Published Online: August 19, 2014
Published in Print: August 20, 2014, as Obama Education Policies Add Fuel to Lawsuit Push

Obama Education Policies Add Fuel to Lawsuit Bid

Rep. Pete Sessions
Critical Voices: "Branches of government have always attempted to exert their influences on the other branches. But the president has gone too far. Rather than faithfully executing the law as the Constitution requires, I believe the president has selectively enforced the law in some instances, ignored the law in other instances, and in a few cases unilaterally attempted to change the law altogether." —Rep. Pete Sessions (July 30, 2014, on the House floor before voting on a resolution to file suit against President Obama)
—J. Scott Applewhite/AP-File

House Republicans' plan to sue President Barack Obama for a series of executive actions that they argue were an overreach of his legal authority could have ramifications for some of the administration's signature education initiatives.

The resolution authorizing a lawsuit charges that the president's decision to selectively enforce the health-care law violates his oath to uphold the U.S. Constitution and the separation of powers between the legislative and executive branches. But in building their case against the president, Republican lawmakers named an entire slate of executive actions they claimed represent a similar abuse of authority, including No Child Left Behind Act waivers.

"Specifically, the president has unilaterally waived work requirements for welfare recipients, ended accountability provisions in No Child Left Behind, refused to inform Congress of the transfer of the Taliban Five, and ignored the statutory requirements of the Affordable Care Act," said Rep. Pete Sessions, R-Texas, who chairs the House Rules Committee.

House Republicans passed the resolution on a party-line vote July 30 before adjourning for the chamber's five-week summer recess. The lawsuit isn't yet filed.

Long-Standing Criticism

Conservatives in both the House and the Senate have sharply criticized the waiver program and Race to the Top, the administration's high-profile competitive-grant program, for years. And while a Republican win on the forthcoming health-care lawsuit wouldn't be likely to have immediate implications for education policy, it could provide a launching pad for Republicans looking to roll back the Obama administration's education agenda, which it has furthered through competitions like Race to the Top and its offering of waivers.

"If the suit were to be successful, it would obviously have significant ramifications for what the administration has done with education," said Frederick M. Hess, the director of education policy studies at the Washington-based American Enterprise Institute, who also pens an opinion blog for Education Week. "In any event, conservatives who have concerns about unilateral rewrites of the state of the Affordable Care Act should certainly have the same concerns over the waiver program."

Anne Hyslop, an education policy analyst at the New America Foundation, also in Washington, agreed. "I wouldn't be surprised if members of Congress started to use similar rhetoric or arguments on what's happening in education and with waivers the same way they are for the health-care law," she said. "It's part of the larger argument and political battle right now."

Sen. Lamar Alexander
Critical Voices: "Please explain to me how using your waiver authority to place conditions on states about common standards, about performance targets, about teacher-evaluation systems that are not otherwise required by federal law and, in the case of standards, in my opinion, is prohibited by the law—how does that not amount to, in effect, a national school board?" —Sen. Lamar Alexander (April 30, 2014, during a Health, Education, Labor, and Pensions Committee hearing)
—John Partipilo/The Tennessean/AP

To be sure, the administration is confident that it hasn't overstepped its legal authority, especially when it comes to Race to the Top and the NCLB waiver program.

"I'm bound by the Constitution," President Obama said during a press conference Aug. 6 in response to a question about the impending House lawsuit. "I'm bound by the separation of powers. There are some things we can't do. But what I am consistently going to do is wherever I have the legal authority to make progress on behalf of middle-class Americans, … I'm going to take and seize those opportunities."

Both the president and U.S. Secretary of Education Arne Duncan have underscored for years that they'd prefer Congress act on its own. But in the face of a historically dysfunctional Congress, they reasoned, it's their obligation to use every tool at their disposal.

Questions of Authority

Conservatives first called foul on the administration's operations after Congress passed the American Recovery and Reinvestment Act, the economic-stimulus package, in 2009.

The jolt of funding meant to right a flailing economy included a $4 billion education competition, Race to the Top. The competition issued policy directives to states, GOP lawmakers argued, by coercing them into adopting the Common Core State Standards, aligned assessments, and teacher evaluations based in part on student test scores, among other steps, to have a strong shot at getting the grants.

Worst of all, Republicans said, the program was an end-run around Congress, promoting education policies that lawmakers hadn't approved in any federal law.

The White House has since spun off numerous iterations of the incentive-based grant program.

Two years later, the president announced he was granting Mr. Duncan the authority to issue states waivers from the most burdensome provisions of the No Child Left Behind law—in exchange for those states' implementation of new policies surrounding common standards, new assessments, and teacher evaluations.

