Senator Marco Rubio (R–FL) urged Education Secretary Arne Duncan to remember the constitutional limitations placed on the executive branch in a letter to the Department of Education Tuesday.
What prompted Rubio to express his concerns is the Obama Administration’s intention to, on the one hand, grant waivers to states for the onerous provisions of No Child Left Behind (NCLB) while, on the other hand, tying them to even more onerous centralized policy:
Our principal concern is that the Executive branch does not possess the authority to force states into compliance with administration-backed reforms instituted through the issuance of waivers. We acknowledge that NCLB allows the Secretary to grant waivers for existing provisions under the law, but nowhere does the law authorize waivers in exchange for the adoption of administration-preferred policies. This initiative is an overstep of authority that undermines existing law, and violates the constitutional separation of powers. The responsibility for legislating lies with Congress, and forcing policy reforms through NCLB waivers violates this most basic of constitutional structures [emphasis added].
The Senator is right to be concerned. President Obama has been unhappy with the pace at which NCLB reauthorization is taking place. The President wanted the 600-page, $25 billion bill reauthorized before the start of this school year. Congressional conservatives have argued against such massive bills on rushed timelines that don’t allow appropriate legislative and popular debate on policies so fundamental as the direction of local schools. When the reauthorization didn’t happen on his timeline, Obama decided that conditions-based waivers would do the job.
We’ve seen this movie before, and we know how it ends: The Obama Administration is pushing its policy preferences on the American people by executive fiat instead of through the normal legislative process. It’s a process that’s rushed and opaque, and it skirts constitutional checks and balances.
Rubio is also concerned with the Obama Administration’s push for national standards and tests:
I am concerned that the administration’s requirements for granting a waiver from NCLB would entail states having to adopt a federally-approved “college and career ready” curriculum: either the national Common Core curriculum standards, or another federally-approved equivalent…. Such activities are unacceptable; they violate three existing laws: NCLB, the Department of Education Organization Act, and the General Education Provisions Act. All three laws prohibit the federal government from creating or prescribing national curriculum. If you believe that conditional waivers tied to content standards do not violate these laws, I invite you to explain the reasoning underlying that belief.
Duncan had chided members for “congressional inaction,” citing this inaction as the rationale for extending conditions-based waivers to states. But the House Education and the Workforce Committee has already produced a package of bills as an alternative to a wholesale, ninth reauthorization of NCLB.
Moreover, conservative alternatives to NCLB (such as the A-PLUS approach) would allow states to completely opt out of the many federal programs under NCLB and use dollars in a way that best meets student needs.
So Duncan isn’t concerned with “congressional inaction.” He’s unhappy with congressional action that doesn’t further grow Washington’s role in education.
In his closing, Rubio implores Duncan to give “due consideration…to options that have been advanced through Congress and provide genuine flexibility to states, so that state and local lawmakers—those closest to children and families can focus on high-quality education policies that will benefit our nation’s children.”