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.
At this point I don’t want to write another word about Common Core supporters’ cheap rhetorical tactics. Unfortunately, a new op‐ed by Chester Finn and Michael Petrilli of the Thomas B. Fordham Foundation demands it. And this after AEI’s Rick Hess took Core defenders to task for their excesses, then kindly offered some helpful advice on how to at least have an honest conversation. Why didn’t the Fordham folks listen to Rick? Coulda saved me a lot of trouble.
Anyway, four things particularly stick out in Fordham’s piece, published in the Milwaukee Journal Sentinel, though many others are dubious:
- The piece starts off by, essentially, smearing all opponents of the Core as carpet‐bagging liars. The very first line reads: “For some time now, outside groups have been vigorously spreading misinformation about the Common Core state standards.” The goal here is, presumably, to declare opponents devious right off the bat, and compound that by asserting that they are all icky non‐Wisconsinites. Never mind that Finn and Petrilli, to my knowledge, aren’t from the Badger State, and have definitely lived in the Washington, DC, area for years.
- A major complaint of Core supporters is that critics blame things like data‐mining and curricular control on the Core which aren’t, technically, in it. They are intimately connected through Race to the Top and No Child Left Behind waivers, which intentionally place the Core in broader pushes for evaluation, data collection, etc., but no, they aren’t actually in the Core. It is apparently fine, though, to proclaim that the Core by itself “demands accountability, high standards and testing,” as Finn and Petrilli do. The difference, of course, is that Finn and Petrilli favor the Common Core, and the Common Core is great!
- Finn and Petrilli offer a tiny, non‐concession concession to people who have decried the massive federal coercion that drove Core adoption, noting that “many conservatives are justifiably angry about the inappropriate role the Obama administration has played in promoting and taking credit for these standards.” But the thing is, Obama didn’t just promote and take credit for the Common Core. He implemented concrete federal policies that essentially told states that if they didn’t adopt Common Core they couldn’t get part of a $4.35 billion pot of money, and it would be harder to get out of the absurd demands of No Child Left Behind. If Finn and Petrilli want to be forthright, they need to actually write the words “Race to the Top” and “waivers,” and explain exactly what they did. But they don’t even mention them!
- Finally, it is simply wrong to suggest that the Obama administration went all lone wolf on Core supporters. Why? Because, as I have discussed repeatedly, the report Benchmarking for Success, from the groups that created Common Core, came out in 2008 — before there was an Obama administration — and called on the federal government to “incentivize” adoption of common standards. In other words, they wanted the Feds to twist arms all along!
I hate it when Common Core supporters — from Wisconsin, DC, or anywhere else — misinform the public. Especially when their first move is to drop the deceiver card on their opponents.
There’s an interesting convergence in the news this morning, with Kimberley Strassel in the Wall Street Journal and an article in the New York Times tackling President Obama’s trampling of the separation of powers. Strassel is dubbing Obama’s an “imperial presidency,” and while the Times offers a straight news piece about No Child Left Behind waivers, it too features a strong whiff of presidential imperialism:
Congress has tried and failed repeatedly to reauthorize the education law over the past five years because Democrats and Republicans cannot agree on an appropriate role for the federal government in education. And so, in the heat of an election year, the Obama administration has maneuvered around Congress, using the waivers to advance its own education agenda.
It’s easy and fun, of course, to cry imperialism when it’s the other guy’s party in power, and as Strassel points out many on the left employed such condemnation — not without cause — against George W. Bush. But that’s precisely the problem: Liberals and conservatives both shunt aside the Constitution when it serves their purposes, but act shocked — shocked! — when the feds or the president employ unconstitutional power to do things they don’t like.
Well guess what, fickle friends of the Constitution: You all righteously shut down the containment unit. You’re all at fault for the demons running rampant.
