Legality of the War Against ISIS: Still Disputable

Courtesy of Karl-Ludwig Poggemann

Courtesy of Karl-Ludwig Poggemann

By: Mahira N. Khan

The Islamic State of Iraq and Syria (ISIS) grabbed the world’s attention for mass murders, public executions, and the recent beheadings of two American journalists and a British aid worker.  ISIS surged through large areas of Iraq and Syria as well as other parts of the Middle East and employs between 20,000 and 31,500 fighters.  Experts agree “they are better organized and more dangerous than al-Qaida.”

President Obama’s war against ISIS is off to a “shaky legal start.”  Since August, Obama enacted two strategies against ISIS, actions that may not be legal.  On September 17, Obama signed a bill into law that gives the US military a “green light” to arm and train “moderate” Syrian rebels to fight against ISIS; one of the two measures the President has taken.  Supporters of the strategy agree more must be done to combat ISIS as it moves quickly through Iraq and Syria.  However, several lawmakers are either skeptical or oppose the plan entirely.  They fear more harm than good as it would involve handing weapons to the groups whose top priority is to topple the Syrian President Bashar Assad.  The Senate initially opposed the plan as well, fearing documented reports of ties between “moderate” rebel forces and ISIS and an accidental arming of ISIS.

Nonetheless, within one month the plan was put into action, and on October 21, ISIS fighters seized “at least one cache” of weapons airdropped by the US after missing its intended recipients.  The lost weapons were “more an embarrassment than a strategic loss,” as ISIS already possesses US weaponry worth millions of dollars that they captured from fleeing Iraqi soldiers.  Currently, Obama’s second plan of action is intensifying.  Along with the support of the Syrian rebels, the President authorized airstrikes over ISIS positions in Iraq and Syria.  The airstrikes have been extreme, while producers of weaponry have reported soaring share prices.

Support for Syrian rebels and airstrikes are attempts at keeping American “boots off the ground.” There are requests for US troops on the ground; however, Obama has not asked Congress for legal authority to formally declare war.  Obama repeatedly cited the 1973 War Powers Resolution this past summer, which held that the President has a 60-day window to conduct hostilities without an act of Congress.  Here however, the 60-day window expired as of October 7.  Absent an explicit authorization by Congress or the War Powers Resolution, wars lose their legality.

The question then is: what legal basis justifies the continued international attacks against ISIS?  The Obama administration points to the 2001 and 2002 Authorization for Use of Military Force (AUMF) to justify the continued military action, insisting no new resolution is required as the AUMF is still applicable because it satisfies the War Powers requirement for “specific authorization” from Congress.  Therefore, “the War Powers Resolution’s 60-day limitation on operations does not apply.”

This justification is “implausible.” The 2001 AUMF requires a nexus to the group responsible for the 9/11 attacks, and the 2002 AUMF was approved for the invasion of Iraq to overthrow Saddam Hussein. Both resolutions pre-date the existence of ISIS.  Supporters of the justification argue that ISIS is comprised of members who were part of the group responsible for the 9/11 attacks, creating the nexus.  However, even this argument is flawed considering ISIS and al-Qaeda are no long affiliated and al-Qaeda publicly renounced any association.  Additionally, airstrikes have extended beyond Iraq and into Syria.  Continued reliance on the 2002 AUMF is flawed.

Legality of the military action is questionable under international law as well. As the US is using force in another country, the operations are lawful, as defined by the UN Charter of which the US is a founding signatory, only if they can be justified under international law.  If: (1) the intervention is authorized by the UN Security Council, (2) it is a clear case of self-defense, or (3) if assistance is requested by the other country’s government, force may be authorized.  Here, it is true that the Iraqi Government requested US assistance in halting the spread of ISIS and to prevent the genocide of Iraqi religious minorities. However in Syria, none of these conditions apply.

