If you want to understand how federal education policymaking between the Obama Administration and congressional Republicans will play out over the next two years, just check out the battle over reforming America’s dysfunctional immigration system.
As you already know, the sparring between the administration and congressional Republicans reached a new crescendo last night when President Obama issued an executive order temporarily staying deportation for five million undocumented emigres, many of whom have children who are American citizens by birth. Certainly this has aroused the ire of Republicans, especially those movement conservatives demanding even more restrictions (and red tape) upon the layers of rules already in place. House Speaker John Boehner and other congressional Republican leaders have spent the past two weeks threatening that Obama’s action would be a breakdown of good faith between the two sides that would lead to reprisals from them. This has ranged from plans to pads legislation that they know Obama would veto as soon as it got to his desk, to shutting down all but the most essential federal operations by refusing to pass another of the various continuing resolutions that have passed for what should be sensible budgeting. From where the Republicans sit, Obama has engaged in “lawlessness” because he has supposedly violated the U.S. Constitution, has behaved like an emperor, and, as a result, has “squandered what little credibility” he has left (with Republicans, of course).
Yet Boehner and his colleagues have done little other than bluster on this front. They haven’t even attempted to pass legislation overturning an earlier Obama Administration executive order on immigration, the Deferred Action on Childhood Arrivals, which held off deportation for undocumented immigrant young people brought to the country as kids by their parents, or even filed a lawsuit against the order as they have done today over the administration’s implementation of the Affordable Car Act. Why? Because they don’t have much more they can do other than bluster.
For one, as even legal scholars and immigration experts less-sympathetic to the administration such as Ilya Somin of the Cato Institute and Shikha Dahmia of the Reason Foundation have noted, federal immigration law grants the Obama Administration we latitude in temporarily staying deportations and operating the rest of the immigration system. In fact, Congress (including Republicans now in leadership in the House and Senate) granted that authority in the Immigration Reform and Control Act passed 28 years ago. The fact that earlier administrations, including that of Ronald Reagan and George Bush, have also implemented similar executive orders. Give the law as well as the political, legal, and historical precedents, Obama’s decision is defensible on all possible grounds. That the executive order itself is limited in scope, leaving seven million of the 11.4 million undocumented emigres subject to deportation, is also a factor, as is the reality that the Obama Administration has deported more undocumented emigres than any of his recent predecessors (a matter congressional Republicans and immigration reform opponents fail to acknowledge).
The second reason is purely about long-term politics. Like their Democrat colleagues, Republicans are quite aware of the usefulness of expansive presidential authority in advancing political goals, especially when they don’t control the federal legislature. Having a president retain wide constitutional latitude in administering the executive branch, especially when controlling parties in both houses are gridlocked on key issues, allows for policymaking to continue. Add in the reality for House and Senate Republicans that key constituencies within the party (including the U.S. Chamber of Commerce) want immigration reform, as well as the need to expand the base in the long term to include black and Latino communities (the latter of which is key to the Republicans’ lock on political power in Texas), and the party has little choice but to just bluster and threaten.
Even if congressional Republicans pass legislation (including continuing resolutions) that attempt to stop enforcement of the immigration executive order, they can’t make it stick. Right now, the Republicans only control the House and, thanks to arcane rules, merely have the power to block legislation in the Senate. Even when they take over the Senate in January, they lack veto-proof majorities in both bodies to overcome Obama’s rejection of their legislation. There’s also the fact that Senate Democrats can now leverage the very rules uses Republicans used to block legislation; while Obama’s relationship with Senate Democrats are not much better than that he has with Republicans, his party has to also keep in mind the need to rally their political base in order to keep the White House in their control after 2016.
What you have with immigration reform is stalemate, one that, for all the bluster coming from Boehner and Senate colleague Mitch McConnell, favors the Obama Administration at nearly every turn and, therefore, will be exploited as the president attempts to establish a legacy that can’t so easily be reversed by his immediate successor. This is a reality reformers must keep in mind as they consider what to do on the federal level in these coming days and years.
Certainly one can say that the most-immediate consequences of this month’s election losses by the Democratic National Committee is that the Obama Administration is weaker politically. But that is assuming that Democrat control of the Senate was actually valuable to the administration in the first place. Sure the administration didn’t want the party to lose control; but the history of midterm elections for second-term presidents all but assured that this would be a reality. But given that Senate Democrats had little success in passing legislation other than continuing resolutions that would be acceptable to House Republicans (and that’s when Senate Republicans weren’t blocking every bill they could), Obama is actually no worse than he was before the election.
