Skip Navigation

Close and don't show again.

Your browser is out of date.

You may not get the full experience here on National Journal.

Please upgrade your browser to any of the following supported browsers:

Bypassing Congress Has Its Limits Bypassing Congress Has Its Limits

This ad will end in seconds
Close X

Want access to this content? Learn More »

Forget Your Password?

Don't have an account? Register »

Reveal Navigation



Bypassing Congress Has Its Limits


Education Secretary Arne Duncan in an interview November 17, 2010, in his office.(Richard A. Bloom)

No one watching the dysfunction of Capitol Hill should be surprised that the Obama administration is resorting to Plan B for tweaking the 2001 No Child Left Behind law. The Education Department is scheduled to announce on Monday that it will use its waiver authority this fall to relieve states from some of the law’s outdated student-achievement benchmarks, provided they meet other requirements.

Republicans have criticized the administration for overstepping its bounds in its use of waivers and other executive actions; environmental rules and immigration policy are just two examples. But lawmakers’ inability to resolve policy differences and produce compromise legislation has left the White House with few other options.


Education Secretary Arne Duncan first warned lawmakers about possible administrative waivers of No Child Left Behind in June. Then, as now, there is no bipartisan solution (or any solution, for that matter) from Congress about how to update the law.

This isn’t the first time the administration has decided to maneuver around Congress’s intransigence. To keep the Federal Aviation Administration afloat until September, the Transportation Department will use its waiver authority to circumvent congressionally ordered cuts to rural airport subsidies. Lawmakers actually relied on that authority to push through a last-minute deal ending a two-week partial shutdown of the FAA. The only way the Senate was able to agree to a House-passed stopgap measure was with the promise of Transportation Secretary Ray LaHood that he would use the waivers to ensure that rural airports wouldn’t be shut down. The deal allowed 4,000 furloughed government employees to go back to work.

President Obama has been unapologetic about pursuing climate-change policies through administrative routes since Congress failed to pass a cap-and-trade bill last year. Yet the Environmental Protection Agency is under fire for its new ozone standard, with Republicans calling for an investigation of the EPA’s management of the review panels that established the standard. It’s not hard to see a lawsuit in the future.


In the case of No Child Left Behind, the administration’s waiver authority can keep qualified states from losing federal money if they fail to meet achievement benchmarks that nobody believes reflect reality. But the Education Department can’t change the benchmarks on its own. House Education and the Workforce Committee ranking member George Miller, D-Calif., who sponsored of the original law, has called for a “comprehensive” education fix, but he reluctantly concurs with the administration’s conclusion that no such thing will be coming from Congress this year. The waivers are a fallback solution at best. “I understand why Secretary Duncan and President Obama feel they need to take action,” he said.

In other areas, the administration can’t do much of anything. On immigration, for example, Obama has repeatedly told immigration-reform advocates that he does not have the authority to waive deportations for illegal immigrants who otherwise are contributing members of society. That takes an act of Congress. Similarly, Homeland Security Secretary Janet Napolitano says she is required to enforce the laws that are on the books, which can translate into harsh treatment for undocumented foreigners that some people view as unfair.

In transportation, the administration’s authority to collect gas taxes that contribute to the highway trust fund will expire on September 30. Lawmakers are far from agreement on a broad reauthorization of the surface-transportation mechanism. The administration doesn’t have waiver authority to collect those taxes without a stopgap extension from Congress.

comments powered by Disqus