“Congress hasn’t been able to do it, so I will.” With this bold statement, President Obama announced last Friday that he would unilaterally replace the provisions of the No Child Left Behind Act (NCLB) with conditions-based waivers. Obama’s waiver strategy is an alarming misuse of executive power that undermines the separation of powers.
In and of itself, the use of waivers is not unconstitutional. Congress has the authority to create laws with provisions that allow the President to grant exceptions in certain circumstances. NCLB does, for instance, authorize the Secretary of Education to grant waivers to applicants that meet certain criteria. However, waivers are not written as blank checks of authority for the President to bypass Congress and enact new policy.
In this case, the President is using waivers to rewrite the law. The Obama waivers go far beyond the measures allowed by NCLB. To receive a waiver, states must agree to implement a new set of goals and programs determined not by Congress, but by the White House.
For months, President Obama and Congressional Republicans have disagreed on how to reform NCLB. There are major problems with the law’s intrusive regulations. But the Obama administration decided that the “do-nothing Congress” could not be trusted to act and so the President is acting without them.
But co-opting the waiver power to craft a new laws designed in and implemented by the White House is a departure from the constitutional separation of powers.
Article 1, Section 8 of the Constitution grants Congress the power to craft the nation’s laws and to reform those laws when they do not work as planned. The executive is authorized to carry out the laws passed by Congress. But this can be quite bothersome for a President if Congress doesn’t see things his way.
The President does have a proper constitutional role to play in the legislative process. The President has the power to veto or sign a bill. Furthermore, as permitted by the recommendation clause of Article 1, Section 3, the President may recommend legislation to Congress. This is does not mean that the President can unilaterally create law as if by royal edict. To become law, legislation (even when recommended by the President) must first pass both houses of Congress and be signed by the President. This process ensures that any law will be subject to deliberation by both the nationally elected President and the Congressmen who are more attuned to the particular interests and concerns of the local communities they represent.
Both congressional Republicans and president Obama acknowledge that NCLB is a flawed law. While it may be tempting to seek a quick fix to this sprawling and unpopular program that avoids a partisan battle, misusing waivers to enact new policy without the consent of the elected representatives in Congress is not the way to address the issue.