The Secretary of Education’s authority to undo law and regulation in No Child Left Behind is not as broad as a recent story in the New York Times seems to imply, citing a letter the secretary sent to reporters. It is limited to the granting of waivers for which states must apply. While the authority to grant waivers is very broad, it doesn’t extend to making new law.
That said, I think we may be heading into new territory in the use of waivers. By now they have a moderately long history that was well summarized in an essay by Tom Gais and Jim Fossett, “Federalism and the Executive Branch,” in Joel Aberbach and Mark Peterson, eds., The Executive Branch (Oxford, 2005). Waivers have typically been used for adaptation to variation among states, which bedevils American public administration, and to encourage policy innovations sought by incumbent administrations. With NCLB, they begin to approach a way of undoing, at its core, an ill-conceived, unworkable law. Secretary Duncan—and a dilatory Congress, unable so far to rewrite the law–have me poised on the edge of my chair.
– Martha Derthick