this new beachhead to slowly smother private education as it has done to public schools? The answers are not reassuring. 

At its core, the argument for creating this new national apparatus rests on a single hope. One prominent proponent recently insisted, “The ECCA, first and foremost, it is not a federal program. It is a tax bill. That’s really, really important. There is no role whatsoever for the Department of Education in this bill.” 

That’s good news indeed about the Department of Education, but there’s just one problem. What else was framed as just a tax bill, not a federal program? 

Obamacare. 

Indeed, it was this same tortured logic from the Supreme Court that upheld the flagrantly unconstitutional overreach of the Left’s signature attack on federalism, the Affordable Care Act. 

Trump campaigned and won in 2016 by pledging to dismantle Obamacare’s illegal insurance mandate, which he did. If he is to satisfy his subsequent pledge to return education to the states in 2024, Congress must not reach for another dose of the same Supreme Court concoction that watered down the Constitution and the prime role of states.

As the education policy director of the organization that created the nation’s first education savings account school choice program, I wholeheartedly share the goal of expanding private school choice to every child in every state. And nearly every proponent of the ECCA I’ve spoken to agrees that they don’t want to enlarge the federal government or create the opportunity for the feds to begin dictating the operations of private schools in the same way they’ve so ruinously done with our nation’s public schools for the past 50 years. 

The ECCA architects have admirably worked to craft buffers against federal meddling. Still, just as Congress is looking to enact the ECCA with a simple majority vote using the budget reconciliation process, a pro-teachers union administration and Congress will just as easily alter those provisions to pile on a wish list of leftist controls.

Indeed, nothing will stop them from adding to the qualification criteria of either the SGOs or the schools ultimately eligible for those dollars. The same teachers union whisperers who colluded with Washington to shutter schools during COVID-19 will be all too happy to ensure that ECCA-eligible schools hire only “qualified” teachers approved and trained by leftist-dominated teachers’ colleges, require that private schools observe Centers for Disease Control and Prevention school closure guidelines, or comply with whatever future iteration of gender identity-based non-discrimination policies the Left invents. 

Unlike Obamacare, the ECCA is currently a carrot rather than a stick, and swapping out the Department of Education with the Internal Revenue Service would hopefully be an upgrade. 

But consider that even before the recent cuts, there were just 4,000 staff members at the Department of Education, compared to the 87,000 IRS employees that the Left’s “Inflation Reduction Act” alone gave new funding to splurge on. More importantly, conservatives are not about to forget that the IRS waged ideological warfare against the Tea Party and conservative nonprofit organizations in the 2010s. 

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The urgency for expanding school choice is real, but so is the generational damage from further empowering the federal government over our children’s education. In just four short years, states have brought school choice to over half the nation’s children. School choice allies already have two winning playbooks: the Constitution and the successful campaign to oust opponents of choice in state-level primary and general elections alike, from Texas to Florida to Virginia. 

Rather than eroding these pillars and shielding blue-state governors from the exodus of families taking their children and economic activity to freer states, Congress should continue to focus on shrinking the tentacles of the federal government, not growing new ones. 

Matt Beienburg is the Director of Education Policy at the Goldwater Institute.