Unlike the strikes in Syria, the Obama administration relies on a principle of self-defense to justify attacks in Iraq.  The administration argues ISIS infiltrated Syria to attack Iraq, and although Syria has not formally invited the US, the Iraqi government has.  The administration explained its strikes in Syria in a letter to the U.N., claiming that the US has the right to attack ISIS in Syria to defend Iraq because Syria is “unable or unwilling to prevent the use of its territory for such attacks” and “states must be able to defend themselves, in accordance with the inherent right of individual and collective self-defense.”  The UN stated that the US initiated necessary and proportionate military actions in Syria to “eliminate the ongoing [ISIS] threat to Iraq.”  Therefore, the defense of Iraq, not necessarily Syria, triggers the right to use force against ISIS in Syria.

Arguably, attacks in Iraq are justified under a right to self-defense as ISIS has and continues to conduct armed attacks of sufficient scale by seizing towns and cities, undermining the “territorial integrity” of Iraq.  International law permits non-state actors to carry out armed attacks to defend a country.  In Syria though, lack of action has allowed ISIS to operate with impunity, leading to ISIS’s growth in Syria and expansion into Iraq.  It is critical to the legality of US action that the Syrian regime lack capacity and capability to dismantle ISIS.  That the regime may be willing to tackle ISIS is not enough to prevent Iraq or its allies from invoking the self-defense doctrine.

Without inability and unwillingness, any US action remains illegal under international law. On September 23, the UN Secretary General endorsed US action, noting Syria had over two years to dismantle ISIS and the strikes “took place in areas no longer under the effective control of [Syria].”  Additionally, international law requires any defensive attacks against ISIS be proportionate to the scale of ISIS’s attacks, and any response have a reasonable objective. Further, the response cannot go beyond achieving the objective.  Thus, any airstrikes against ISIS assets, bases, and fighters in Syria must be proportionate, but not necessarily equal, to ISIS’s attacks against Iraq, and the attacks may not go beyond the objective, in this case, to dismantle ISIS.

The legality of US action is uncertain. Iraq has an indisputable right to self-defense against armed attacks by ISIS in Syria, but only if it can be shown the Syrian regime is unwilling or unable to control the threat. This legal right extends to the US as Iraq authorized the US to intervene on its behalf in self-defense given Iraq’s own inability to do so independently.  Obama may have lost legal justification under domestic law, but he might get away with carrying out military action under international law, especially given Syria’s lack of interference with the operations so far.

Corporate Tax Inversions: Another Symptom of a Complex Tax Code in Need of Reform

CC BY 2.0 Chris Tolsworthy

CC BY 2.0 Chris Tolsworthy

By: Stephen Welker

Some of the latest corporate “shenanigans” drawing headlines are corporate tax inversions and an Obama administration bent on their extinction. In July, during an interview with CNBC, President Obama decried corporations who change their official addresses to more tax favorable countries such as Ireland or Bermuda as “gaming the system.” In September, the U.S. Department of Treasury announced new rules to combat corporate tax inversions. These efforts simply mark another insignificant bandage on a hemorrhaging tax system, one which can only be fixed by dramatic reforms in Congress.

What are corporate tax inversions? The Department of Treasury defines them as “transaction[s] in which a U.S.-based multinational restructures so that the U.S. parent is replaced by a foreign parent, in order to avoid U.S. taxes.” The transaction is entirely on paper; it entails no movement of offices, factories, or personnel. But by changing the nationality of the formerly U.S. corporation, it enables much of the corporation and its subsidiaries to avoid U.S. taxes in favor of lower foreign taxes.

Why invert? Simply put, U.S. corporate taxes are too high and reach too much income. After Japan dropped its corporate tax rate to 38.1% in 2012, the United States achieved the distinction of maintaining the highest corporate tax rate (39.1%) in the developed world. Additionally, the U.S. adheres to a widely abandoned system of worldwide taxation which penalizes a U.S. corporation for being American. Most developed countries have embraced a territorial system of taxation where income is generally taxed at its source, conversely the U.S. system – with a few exceptions – taxes income of its citizens wherever it is earned. Under a territorial system, the income earned by a U.S. subsidiary in, say, Germany would pay German taxes on its income. Under the U.S. worldwide system, the U.S. company owes U.S. taxes on that income earned in Germany, above any creditable taxes paid to the German government. Thus, U.S. companies, without gimmicks like inversions, could not avoid the steep corporate rate by moving their business offshore. Notwithstanding politicians’ claims of a corporation’s patriotic duty to pay its fair share, the nature of the U.S. corporate tax regime incentivizes U.S. corporations to invert. It is a question of global competitiveness and good business sense. Even after the Treasury’s efforts to plug the holes, inversions are not going away.

