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The Supreme Court Just Slashed the Odds on ESEA Reauthorization

NCLB is closer to being rewritten than it's been any time since the law was passed in 2001. The Every Child Achieves Act will go to the Senate floor in a week and is likely to pass with a healthy majority. Meanwhile, HR5 is awaiting a vote on the House floor. Both bills would represent a big improvement on current law—and a massive improvement over the Obama administration's current waiverocracy. So, why do I put the odds of final passage at no better than 1-in-5, and why do I think that the Supreme Court just slashed them?

Remember, Republicans hold healthy majorities in both the House and Senate. Both the House and Senate bills should hold a particular appeal for conservatives: they would reduce Uncle Sam's role in schooling, put an end to federal micromanagement of accountability systems and school improvement, go further to try to keep Washington out of state standards, and end Obama's lawless "NCLB waivers." But the bills would not get the federal government as far out of K-12 as conservatives would like. Meanwhile, they include lots of convoluted provisions, including more than a few that might be bent out of shape by a Secretary of Education eager to do so. This is why the House's HR5 has struggled. After all, the bulk of the House GOP caucus didn't run for Congress to fine-tune federal education policy—they ran to rein in Uncle Sam. And, while the Senate will prove an easier lift for ESEA, there are a number of key Republican senators (Rubio, Cruz, Paul, Lee, et al.) of whom the same is true. 

Such concerns make it tough to see how one gets reauthorization through the heavily Republican House. While the fears that have hobbled HR5 in the House tend to get dismissed by mainstream education advocates, they're understandable in the age of Obama. After all, this is a president who has granted himself the right to unilaterally ignore or rewrite statute relating to immigration, health care, education ... well, pretty much whatever he's felt like.

The ESEA bills only hold their appeal for Republicans if they trust that the law would actually rein in the federal government as promised. This means that they need to trust that the law says what they'd like it to say, and then that the law would be applied accordingly. After all, half a loaf is only appealing if you actually think you'll get your half. For a huge number of conservatives, last week's Supreme Court decision in King v. Burwell (especially in concert with its decisions on gay marriage and disparate impact) pretty much finished kicking the legs out from under that presumption. An increasing number of conservatives, with much justification, now see themselves in a death match with executive and judicial branches that will disregard statute when given even an inkling of an opening.

How do conservatives see things after last week? Here's Justice Scalia in his scathing dissent: "Words no longer have meaning if an Exchange that is not established by a State is 'established by the State' ... Under all the usual rules of interpretation, in short, the Government should lose this case. But ... the Court's decision reflects the philosophy that judges should endure whatever interpretive distortions it takes in order to correct a supposed flaw in the statutory machinery." He continued, "More importantly, the Court forgets that ours is a government of laws and not of men. This Court 'has no roving license ... to disregard clear language simply on the view that ... Congress 'must have intended' something broader."

National Review's Kevin Williamson opined, "The Supreme Court has firmly established that it does not matter what the law says or does not say... [Rule of law] would be a good idea, at least an interesting experiment. For the moment, though, there's only power, the men who have it, and the things they do with it." Andrew McCarthy, an influential conservative legal pundit, argued, "For all the non-stop commentary, one detail goes nearly unmentioned—the omission that best explains [the frustration]. Did you notice that there was not an iota of speculation about how the four Progressive justices would vote? There was never a shadow of a doubt ... And it is not so much that they move in lockstep. It is that no one expects them to do anything but move in lockstep." 

Conservatives survey the Court and a possible Clinton victory in 2016 and worry that statutory compromises will prove a frail bulwark against the whims of a post-Obama president and the preferences of her potential Court appointees. That's the lesson that many conservatives take from seven years of Obama and a putatively conservative Supreme Court. A broad swath of the right is increasingly inclined to conclude that there's no point in compromising with the progressive state—that even attractive compromises will prove tantamount to defeat by the time the executive and judicial branches get through with things, so they may as well hold for total victory (however unlikely).

This kind of resignation promises doleful consequences. One of the more modest and immediate, for those involved in K-12 schooling, is that many congressional Republicans may decide that "kooky" fears about this or that provision in an ESEA reauth aren't all that kooky after all.

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The opinions expressed in Rick Hess Straight Up are strictly those of the author(s) and do not reflect the opinions or endorsement of Editorial Projects in Education, or any of its publications.

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