Opinion: With the Stroke of a Pen

Day 5: Obama rewrote federal education law as Congress napped

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Congress,Education,Conn Carroll,Barack Obama,George W. Bush,Executive Power Series

Part five of the Washington Examiner's 10-part series "With the Stroke of a Pen: How Obama abuses executive power to make the law of the land."

President George W. Bush’s No Child Left Behind education law was the largest expansion of federal involvement in elementary education since President Johnson’s Elementary and Secondary Education Act of 1965.

And the Bush measure was unpopular from day one.

Conservatives never liked the federal government's encroachment into what they viewed as something best left to the states.

Liberals never liked the law's reliance on standardized testing, which education unions hate because it potentially provides a nonsubjective metric for judging the performance of teachers and administrators.

And just about everybody hated the millions of hours of additional paperwork the law inflicted on school administrators.

NCLB required all public schools to establish Adequate Yearly Progress standards and administer statewide standardized tests to make sure those standards were being met.

About this series

On Nov. 16, 2010, just days after voters gave Republicans control of the House of Representatives, the progressive think tank Center for American Progress published a report titled "The Power of the President."

Obama-Biden Transition Project Chairman John Podesta introduced the report, writing that "in the aftermath of this month's midterm congressional elections, pundits and politicians across the ideological spectrum are focusing on how difficult it will be for President Barack Obama to advance his policy priorities through Congress."

"Some debate whether the administration should tack to the center and compromise with the new House leadership," Podesta continued.

"As a former White House chief of staff, I believe those to be the wrong preoccupations. President Obama's ability to govern the country as chief executive presents an opportunity to demonstrate strength, resolve, and a capacity to get things done," Podesta said.

Not only did Obama almost immediately embrace the report's call for maximizing executive power to achieve progressive ends without Congress, it even branded the effort "We Can't Wait," thus advertising the fact that Obama had abandoned all pretense of following the U.S. Constitution's carefully drawn separation-of-powers doctrine.

In this Washington Examiner series, Senior Writer Conn Carroll documents the many times Obama has flagrantly abused executive authority to advance his liberal agenda without congressional approval.

The top 10 instances will be examined over the next two weeks, and more will come later.

Stories in this series

1. Immigration amnesty by executive memo

2. The employer mandate delay

3. War in Libya

4. The illegal Solyndra contract modification

5. Rewriting federal education law by waiver

6. Unconstitutional NLRB appointees

7. The Yucca Mountain delay

8. Gutting welfare reform

9. The Gulf of Mexico drilling moratorium

10. Regulating the Internet

Each year, a higher and higher percentage of each school district's students had to meet the AYP. So by 2014, 100 percent of all students had to meet each state’s standards for reading and math.

If any school failed to make the statutorily defined standard for two years in a row, then the students at that school would be given an option to transfer to a different school.

If a school continued to fall short of its AYP, it could eventually be closed or turned into a private school. Each year’s failure would bring more and more paperwork and reporting requirements as well.

Congress began trying to change the law in 2007, but Republicans (who want less federal interference in local public schools) could never agree with Democrats (who want more federal interference in local public schools) on how best to rewrite it.

After President Obama was elected in 2008, attention switched from NCLB to Obama’s Race to the Top initiative, which received $4.35 billion in funding under the 2009 economic stimulus.

Where NCLB sought to control schools by cutting off funding, RTTT sought to control them by bribing them with federal grants. Schools that adopted federal Common Core curriculum standards, lifted caps on charter schools and adopted union-approved teacher performance reviews were most likely to be beneficiaries of Obama’s largesse.

But by 2011, Obama’s RTTT-stimulus honey pot had run dry. And more and more school districts were hitting the upper limits of how many of their students they could get to meet their state’s standards.

States were faced with a tough choice: They could either lower their standards so more kids would pass or let the federal government label more of their schools as “failed” under NCLB.

But instead of going to Congress to get NCLB changed, Obama decided to just unilaterally rewrite the law.

On Aug. 5, 2011, Education Secretary Arne Duncan announced he was inviting states to apply for waivers from NCLB, but only if those states could satisfy new criteria. Those criteria just happened to be very similar to Obama’s since-expired RTTT plan.

“The reforms the administration seeks as a condition of granting waivers are the same that it put forward in its Blueprint for reauthorizing NCLB, and that it advanced in its Race to the Top competition,” Brookings Institution Director for Education Policy Russ Whitehurst wrote at the time.

“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," Whitehurst continued.

“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.”

But that is exactly what Obama and Duncan did. To date, 44 states have applied for NCLB waivers from the Obama administration and 34 have been granted. And those grants were not easily obtained.

“There is a huge gap between what the states asked for and what they ended up with,” Michael Petrilli of the Thomas B. Fordham Institute told The Washington Post.

The House of Representatives has since passed a law changing many of NCLB’s draconian federal requirements. But the Senate has not brought the bill for a vote on the Senate floor and Obama has shown no interest in pressuring them to do so.

And why should he? If Obama can rewrite the nation’s education laws without Congress and get away with it, why would he ever ask their opinion on the subject again?

Conn Carroll is a senior editorial writer for the Washington Examiner.

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