The Burger King example is instructive. Burger King is moving forward with its deal to purchase Tim Hortons Inc., a Canadian company, for $11 billion.  As part of the deal, its headquarters will move to Canada where it will bask in the warmth of Canada’s friendly 26% corporate tax rate.

Since money earned in the United States is taxable income regardless of a corporate’s citizenship, a primary concern of the U.S. government in the case of inversions is active income earned by U.S. corporations’ controlled foreign corporations (“CFCs”). Normally, a CFC does not pay U.S. taxes until its earnings are repatriated into the United States via dividends to its parent U.S. company. This has resulted in perpetual deferral of U.S. taxation by leaving the income outside the United States. Congress recently addressed the deferral problem on a temporary basis by granting a tax holiday. Results were disappointing as far as Congress was concerned, but corporations which took advantage of the holiday saved billions. Corporations cannot count on another tax holiday any time soon, so inversions provide a way to bypass the taxes permanently. By incorporating in a country which does not tax the active income earned of these CFCs, the corporation beats the U.S. system.

If one is left exasperated by the complexity of this tax system which encourages these corporate maneuvers, seemingly bereft of any motive other than tax savings, one is in good company. It is general consensus within Washington that tax reform to reduce complexity has bipartisan support. Unfortunately, those general calls for reform seem to be all Congress can accomplish on this front, opting, instead, for more patchwork legislation. The reasons why are obvious: a complex tax code is an exploitable tax code. Given the choice between a lower corporate rate or avoiding taxes altogether through gimmicks, corporations will shell out money to accounting and tax law firms to get those gimmicks. And Congress, while paying lip service to tax reform ideals, appears all too happy to make sure those gimmicks are always available. Until Congress embraces meaningful reforms to its taxation of international transactions, corporate tax inversions are likely to continue, and we may see more classic American companies spurn their native land for friendlier pastures. Given the financial incentives, I’m not sure we could blame them.

Wellness International Network v. Sharif: A Return to a Formalist Reading of Article III?

Courtesy of Roman Boed

Courtesy of Roman Boed

By: Jeff Elkin

The constitutionality of bankruptcy courts is a recurring and thorny issue implicating the limits of Congress’s power to delegate the judicial power of the United States. This Term, the Supreme Court will write the next chapter in the bankruptcy court saga when it hears Wellness International Network v. Sharif, cert. granted, 134 S. Ct. 2901 (2014).  Sharif challenges the premise, established in Commodities Futures Trading Commission v. Schor, 478 U.S. 833 (1986), that litigant consent can furnish an Article I court’s constitutional authority to issue final judgments in private rights disputes. An Article I court (a.k.a. “legislative court”) is an adjudicatory body statutorily created to implement one of Congress’s enumerated powers, and staffed by officials without life tenure, in good behavior, and protected against salary diminishment.

Schor, including its limits on bankruptcy court jurisdiction, is a functionalist anomaly in the Court’s otherwise formalist Article III jurisprudence,. After a survey of the Court’s bankruptcy court line of cases, this post argues the Constitution demands a formalist reading of Article III prohibiting Article I courts from deciding issues of private rights, regardless of litigant consent.

I. The Supreme Court’s Formalist Bankruptcy Court Jurisprudence

The Bankruptcy Act of 1978 (“Act”), established a nationwide system of specialized courts to handle the flood of claims inherent in a declaration of bankruptcy. These bankruptcy courts were staffed by officials (“bankruptcy judges”) presidentially appointed to fourteen-year terms. They were empowered to decide not only statutorily-defined bankruptcy claims, but also claims by and against the bankruptcy estate that arose in the process. Thus, a bankruptcy court’s jurisdiction included common law contract and tort claims related to the bankruptcy. The bankruptcy courts could also issue stay orders binding on Article III courts exercising concurrent jurisdiction over such claims.