There’s no better example of this than education, an area over which no federal authority exists yet politicians of both parties have “helped the children” whenever they’ve felt they could get what they wanted. A heavily Democratic Congress and White House gave us the original Elementary and Secondary Education Act — liberals love spending money on schools — and conservatives decried the wasting of taxpayer dough. With NCLB, a largely Republican Congress and White House escalated federal control — conservatives love being seen as tough guys who impose “accountability” — and many on the left became apoplectic. Now President Obama is handing out NCLB waivers contingent on states adopting his favored reforms, and many on the right are rhetorical constitutionalists again.
Here’s the lesson: The next time the guy you despise does something you don’t like, remember when you’ve looked the other way as the Constitution was shoved in a drawer, or torn up, in pursuit of what you wanted. Remember, and heap blame on yourself, because it is your fault.
For more, click here:
Today the Obama administration will announce, according to early press reports, that ten states (of eleven that applied) will be receiving waivers from key provisions of the No Child Left Behind Act. That's right, the 2002 education law passed by Congress and signed by President Bush that absurdly insisted that all children will be proficient in mathematics and reading by 2014. Now President Obama, unilaterally, is telling states that they can forget all that as long as they adopt -- or at least have "plans" to adopt -- reforms to his liking, such as national curriculum standards and teacher evaluations based on student standardized testing progress.
At this point, it is almost impossible to keep track of the federal savaging of the Constitution in supposed service of education. First there was the federal expenditure of money, allowed by none of the enumerated powers, largely starting in the 1960s. Then there was the growing attachment of controls to that money -- again, with no Constitutional authority -- culminating in NCLB. Now there is the blatant disregard for the separation of powers by a President who just decided he didn't like waiting for Congress to reauthorize the law, and a Congress that exhibits no spine whatsoever when it comes to this power grab because, well, no one seems to like NCLB.
Within this fiasco is all the evidence anyone should need to see why the Feds must be extracted from education. While Washington can drop humongous sacks of taxpayer dough on states and districts, and impose lots of bureaucratic rules and regulations, it can't actually make education much better. Indeed, the whole point of NCLB was to end decades of Washington spending billions for no return. And what happened? Exactly what state, district, and school-level bureaucrats and unions expected: "accountability" swerved off the road before the 2014 deadline. It took longer than expected -- it was a slightly more nerve-wracking game of political chicken than usual -- but in the end the entrenched interests won because they're the most motivated to bring the political pain. After all, their very livelihoods are at stake.
Aside from desegregation -- which it has Constitutional authority to compel -- the federal government has done no meaningful good in education. Why? Because the special interest-driven reality of politics ensures it can't do any good. Yet we not only let it continue to trample the Constitution by meddling in education, we are allowing it to shred the Constitution into ever-smaller bits in order to "fix" the destruction it has wrought. And for this, all who turn a blind eye to the Constitution in the name of "the children" are to blame.
Though few people outside of the Tea Party — especially politicians — have the guts to say it, federal education control like the No Child Left Behind Act is blatantly unconstitutional. Authority over education is not among the federal government’s enumerated powers, and laws like the NCLB — which truly is a wreck driven by what self‐interested politicians thought sounded good—also go far beyond the 14th Amendment’s charge to prohibit discrimination by state and local governments.
But not satisfied to just have Washington fully ensconced in classrooms, this morning the Obama administration officially went to double‐secret violation of the Constitution, adding a brazen dumping of the separation of powers to federal education policy.
This second layer of Constitution‐contempt comes in the form of the administration telling states that they can get waivers from the No Child Left Behind Act — which the NCLB allows — but requiring that they adopt administration‐approved policies to do so. That second part the NCLB does not allow, meaning the president has decided to rewrite the law all by himself — including strong‐arming states to adopt “college and career ready standards,” another step toward federal curriculum standards — even though the Constitution is crystal clear: “All legislative Powers herein granted shall be vested in a Congress of the United States.”
In response to this, will we finally hear the Constitution loudly, constantly, and honestly invoked and defended by members of Congress, especially those in the GOP who don’t have the obstacle of having to defend “their” president? We sure as heck should, but don’t count on it: If they start really defending the Constitution now, think of all the violations they’ve happily perpetrated that someone might notice. No, better to keep up the double‐secret evasion and complain on other grounds, like President Obama is being too “political.” Because no one in Congress — or anywhere else — would ever act based on political motives, such as concluding that “Constitution, shmonstitution, we can’t push to get the Feds completely out of education because people would think we are mean.”