If anything, one can argue that the Obama Administration is in a stronger position than it was earlier this year. The first reason is that it no longer has to worry about defending vulnerable Senate Democrat seats that were quite likely to be lost because of dissatisfaction among voters over the nation’s continuing economic malaise. Free of the responsibility to keep Senate seats, the administration can do now is forge a path that may be more-helpful to Democrats two years from now when Republicans have to both defend vulnerable seats coming up for re-election and try to recapture the White House. Secondly, thanks to the Constitution, the penchant of Congress to dispense the details of legislation to administrative rule-making (the real vehicle for making laws a reality), the executive authority granted to the Oval Office both through current legislation and legal precedent, and the divisions among Republicans themselves, the Obama Administration has plenty of policymaking tools at its disposal.
These two realities are prominent in the debate over the expansiveness of federal education policymaking — and the future of the federal role in advancing systemic reform that has been embraced by presidents and Congress since Richard Nixon proposed the creation of what became the Institute of Educational Sciences five decades ago.
This hasn’t fully occurred to most reformers, especially those in the Beltway. Some conservative reformers, caught up in irrational exuberance, think that congressional Republicans and the Obama Administration will engage in honest negotiating on a compromise reauthorization of No Child next year. That’s naivete bordering on stupidity. Anyone who has watched how Obama and congressional Republicans have dealt with each other over the past six years know that neither side will deal with each other in good faith.
On one hand, Obama has proven over and over again that he will do whatever is legally and constitutionally possible to go around congressional opposition from Republicans and Democrats alike. The No Child waiver gambit exemplifies this. Obama could have gotten a reauthorization passed as early as 2009,when Democrats controlled both houses. But he didn’t as much because he didn’t want to watering down his reform agenda in order to satisfy the National Education Association and the American Federation of Teachers as because of opposition from congressional Republicans looking to deny him a legislative victory. The waiver gambit, along with administering of the school reform initiatives for which the administration won congressional approval, allows the president to pursue (questionable) policymaking that he favors.
The No Child waiver gambit is reckless policymaking that has weakened systemic reform on the ground. But as Conor Williams of the New America Foundation has noted, it is also a critical aspect of President Obama’s legacy. Defending the waivers, along with Race to the Top, I3, and the School Improvement Grant initiatives, is the single most-important effort the administration must do. Given that proposed reauthorizations of No Child — including the second version of the Student Success Act passed out of the House last year — would gut the waivers as well as No Child itself, Obama has no interest in negotiating.
As for congressional Republicans? They could have passed a new version of No Child that was more amenable to the Obama Administration that still would have accomplished their policy goals. But they haven’t had much interest in doing so. Concerned primarily with grinding down Obama’s agenda and with putting a Republican back into the White House in 2016 as well as looking to please hardcore activists among movement conservatives (including Heritage Foundation’s political action wing), congressional Republicans done everything they can to deny the administration a legislative victory. The emergence of Lamar Alexander as chairman of the Senate Health Education Labor and Pensions Committee will not change these and other dynamics one bit; in fact, the former school reformer, now an apostate from the movement, is as much a problem as the rather Machiavellian John Kline, who chairs the House Education and the Workforce Committee.
There’s also the reality that congressional Republicans are divided among themselves over key educational issues, especially between hardcore movement conservatives who want to cut all federal education subsidies, suburban Republicans who represent districts that benefit just as much from them as those in Democrat districts, and Republicans who embrace No Child as fervently as their allies in the business community. There’s the discord between congressional Republicans and their gubernatorial colleagues who have benefited both from No Child and the waiver gambit (and are also concerned about their political prospects). And never forget that while Kline is the driving force on education legislation, he must still deal with a weakened Boehner, a coauthor of No Child who is not all that interested in eviscerating his handiwork (and has shown occasional willingness to speak honestly to his colleagues when they engage in reckless policymaking).
So a reauthorization of No Child is off the table until at least 2017, when the next president takes office. Until then, the Obama Administration and congressional Republicans will continue sparring over the direction of federal education policy. As with the battle over immigration reform, it is one that plays to the Obama Administration’s advantage. And the administration is already leveraging the opportunity.
Obama and U.S. Secretary of Education Arne Duncan fired the first salvo last week when they unveiled guidance for granting No Child waiver extensions. Because the extensions may last as long as three years, the Obama Administration is essentially moving to institutionalize the gambit and make it difficult for congressional Republicans (or anyone else) to undue it. Certainly the waiver gambit itself is far more legally questionable than the president’s executive order on deportations; the idea that states can ignore federal law is not even close to acceptable. But as with immigration (where the legality of the president’s executive order is firmly established by statute, history, and legal precedent), the Obama Administration can argue that the effort is defensible.
