The Road to Czardom

Back in 2009 there was a lot of hysteria over the Obama administration’s many “czars,” and we at Cato tended to dismiss it; as Gene Healy said in the Washington Examiner, “the conservatives’ current bout of czar mania elevates symbolism over substance…. Often, czars are mere figureheads, appointed to signal concern over the latest hot-button issue. “

But just this week I’ve noticed a couple of examples of actual czardom – the exercise of arbitrary and autocratic power – from two of President Obama’s Cabinet secretaries.

Last week Sen. Harry Reid and House Speaker John Boehner made a deal under which the Senate would pass the House’s bill to fund the Federal Aviation Administration through September and end the brief partial shutdown of the agency.  They agreed that Transportation Secretary Ray LaHood would waive the small-airport subsidy cuts. But where does a Cabinet secretary get the authority to waive legislation passed by Congress – even if two members of Congress say it’s OK with them? The administration can’t spend money Congress hasn’t appropriated, and it can’t spend money in defiance of clear legislative language. LaHood is assuming the powers of a czar.

And now Secretary of Education Arne Duncan has announced that he will unilaterally override the centerpiece requirement of the No Child Left Behind school accountability law, that 100 percent of students be proficient in math and reading by 2014. We’ve criticized that unrealistic requirement ourselves. But unrealistic or not, it’s the law. According to the New York Times:

Mr. Duncan told reporters that he was acting because Congress had failed to rewrite the Bush-era law, which he called a “slow-motion train wreck.”

Again, I too think Congress should rewrite – or repeal – this law. But alas, it hasn’t done so. Even the Times, often comfortable with the exercise of federal and executive power, notices that

The administration’s plan amounts to the most sweeping use of executive authority to rewrite federal education law since Washington expanded its involvement in education in the 1960s.

Which is a little misleading; in the 1960s Congress passed laws that extended federal power over local schools. The exercise of executive power is a different issue.

Duncan’s plan to waive bad provisions of a law is reminiscent of the more than 1,000 waivers from the provisions of the new health care law that Health and Human Services Secretary Kathleen Sebelius has already granted. One problem with such waivers, of course, is the suspicion that they will be granted to the politically connected or even to political supporters. Philip Hamburger of Columbia Law School says waivers raise “questions about whether we live under a government of laws. Congress can pass statutes that apply to some businesses and not others, but once a law has passed — and therefore is binding — how can the executive branch relieve some Americans of their obligation to obey it?” The rule of waivers is not the rule of law.

Congress has far too often been supine in the face of executive power. In fact, it could be argued that Congress is as eager to avoid responsibility for lawmaking as presidents are to arrogate it. Duncan’s argument that he was acting because Congress had not brings to mind former White House chief of staff Rahm Emanuel’s statement a year ago:

“We are reviewing a list of presidential executive orders and directives to get the job done across a front of issues.”

“To get the job done” – that is, to pass laws that the people’s elected representatives have declined to pass.  That’s not separation of powers, that’s the road to czardom.