Congress writes the laws, as every boy and girl learns in school, and the president enforces them. But what's the point of this fundamental constitutional process if the executive thinks he or she can simply make up the law as he or she goes along?
President Obama has done this many times. He unilaterally rewrote his own signature law, Obamacare, by fiat on several occasions to make it less unworkable. He exploited obsolete portions of the old No Child Left Behind law to extort concessions from states whom he wanted to adopt other favored policies. Want a waiver from this impossible-to-meet requirement? Just sign your state up for Common Core.
History is repeating itself again, once more in the area of education. Last year, Congress went to considerable trouble crafting and passing a consensus bill to replace the outdated and therefore unworkable No Child Left Behind. President Obama signed it at Christmas time, hailing the bipartisan bill as a miracle.
One of the bill's goals was to reduce federal meddling in education, which remains a state and local issue. But Obama is ignoring the law that the president signed, and is attempting instead to write implementation rules that claim powers specifically forbidden in the statutory language.
"Already we are seeing disturbing evidence of an Education Department that is ignoring the law that each of this committee's 22 members worked so hard to craft," Sen. Lamar Alexander, R-Tenn., chairman of the Health, Education, Labor and Pensions Committee, said recently in frustration. "This is the very first opportunity the administration has to write regulations on the Every Student Succeeds Act. In my view, they earned an 'F.'"
Alexander, never known as a partisan bombthrower, has also referred to the Education Department's behavior in this matter as "brazen, deceitful, dishonest and unprofessional." He is outraged because the law he passed states specifically that the feds may not use it to "mandate equalized spending per pupil for a state, local educational agency or school."
But that's exactly what the Education Department is trying to mandate now.
Alexander said last week that when he confronted the department, "they responded with a lot of gobbledy-gook." This week, he confronted Education Secretary John King in a hearing, telling him, "The plain fact of the matter is that the law specifically says you cannot do it."
For the record, the non-partisan Congressional Research Service has weighed in on Alexander's side of the argument: "It seems that a legal argument could be raised that [the Education Department] exceeded its statutory authority," CRS opined earlier this month.
Alexander, speaking at The Atlantic's Education Summit on May 17, added that it might be "a good idea" to equalize funding throughout a state or local school district, but this would have to be a decision made at the state or local level.
"We said in December, in the law the president signed, that the federal government may not require equalized spending," he said. "Yet the department precisely did that in its rule."
King and the Education Department face political pressure to implement the law in a particular way. Their problem is that this is a nation of laws. When executives want new powers, they cannot simply claim them. They need Congress to approve them.
Obama stands on the shoulders of his predecessors in ignoring Congress. He has said his agenda "can't wait" for the legislature to act — "my ideas are so great, let the Constitution go hang" — and even asserted unsuccessfully before the Supreme Court that he had a right to determine the rules of the Senate.
His arrogation of powers consitutionally denied to the executive is a wonder to behold — like a train wreck.