A. Northern Pipeline

In Northern Pipeline Construction Company v. Marathon Pipe Line Co., 458 U.S. 50 (1982), a plurality of the Court struck the Act as an unconstitutional delegation of federal judicial power for two reasons. First, the Act unconstitutionally granted the non-Article III bankruptcy courts power to issue final judgments in claims involving private rights (those centered on common-law rights). This holding relied in part on Crowell v. Benson, 285 U.S. 22 (1932). Crowell held Congress could implement legislation by establishing Article I courts to preliminarily decide certain fact-based issues prior to litigation in the Article III court that would finally decide the case. Crowell established Article I courts are properly conceived as adjuncts to Article III courts. Contrarily, in Northern Pipeline, Congress empowered bankruptcy courts to issue final judgments subject only to the judicial review from an appellate court. Article I courts were only allowed to decide issues of public rights. Public rights disputes are those 1.) to which the federal government is a necessary party or involve the waiver of the federal government’s sovereign immunity, and 2.) which center on rights created by federal statute or regulation. Thus, Congress violated Article III by granting Article I bankruptcy courts power to finally decide private rights disputes.

Second, the Act unconstitutionally granted non-Article III judges power over “essential attributes” of Article III judicial power.  By granting bankruptcy courts power to issue final judgments with res judicata effect on Article III courts and the power to stay proceedings in Article III courts, Congress had made the bankruptcy courts too powerful to be justified as adjuncts. Bankruptcy courts were too similar to Article III courts and unconstitutionally threatened the independence, impartiality, and separate power of the Article III judiciary.

Following Northern Pipeline, Congress tried again by amending the Bankruptcy Act in 1984 to cure the 1978 Act’s constitutional defects.  It 1.) limited bankruptcy courts’ subject-matter jurisdiction and the power of its judgments, and by 2.) linked the bankruptcy courts to district courts in a more emphatically adjunct-like fashion.  However, they remained non-Article III courts as bankruptcy judges continued to lack life tenure in good behavior and protection against salary diminishment.

B. Marshall
In Stern v. Marshall, 131 S. Ct. 2594 (2011), the Court held 5–4 that bankruptcy courts lacked constitutional authority to issue final judgments on state law counter-claims pending in Article III courts. Because bankruptcy judges, for whatever reason, remained non-Article III judges under the amended Act, they remained unable to issue judgments on private rights issues with res judicata preclusive effect on Article III courts.

C. Schor
In CFTC v. Schor, 478 U.S. 833 (1986) the Court considered whether the Commodities Futures Trading Commission, after rightfully establishing jurisdiction over a public rights claim, could issue a final judgment on a private rights cross-claim. The Court, in an opinion by Justice O’Connor, decided 7–2 that it could, as long as the parties consented to it doing so

Until Schor, the Court had hewed a formalist line on the jurisdiction of non-Article III adjudicatory bodies stretching back to Murray’s Lessee v. Hoboken Land & Improvement Co., 59 U.S. 272 (1855). There, the Court first held that the separation of powers prohibited Congress from granting legislative courts jurisdiction over private rights claims. However, the Schor Court broke this precedent by prescribing a functionalist test for determining the constitutionality of non-Article III power. After Schor, a court assessing whether Congress had properly granted Article I courts jurisdiction over private rights considers: 1.) whether Congress thereby impinges on essential attributes of judicial power, 2.) the nature of the rights subject to the delegated jurisdiction, and 3.) Congress’s motivation for doing so.  This test prescribes a normatively-guided inquiry so formless that it amounts to a pro forma, pre-rubber stamp judicial “feelings check” guided by no binding precedent whatsoever.  Post-Schor, kangaroo courts may rise and fall with the level of ephemeral inter-branch harmony.  Thus, Schor is the first step down the slippery slope away from an independent, impartial judiciary.

