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Federal Opinion

“Waivers” Are Fine...Back-Door Legislating Via “Strings”? Not So Much

By Rick Hess — June 14, 2011 3 min read
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There seems to be some confusion about the problem with our earnest Secretary of Education’s chest-thumping promise to take things into his own hands if Congress doesn’t fix NCLB by August. The problem is not that he’s pledging to waive some of the law’s goofy provisions. No one is disputing that he’s empowered to do so (see, for instance, Mike Petrilli’s take here).

So, what is the problem? It’s that Duncan has said that he plans to attach “strings” to those waivers, so that states will have to adopt his priorities in order to gain flexibility. He has clearly signaled that he regards this as a back-door opportunity to promote his preferred approach to teacher evaluation, the Common Core, and such with or without Congressional permission. This is what has so infuriated observers (see Alexander Russo’s roundup here).

Duncan wrote yesterday in POLITICO, that, “Our children get only one shot at an education. They cannot wait any longer for reform...Our children...deserve a world-class education--not some day, but today.” Striking was the vaguely Trotskyite sentiment and the disdain for democratic process. Fact is, I agree more than I disagree with the agenda Duncan is itching to impose. But we are a nation of laws. And, however nifty Duncan may be, there’s a lot of reasons to resist giving Cabinet secretaries free rein to impose their will just because they think it’s the right thing to do.

Today, we’ll skip the practical and political questions raised by Duncan trying to force-feed states an agenda that Congress rejects, and in a manner sure to rile conservatives who might otherwise support many of his proposals. Rather, given Duncan’s distressing suggestion that he’s too busy saving kids to worry about Constitutional niceties, it might be time for a quick refresher on American government.

First, as a general matter, the executive branch is not empowered to make laws. It’s empowered to execute the laws that the legislative branch writes (hence, the term “executive branch”). If Duncan doesn’t like that, or finds it too restrictive, he can take it up with Madison...or Montesquieu. But that’s the deal.

Second, the executive and the legislative branches are not co-equal. The American founders very explicitly embraced the logic of legislative supremacy, which is why Article I of the Constitution is devoted to the legislative branch and spells out all those cool powers, and why the legislative branch, and only the legislative branch, gets to write laws. Congress can sometimes choose to delegate rule-making and administrative authority to executive agencies (e.g. the SEC or FDA), but it has not done so in this case.

The executive branch has no authority to issue legislative timelines to Congress, and Cabinet secretaries have no authority to impose their will if Congress doesn’t behave as they’d like. In 2001, Congress passed the No Child Left Behind Act. Like it or not (and, as readers know, I’ve never been crazy about it), NCLB is the law of the land until Congress says otherwise. The law gives Duncan the authority to grant waivers, but not to use that authority to compel states to adopt other measures as a quid pro quo. This scheme for back-door legislating of which Duncan seems so proud, and to which it appears ED’s general counsel has (unbelievably) signed off, is as politically tone-deaf as it is Constitutionally offensive. I can only imagine how loudly (and reasonably) Obama partisans would scream if a Romney administration started using Heath Care Reform Act waivers as a strategy to compel states to accept legislative changes that Congress wouldn’t endorse.

After all, however convinced Duncan is of his rightness, there are many who may disagree. That’s right and honorable. The way we settle such disputes in a democratic nation, for better and worse, is through the slow, frustrating, and flawed democratic process--not via administrative fiat. If Duncan has a problem with that, I think he may be in the wrong line of work.

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