Rep. John Kline
Critical Voices: "While greater flexibility in our education system is urgently needed, the department’s [No Child Left Behind Act waiver] proposal is cause for concern. Issuing new demands in exchange for relief could result in greater regulations and confusion for schools and less transparency for parents. Additionally, the proposal raises questions about the department’s legal authority to grant conditional waivers in exchange for reforms not authorized by Congress." —Rep. John Kline (June 24, 2011, in a letter to U.S. Secretary of Education Arne Duncan)
—Evan Vucci/AP-File

It's common for administrations to grant waivers from parts of various laws. In fact, then-U.S. Secretary of Education Margaret Spellings issued hundreds of waivers under the NCLB law when she served in President George W. Bush's administration. But congressional Republicans blasted the conditional nature of Mr. Obama's waiver plan.

Rep. John Kline, R-Minn., the chairman of the House Education and the Workforce Committee, wrote to Secretary Duncan the same day the president announced the waiver offering, questioning the administration's legal authority and asking for the exact statutory language in the NCLB law that allowed for the conditional waivers.

The waiver program "is cause for concern," wrote Rep. Kline. "The proposal raises questions about the department's legal authority to grant conditional waivers in exchange for reforms not authorized by Congress."

Sen. Lamar Alexander, R-Tenn., a former education secretary under President George H.W. Bush, said the move would turn Mr. Duncan into "a waiver-granting czar."

To date, the Department of Education has granted 43 states and the District of Columbia waivers.

President Obama and Mr. Duncan made no apologies for their approach. Race to the Top was a competition that states could choose not to participate in if they didn't like the policies attached to it, they noted.

And NCLB provides the secretary broad waiver authority. Indeed, a report that Mr. Kline and other House Republicans requested from the Congressional Research Service, the nonpartisan research arm of Congress, found the administration was acting within its legal authority.

So, when Mr. Obama's re-election campaign revved up in the summer of 2012, the president ran on his ability to use executive authority to get things done. And when he spoke to Congress during subsequent State of the Union addresses, he emphasized that he planned to continue using that authority.

The Lawsuit

Sen. Michael Enzi
Critical Voices: "President [Barack] Obama’s efforts represent a fundamental and dramatic shift in authority from Congress to the administration. This action today clearly politicizes education policy, which traditionally has been a bipartisan issue that attracts support from both parties. It is the responsibility of Congress to develop policy and the president’s proposal is an attempt to effect change outside the legislative process." —Sen. Michael Enzi (Sept. 23, 2011, upon the decision by the U.S. Department of Education to offer states waivers)
—J. Scott Applewhite/AP

While education policy analysts on both sides of the aisle agree that the health-care lawsuit could have ramifications for the administration's education agenda, it would be less about repealing policies and more about validating Republican charges that President Obama and Mr. Duncan have misinterpreted their legal authority.

"What could happen is a shaming, which would limit Obama's and Cabinet secretaries' inclination to do this, and also both set precedent and perhaps create room for Congress to write in some clearer statutory language around some of this stuff," Mr. Hess said.

If the courts side with Republicans in the lawsuit, it's not entirely clear how lawmakers would work the education angle.

"It's premature to discuss how the legal action authorized by the House against the president may or may not affect education policy," said Brian Newell, a spokesman for Mr. Kline and the Republicans on the House education committee.

At the very least, conservatives hope the lawsuit will discourage the president from taking additional executive actions that result in major policy changes, and encourage lawmakers to be more exact in crafting legislation.

"The one thing that this administration has really taught Congress is we need to be a lot more careful and precise in what we write in the statute," said a senior Republican aide to the Senate Health, Education, Labor, and Pensions Committee, who was one of several members of the policy staff who helped craft NCLB.

"The rule of thumb has always been, you follow the law as written," he said. "You can push it a little bit here and there, but you don't try to rewrite the law just to fit your desire. The use of waivers and the use of conditions is certainly not anything Congress anticipated when we wrote No Child Left Behind."

Looking Ahead

Democrats have attempted to swat away the legitimacy of the lawsuit, calling it fodder for midterm-election campaigning.

Related Blog

Though it's unclear how much influence and political capital Mr. Obama has as he enters the last years of his tenure in the White House, the president said he plans to continue using his executive authority in the midst of congressional paralysis.

Ms. Hyslop noted that the political aspect of the lawsuit is more valuable to GOP lawmakers' fundraising for re-election than any practical implication it may have.

"If we find that the waiver authority is illegal, … what would be the alternative?" asked Ms. Hyslop. "All states would have to comply with No Child Left Behind again. Who would want that? Having this rhetorical debate is probably more beneficial to congressional Republicans than actually moving forward with legal action."

Vol. 34, Issue 01, Pages 19,25

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