II. Wellness International
This Term, the Court granted cert in Wellness International Network v. Sharif.  The Court will decide “whether Article III permits the exercise of the judicial power of the United States by the bankruptcy courts on the basis of litigant consent.”  Thus, Schor is up for review.

The Court in Wellness International should eliminate the Schor litigant-consent aberration from its otherwise formalist Article III jurisprudence.  As he did in Marshall, Chief Justice Roberts should lead a charge against Article III functionalism, which the Court has rightfully opposed throughout American history.  If Congress is allowed to continue impinging on Article III courts’ essential functions, the surging passions that course through that fickle Body will — through a series of irrational Acts — subjugate entire categories of rights and to tribunals staffed by like-minded pawns.

The absurdity behind this discussion is that Congress could cure bankruptcy courts’ constitutional defects simply by making them Article III courts.  However, Congress continues obstinately to delegate jurisdiction over private rights to officials susceptible to coercion through threats of firing or pay diminishment by the political branches.  The Court should maintain the judiciary’s independence and impartiality by holding categorically that only Article III judges may adjudicate private rights disputes.

A Monumental Moment: President Obama’s Expanded Protections in the Pacific Ocean


Blue Damselfish Chrysiptera cyanea By: Brian Gratwicke

Blue Damselfish Chrysiptera cyanea By: Brian Gratwicke

By: Jeb Harmon

With the stroke of a pen, President Obama expanded United States presence and influence in the central Pacific Ocean by designating the world’s largest marine reserve.  Through a proclamation, President Obama expanded the existing Pacific Remote Islands Marine National Monument to now protect over 490,000 square miles of atolls and islands between Hawaii and American Samoa in the Pacific.  Specifically, the proclamation extends the geographical area that President Bush first set aside as a maritime reserve in 2009 and bans deep-sea mining, resources extraction, and commercial fishing in order to protect the unique marine biology in an area that is roughly three times the size of California.  Yet, the designation of the world’s largest marine reserve has been accompanied by criticism and many have expressed concern over President Obama’s unilateral action to set aside such a large area under the Antiquities Act. The Antiquities Act allows a president to designate national monuments without congressional approval, and since the act’s inception some members of Congress and state legislatures have questioned its powers.

In 1906, President Theodore Roosevelt signed into law the Antiquities Act (16 U.S.C.A. § 431), a law which allows the President to bypass congressional land policies and set aside public land as natural monuments and parks in order to preserve historic lands, protecting them from excavation.  There are three elements necessary for preservation under the act: (1) the monument must be historic or of scientific interest, (2) the land must be owned or controlled by the U.S. Government, and (3) the designation must be limited to the smallest area necessary to manage the monument effectively. However, the first proclamation for a national monument under the act, Devil’s Tower in Wyoming by President Theodore Roosevelt, proved that there was no limit to the geographic size or location of such monuments. In fact, it illustrated that the President’s power was just as expansive as the amount of land one could designate under the act.  President Theodore Roosevelt created 1.2 million acres of designated land during his time in office, and 16 presidents have followed suit by acting to protect national treasures, including Western wonders like the Grand Canyon and Eastern marvels like Acadia National Park.  President Obama’s expansion of the existing Pacific Remote Islands Marine National Monument marks the largest marine monument ever created under the Antiquities Act.  Since Congress first passed the Antiquities Act, some members of Congress and various groups have challenged presidents’ use of the act to set aside vast swaths of land under federal protection.

Congress and state legislators have little power in limiting a president’s use of the Antiquities Act. For example, when President Franklin D. Roosevelt used the act to proclaim the wildlife reserve at Jackson Hole, Wyoming as a national monument under the Antiquities Act, Congress passed a bill to abolish the monument.  President Roosevelt then vetoed the bill. The State of Wyoming later challenged the proclamation in federal court by arguing that there was no evidence to support a claim that the monument contained historic landmarks or items of scientific interest; however, the federal district court found that it had no authority to review the President’s action, unless such an action was arbitrary and capricious.