Meanwhile the Obama Administration have already taken steps on other fronts. The move by the Department of Education and the Justice Department earlier this year to issue guidance on ending overuse of harsh school discipline (along with accompanying investigations of districts such as Tupelo, Miss., and Minneapolis), will continue even as congressional Republicans and normally-sensible conservative reformers argue against it. The administration’s effort to address the failure of districts to provide college-preparatory courses (including Advanced Placement classes) to poor and minority kids is also proceeding apace.
The waiver gambit will likely stand because congressional Republicans (along with their Democrat colleagues) will do nothing other than bluster about it. After all, complaining about the waiver gambit is all that congressional Republicans have done since the Obama Administration undertook it three years ago. The easiest solution to ending the waivers was for House Republicans to team up with Senate Democrats and the Obama Administration on a compromise version of No Child reauthorization. As the Center for Education Reform noted last year in its review of the Student Success Act and the competing Senate Democrat plan (which in many ways reflects the No Child waiver gambit), there is little substantial difference between both plans, especially in their adverse consequences for the futures of children. But Kline and his fellow House Republicans never pulled that together mostly because they had no interest in giving Obama anything close to a legislative victory.
There’s another reason why the waiver gambit will likely stand: Because as with immigration reform, congressional Republicans have to think about the political long term. What if they gain the presidency in 2016, but lose control of the Senate to Democrats? As with Obama during the last four years, a Republican president will likely struggle mightily on gaining a legislative victory. This isn’t to say this is so: If former Florida Gov. Jeb Bush, who like his brother, has worked well with Democrats on education, wins the Republican nomination and then the presidency, a compromise on No Child reauthorization may be possible. But given the good-but-not-great odds of Bush winning the nomination, Republicans want to keep their options open. And thanks to the waiver gambit, Obama has offered it to them.
Then there is the fact that congressional Republicans have no ability to make their version of a No Child authorization become law. Because they lack veto-proof majorities in both houses, Obama can veto any version of No Child that isn’t to his liking (that is, keeps the waiver gambit in place), and suffer few consequences. Congressional Republicans can try to cut funding for Race to the Top and other competitive grants through continuing resolutions. But as with Obama on his continued efforts to cut funding for D.C.’s school voucher program, Republicans can be easily forced into finding the dollars for those initiatives. [That even Republicans privately admit finding favor with competitive grants also factors into the equation.] Could Republicans just shut down the federal government? Sure. But given that the last time they did that ended up with the loss of sequestration (which fiscal conservatives such as Grover Norquist lamented because it led to automatic discretionary spending cuts), that won’t happen, either.
This isn’t to say that it is good news for reformers on the federal education policy front. Not at all. For one, as Dropout Nation has documented over the past three years, the No Child waiver gambit has been counterproductive to systemic reform on the ground. One of the consequences: Efforts to eviscerate No Child’s annual testing requirements, which have helped provide families, teachers, school leaders, politicians, and researchers much-needed data on how states and districts help all children succeed. it is quite likely that the Obama Administration will either sign onto congressional legislation ending annual testing or even offer waivers to states allowing them to dispense with it. So reformers must advocate strongly against such a move.
For American Indian and Alaska Native children, the stalemate will also likely mean no action on overhauling the U.S. Bureau of Indian Education. The woeful state of the federally-run school system will remain that way for some time at the expense of kids who have long been subjected to educational genocide. Even worse, given Kline’s penchant for trying to cut Title VI and Title VII funding even amid opposition from fellow Republicans representing Oklahoma and other states with large numbers of Native students, expect a renewed effort; Boehner, who has never been fond of any of it (which, given how poorly those dollars are spent, is somewhat understandable) won’t stand in the way.
The stalemate is also counterproductive to systemic reform because the federal government plays a critical role in sustaining systemic reform on the ground. This includes the Reagan Administration’s publication of A Nation at Risk — which took the work of southern state governors and chambers of commerce and promoted them on a national level — and No Child (which built upon the school accountability regimes of states such as Texas and Florida and gave cover to governors fighting against traditionalists to implement similar efforts). Certainly the more-active federal role in education policymaking is perfect or always an unqualified success. But it is clear that the federal role is crucial to advancing reforms that help all children succeed.
This isn’t to say that reformers should despair. Given that both No Child and the waivers reaffirm the role of state governments in overseeing public education, reformers must work hard in statehouses and in the grassroots to advance systemic reforms. That Election Day also proved to be a qualified boon politically for the movement also offers promise. Even if No Child was reauthorized in its current form, focusing on reform at the state level would still be top priority.
But the stalemate between the Obama Administration and congressional Republicans will continue. And not for the good of our children.
Featured photo courtesy of Harvard Business Review.