The White House has announced its plan to grant waivers of the provisions of No Child Left Behind (NCLB) to states that agree to put in place the education reforms favored by the administration. Thus states that agree, for example, to adopt the Common Core state standards for what students should learn and to evaluate teachers for tenure based on student test gains will be freed from the consequences facing schools that fail to meet adequate yearly progress goals under NCLB. The reforms the administration seeks as a condition of granting waivers are the same that it put forward in its Blueprint for reauthorizing NCLB, and that it advanced in its Race to the Top competition using the $5 billion in discretionary funds made available to it by Congress under the Stimulus Act…
It is one thing for an administration to grant waivers to states to respond to unrealistic conditions on the ground or to allow experimentation and innovation. Similar waiver authority has been used to advance welfare and Medicaid reform going back to the Reagan administration, and to allow a few districts and states to experiment at the margins of NCLB in the Bush administration. It is quite another thing to grant state waivers conditional on compliance with a particular reform agenda that is dramatically different from existing law. The NCLB waiver authority does not grant the secretary of education the right to impose any conditions he considers appropriate on states seeking waivers, nor is there any history of such a wholesale executive branch rewrite of federal law through use of the waiver authority.
In other words, the states are stuck trying to meet an impossible NCLB standard by 2014 and Congress is stuck trying to reach a compromise on revised standards before then. But rather than merely waiving the current standards until Congress has come up with something new, O’s actually going to impose new standards of his own as a condition of the waiver. He’s basically swapping out a federal law for his own policy, in other words. Just like he did in ignoring the War Powers Act to wage war in Libya, just like he did in ignoring the Recess Clause to appoint Cordray and the new NLRB commissioners. This strategy of bypassing Congress with unilateral executive action actually dates back nearly two years, well before the GOP took back the House, but he’s gotten more aggressive with it lately as our gridlocked Congress’s approval rating sinks ever deeper into the toilet. He’s making a bet here about the public’s view of separation of powers: So long as he can argue that he’s taking action towards a virtuous end — and education is as virtuous as it gets politically — voters will let him slide on the legal niceties. A war to avert a humanitarian disaster in Libya, a new consumer-protection advocate, relief for public schools from onerous, unrealistic federal regulations: The ends justifies the means in all three cases because that darned “do-nothing Congress” he’s running against refuses to see the light. You already know from yesterday’s poll on Gitmo how seriously the left takes its own rhetoric about the rule of law; O’s wagering that the rest of the electorate is in the same boat, ready and even eager to let the unitary executive cut through swaths of procedural “red tape” so long as it leads to a good outcome. Is he wrong?
Two clips here, one of today’s announcement and the other of Reason editor Nick Gillespie talking about separation of powers and the new waivers last August when they were first announced.