Even 70 years after the fight over Jackson Hole, members of Congress and some industry stakeholders are still speaking out against the President’s use of the Antiquities Act. President Obama’s latest marine monument has generated some backlash from members on Capitol Hill. House Natural Resources Committee Chairman Doc Hastings called President Obama’s action an example of an “Imperial Presidency,” warning that such an act would harm the economic well being of both the U.S. seafood industry and the U.S. territories. On this harm, the Western Pacific Regional Fishery Management Council—one of eight councils established by the Magnuson Fishery Conservation and Management Act of 1976 to protect fish stocks—explained that the expansion bans fishing in 65 percent of the U.S. Exclusive Economic Zone in the U.S. Pacific Remote Islands. The council and other industry members expressed frustration that the White House did not consult locally with the very people who live and work in an area that makes up 76 percent of the marine-protected areas in the entire United States. The council claims that President Obama’s expansion will further restrict fishermen’s activities in an area that is already heavily restricted.

In response to the President Obama’s proclamation, members of Congress have introduced legislation to preserve fisheries in marine sanctuaries and to push back against the President’s use of the Antiquities Act. In June, Rep. Steve Southerland  introduced H.R. 4988, the Marine Access and State Transparency (MAST) Act, which would amend the Antiquities Act to require Congressional approval for declarations of marine national monuments. In a press release, Rep. Southerland stated that, “[the] administration has blatantly disregarded the concerns of our coastal states and territories.”  In addition to this proposed legislation to limit unilateral maritime preservation, Chairman Hastings of the House Committee on Natural Resources introduced H.R. 4742the Magnuson-Stevens Fishery Conservation and Management Act. This bill would renew the expired Magnuson-Stevens Act to improve fishery management and would allow for this type of management within a maritime monumental sanctuary to fall under the Magnuson-Stevens Act as well.  After the mid-term election, perhaps other members of Congress will react to the President’s plan by co-sponsoring or introducing new legislation.

While some members of Congress have denounced President Obama’s action in the Pacific, green groups and scientific institutes across the country have celebrated the President’s expansion as a monumental moment.  For instance, Elliott Norse, the chief scientist at the Marine Conservation Institute who worked on the original maritime monument designation under President Bush, saluted President Obama as a conservationist and “Rooseveltian.” The Pew Charitable Trust’s Global Ocean Legacy Project leader Matt Rand praised President Obama’s action in more than doubling the protected amount of U.S. marine reserves by calling it “an important day for ocean conservation.” A White House fact sheet points out that the expansion will now protect over 130 sea mounts, which are underwater mountains that are home to unique aquatic life. Above the sea as well, President Obama’s action will protect the millions of seabirds that play a key role as transporters bringing nutrients from the sea to the island atolls.  Even though commercial fishing is banned in the area, traditional and recreational fishing is still permitted within the monument.

The world’s largest marine sanctuary may provide a wealth of new scientific information and may improve the local ecosystem and the Pacific Ocean’s ecological well being at large.  Yet it remains to be seen whether Congress will vote on any of the proposed pieces of legislation to oppose the President Obama’s expansion in the central Pacific as permitted under the Antiquities Act.



AUMF and the Islamic State

Courtesy of the DVIDS

Courtesy of the DVIDS

By: Navi Bajwa

In 2001, Congress passed a bill called the Authorization of Use of Military Force Against Terrorists (AUMF). The law gave the President power to use all necessary and appropriate force against those nations, organizations, or persons that were behind the terrorist attacks that occurred on September 11, 2001. The group that the bill targeted especially was Al- Qaeda and their associates. Thirteen years later the AUMF is still very much in use as the President’s legal justification to wage war against terrorist groups across the globe, but some are calling the law into question. Continue reading →

Education in Crisis: The Need for ESEA Reauthorization and the War over Common Core

Courtesty of Nitram242

Courtesty of Nitram242

By: Amina Haleem

The state of American public education is in crisis. Legislative leaders are facing an uphill battle: repairing the nation’s primary and secondary public education system while attempting to appease an extremely partisan constituency. Compared to the world’s leading nations, the United States is not excelling academically. The United States is currently ranked number 10 in the 2014 World Top 20 Education Poll Official 2nd Quarter Rankings. According to the Center on International Education Benchmarking, the United States drags behind Canada, Estonia, Japan, China, and Singapore, among others, in the critical subjects of science, reading, and mathematics- areas of study the United States has been attempting to strengthen for decades.

