Of Lawlessness and Temptation
After finishing my lunch this afternoon, I wandered into the neighboring bedroom that houses my suitemate. Unfortunately for his long-term prospects for retaining sanity, he is nearly my equal in political junkiedom, and today he greeted me with a question: “What’s up with No Child Left Behind?”
I was stumped. “Huh?”
“Yeah, apparently Obama issued waivers to a bunch of states or something.”
I pulled out my smartphone and scanned the relevant headline: “First 10 States Granted Waivers From ‘No Child Left Behind.’” My gut reaction was happiness. Like many conservatives, I’ve long opposed the idea that setting up massive new Rube Goldberg-style bureaucracies—let alone federal planning, which keeps decision-making as distant as possible from actual students, teachers, and families—will fix American education. And I frequently point out the hypocrisy of big-government types who support increased centralization but lament, in the same breath, that teachers are forced to “teach to the test” (as if the top-down paradigm weren’t by definition reliant on overly simplistic standards).
Hell, the program’s unpopularity across the political spectrum has made it part of one of my favorite canned ripostes for the past few years: whenever a left-winger bemoans the lack of bipartisan cooperation, I will point out that two of the Bush years’ signature bipartisan initiatives were NCLB and the invasion of Iraq. This usually quiets that particular complaint.
So I was pleased to read today that the Obama administration was beginning to own up to the failure of hyper-centralized education policy. Pleased, that is, until I began to look into the issue closely.
Why hadn’t we heard talk about NCLB waivers before, when the program has been so unpopular for so long? As it turns out, this is conveniently explained by the curious fact that this new waiver program is not part of the actual law, springing instead from the Executive Branch’s imagination in time for an announcement late last summer. And the federal government’s new behavior doesn’t really end with waivers: the states receive an exemption from parts of NCLB, sure—but only if they agree to follow a new and different set of federal instructions.
While actual statute does provide for a limited waiver authority, in the words of the Brookings Institution’s Russ Whitehurst:
It is one thing for an administration to grant waivers to states to respond to unrealistic conditions on the ground or to allow experimentation and innovation…It is quite another thing to grant state waivers conditional on compliance with a particular reform agenda that is dramatically different from existing law. The NCLB waiver authority does not grant the secretary of education the right to impose any conditions he considers appropriate on states seeking waivers, nor is there any history of such a wholesale executive branch rewrite of federal law through use of the waiver authority.
Obama is offering states waivers from NCLB’s top-down, over-centralized education requirements if and only if they agree to comply with a new set of top-down, over-centralized education requirements of his own creation. The President called on Congress to change the law last year, but no reform proved forthcoming—so, unsatisfied that the constitutional process of lawmaking had gotten in the way of his pet project, Obama has decided to make new laws by executive decree.
Set aside the adorable liberal naivete (“I’m feeling really good about this set of rules, guys! We just need to tinker with the bureaucratic machine a little bit more and public schools will morph into palaces!”) and look to the heart of the matter. I submit that any true conservative should be outraged by the President’s egregious abuse of power—outraged to a degree where any policy improvements that we believe may emanate from the unconstitutional modifications should look like small peanuts by comparison. This is what distinguishes true constitutional conservatives from unprincipled progressives on either side of the aisle: ten times out of ten, we will take playing by the rules and losing over winning a policy battle via trampling on the rule of law.
But too many Republicans have bowed to the President, offering praise for the President who loosened the NCLB noose choking their states’ schools. For example, Indiana Governor Mitch Daniels—ordinarily cast as a gutsy wonk, the thinking conservative’s conservative—gushed approvingly that “the waiver will make for a fairer system and one that focuses on what matters most.”
Another among our putative heroes, New Jersey’s own Chris Christie, reportedly “ignored the GOP criticism of Obama and said the approval of New Jersey’s waiver application shows federal endorsement for what he describes as his ‘bold and aggressive education reforms.’”
We must ask more from leading conservatives. Surely it is tempting to endorse unilateral executive action that lessens the crushing burden of big government and frees up outstanding chief executives like Daniels and Christie to implement the reforms their states deserve. But if America is to continue boasting that we are a nation of laws first and men second, then we must stand up for the rule of law and for proper constitutional process whether or not we like the outcome.
For the true constitutional conservative, going about the business of government in the right way will always take precedence over getting what we want out of government. We cannot have it any other way, nor should we want to. And those on the right who cheer Obama’s blatant overreach because it may portend happy consequences must be held to account.
(Edited: typographical error.)
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May '10
Re: Of Lawlessness and Temptation
This really needs to be promoted to the main feed. Thank you!
Re: Of Lawlessness and Temptation
Thanks, Katie!
Feb '12
Re: Of Lawlessness and Temptation
Andrew,
I stumbled upon your post as I was writing this one over on google+ which was in reaction to this fox news article. You are far more eloquent than I and your point about holding the supposed conservative plank-holders accountable is a brilliant connection that I missed. Cheers!
Feb '12
Re: Of Lawlessness and Temptation
This seems more typical of the approach taken by many zoning agencies. I waive this and you give me that. It is also the kind of trouble banks got into when they wanted some regulatory approval, the toll takers show up with their demands for loans, board members, services, grants to community organizations etc.
too typical and corrupting of the republic.