In one of the earliest attempts at modifying the enforcement of laws he disagreed with, President Obama issued waivers for states that did not comply with No Child Left Behind. However, these waivers came with conditions found nowhere in the statute. As Jon Adler explained in 2011:
The NCLB Act allows for waivers of statutory and regulatory requirements placed on state recipients of federal education funds in Section 9401. This provision identifies things a state must do to be eligible for a waiver, including showings a state must make, but it does not impose any of the conditions detailed in the Department of Education’s announcement. For example, Section 9401 requires a state to explain how the waiver will enable the state to ” increase the quality of instruction for students” and “improve the academic achievement of students,” but the Department of Education’s new requirements seem to go much farther than this. Moreover, nothing in Section 9401 appears to authorize the Secretary of Education from setting additional conditions on waiver requests.
Today, Politico reports that the Republicans are looking to overhaul NCLB, but notes the President may veto it.
The president may be hard-pressed to veto even a very conservative bill, though the administration has signaled in the past it will take a hard line when it comes to preserving annual tests and other provisions that focus on equal access to education in NCLB. The Obama administration ushered in what has been labeled a dismantling of the law by giving states huge leeway on some of its key provisions, but the so-called waiver policy is unpopular in the states in no small part because it helped encourage the proliferation of the Common Core standards.
The President’s waivers, which have “been labeled a dismantling of the law,” may be preferred to an actual Congressional change Specifically, the waivers allowed the President to remake the law in his own image:
By the time the 2012 elections moved into full swing, the Obama administration was issuing waivers to states exempting them from the most punitive parts of NCLB in exchange for sketching out their own state plans for improving teacher quality, academic standards and creating better accountability systems.
There you have it. Interestingly, an education wonk dubbed the waivers a “pressure valve.”
“The waivers opened a pressure valve” that allowed members of Congress to delay rewriting the law, said Noelle Ellerson, associate executive director at AASA, the School Superintendents Association. Waiver provisions could stretch into the next administration.
The Solicitor General famously referred to the President’s illegal recess appointments at issue in Noel Canning as a “safety valve” for gridlock. This quotation similarly views unlawful executive power as a way around Congress’s unwillingness to reform an education law that is not working. But, you know, democracy is so “messy and complicated.”