Unfortunately, the country’s top legislators continually fail to come to a consensus on the reauthorization of the Elementary and Secondary Education Act (ESEA, previously known as No Child Left Behind law) but not for a lack of trying. In fact, both the House and the Senate have separately attempted to reauthorize the ESEA since 2007, and a number of senators have drafted several bills to do so, including Senator Tom Harkin (D- IA), and Ranking Member Lamar Alexander (R-TN). However, none of the committee markups have passed both houses. Currently, Congress is divided along party lines on education reform. In general, Republicans desire limited federal involvement by allowing local communities and states to determine academic accountability, while Democrats are more preferential to federal benchmarks for national academic standards.

The White House has also been a player in the education reform debate and has taken strides to fund its own public education programs. The Obama administration launched its Race to the Top initiative, receiving $5 billion from Congress in 2008. It dedicated this money to states that adopt strategies to promote effective teachers, rigorous assessments, improved communication, and increased educational resources. Because ESEA has yet to be reauthorized, the NCLB standards can still be legally enforced among states but all policy makers agree that the standards are too stringent and punitive to continue. One of the alternatives to those federal standards was the Common Core State Standards, a seven-year grassroots effort that began in 2009 to reform the traditional American classroom and is currently under intense criticism by state legislators and school administrators. Yet the Common Core standards has not always been so controversial. Only a few months after its release in 2010, 45 states and the District of Columbia endorsed them.

Although the Common Core State Standards aim to improve learning in public education through developing critical learning skills and student-centered teaching, many political activists and educators believe they have become tainted by federal overreach, despite originally being adopted as national standards adopted to “circumvent federal restrictions on the adoption of a national curriculum, hence the insertion of the word ‘state’ in the brand name.” Some of these standards have become piggybacked onto federal Race to the Top grants and the NCLB waivers, provoking the conservative criticism that the Common Core standards are no longer voluntary among states.

As of May 15, 2014, lawmakers from 46 states collectively introduced over 340 bills addressing college- and career-readiness education standards, including the Common Core standards. The criticism ranges from sloppy implementation to inconsistent training of teachers, providing repeal efforts by North Carolina, South Carolina, Indiana, and Oklahoma to significantly change the Common Core standards. There have also been executive orders on the issue. In particular, on May 15, 2013 the Georgia governor issued a strongly executive worded order which included the terms that “no educational standards shall be imposed on Georgia by the federal government” and “that all decisions regarding curriculum and instruction shall be made at the local level.” A legal memo from the Wisconsin Legislative Council reveals that breaking free from already-enacted Common Core standards proves to be challenging; repealing the standards could undermine the legal authority of the State Superintendent and cause the state to be “out of federal compliance”. This is because although the standards were voluntarily adopted in 2010, the state agreed to adopt the Common Core standards in its Administrative waiver from the No Child Left Behind mandates.

It is clear from the rumbling legislative debates across the country that Common Core and education policy in general, like most other national issues, is strongly divided along party lines. However, if the United States hopes to successfully achieve elementary and secondary education reform as well as become a global leader in universal subjects of math and science, the country must not only come to a consensus on basic academic standards in public education but also nationalize those standards in an agreeable way. This is what the Common Core standards attempted to do, however time has proven that the political debate over the federal government’s place in local education will continue to impede academic progress among the nation’s brightest students. In the words of Diane Ravitch, a well-known education historian, “No other nation in the world has inflicted so many changes or imposed so many mandates on its teachers and public schools as we have in the past dozen years. No other nation tests every student every year as we do. Our students are the most over-tested in the world.” In the end, American public school education continues to be the biggest casualty in the war between states and the federal government over implementation of Common Core standards.