No, political thinking like that would never happen.
There's a lot of consternation over Education Secretary Arne Duncan's threat that if Congress doesn't quickly create and pass a new No Child Left Behind Act he will do it himself, issuing waivers galore for states that adopt as-yet unspecified, administration-dictated reforms. As Andy Rotherham writes in Time, everyone from AEI's Rick Hess, to angry-teachers' hero Diane Ravitch, seems to be outraged over the notion that the executive branch would simply bypass Congress because it thinks the legislators are moving too slowly.
What did they expect when they ignored the Constitution to begin with, forgetting that it gives Washington just a few, enumerated powers, and that meddling in education (save prohibiting discrimination and controlling the District of Columbia) is not among them? When they pushed for, or acquiesced to, Washington doing all sorts of things that it has no constitutional authority to do? When they essentially accepted that the Federal Government has unlimited powers? Did they expect federal politicians to suddenly remember they are supposed to be constrained only when they want to do things the educationists don't like?
Unfortunately, most people in education policy pick and choose when they'll invoke the Constitution based on whether or not they like what the Feds are doing or are proposing to do. In contrast, if in their presence you consistently state that education policymaking is not among Washington's few and defined powers, and that the Feds must get out of education, they typically either ignore you; dismiss you with a rhetorical pat and smile like you are a cute, idealistic child; or condemn you as someone who hates children, the poor, teachers, enlightenment, the nation's economic future, progress, or some combination thereof.
Well here's the reality: Far too many educationists have helped let the dragon out of its cage. They have only themselves to blame when it burns down their village.
In a column about the revolving door between big government and the lobbying world, here’s what the irreplaceable Tim Carney wrote about the waiver process for folks trying to escape the burden of government‐run healthcare.
Congress imposes mandates on other entities, but gives bureaucrats the power to waive those mandates. To get such a waiver, you hire the people who used to administer or who helped craft the policies. So who’s the net winner? The politicians and bureaucrats who craft policies and wield power, because this combination of massive government power and wide bureaucratic discretion creates huge demand for revolving‐door lobbyists. It’s another reason Obama’s legislative agenda, including bailouts, stimulus, ObamaCare, Dodd‐Frank, tobacco regulation, and more, necessarily fosters more corruption and cronyism.
This seemed so familiar that I wondered whether Tim was guilty of plagiarism. But he’s one of the best journalists in DC, so I knew that couldn’t be the case.
Then I realized that there was plagiarism, but the politicians in Washington were the guilty parties. As can be seen in this passage from Atlas Shrugged, the Obama Administration is copying from what Ayn Rand wrote — as dystopian parody — in the 1950s.
Nobody professed to understand the question of the frozen railroad bonds, perhaps, because everybody understood it too well. At first, there had been signs of a panic among the bondholders and of a dangerous indignation among the public. Then, Wesley Mouch had issued another directive, which ruled that people could get their bonds “defrozen” upon a plea of “essential need”: the government would purchase the bonds, if it found proof of the need satisfactory. there were three questions that no one answered or asked: “What constituted proof?” “What constituted need?” “Essential‐to whom?” …One was not supposed to speak about the men who, having been refused, sold their bonds for one‐third of the value to other men who possessed needs which, miraculously, made thirty‐three frozen cents melt into a whole dollar, or about a new profession practiced by bright young boys just out of college, who called themselves “defreezers” and offered their services “to help you draft your application in the proper modern terms.” The boys had friends in Washington.
This isn’t the first time the Obama Administration has inadvertently brought Atlas Shrugged to life. The Administration’s top lawyer already semi‐endorsed “going Galt” when he said people could choose to earn less money to avoid certain Obamacare impositions.
So if you want a glimpse at America’s future, I encourage you to read (or re‐read) the book. Or at least watch the movie.