If the outcry over unilateral executive moves we’ve seen over the last few years remains consistent, Obamacare and immigration are likely to keep sucking up most of Republicans’ attention and the media’s coverage. But just as sweeping have been executive waivers issued from the hated No Child Left Behind Act – really the most recent reauthorization of the Elementary and Secondary Education Act – that have been instrumental in connecting numerous states to, among other things, the Common Core national curriculum standards. And yesterday, the Education Department issued guidance offering states the chance to obtain waivers – if they do the administration’s bidding, of course – lasting well into the term of the next president: the 2018-19 school year.
These waivers are almost certainly illegal – even a Congressional Research Service report often cited to suggest the opposite says they are unprecedented in scope and, hence, an untested case – and even if they are not deemed technically illegal, the reality is they still amount to the executive department unilaterally making law. NCLB does grant the Secretary of Education the authority to issue waivers from many parts of the Act, but it grants no authority to condition those waivers on states adopting administration-preferred policies. Indeed, as University of South Carolina law professor Derek W. Black writes in a recent analysis of waivers, not only does NCLB not authorize conditional waivers, even if a court were to read any waiver authorization as implicitly authorizing conditions, the actual conditions attached – “college- and career-ready standards,” new teacher evaluations, etc. – fundamentally change the law. In fact the changes, Black notes, are essentially what the administration proposed in its 2010 “blueprint” to reauthorize NCLB. And quite simply, the executive fundamentally changing a law is not constitutional.
The latest waiver guidance goes beyond even the toxic status quo. Not only is the President using his vaunted pen and phone to unilaterally make education law, but law that would continue well into his successor’s term. It is a very dangerous move that, quite frankly, deserves at least as much alarmed coverage as Obamacare waivers and immigration actions. If for no other reason, because the action is moving us swiftly toward a de facto federal curriculum. In other words, direct control over what the vast majority of the nation’s children learn.
Federal power can’t get much more invasive than that.