Rick Hess of the conservative American Enterprise Institute wrote a hard-hitting and sensible column critical of Arne Duncan’s NCLB waivers. The column is especially pertinent in light of Duncan’s decision to withdraw his waiver from Washington State for daring to defy his will. Duncan will punish the state of Washington because it failed to adopt a way of using test scores to evaluate teachers, a practice that has been scorned by major scholarly organizations and that has no evidence to demonstrate its efficacy.

Hess argues, rightly in my judgment, that the Secretary of Education should not be allowed to make up any law or sanction or demand that he wants without Congressional authorization.

As he points out, No Child Left Behind is the law of the land. It is a failed law, and it should be fixed.

But when the Democrats controlled Congress, they made no attempt to rewrite NCLB.

And Duncan could have tried. He could have tried in 2009 and 2010, when the Democrats had hefty majorities in the House and Senate. He didn’t. Partly because he and his team were having so much fun with make-it-up-as-you-go projects like Race to the Top and School Improvement Grants, cases where a Democratic Congress had given him carte blanche to do pretty much whatever he felt like. Duncan clearly found that more engaging than the dreary business of negotiating with Congress.

Heck, the administration took more than a year to even offer its sketchy “ESEA blueprint” and those big Democratic majorities never moved a bill out of committee. In 2011, 2012, or 2013, Duncan could have worked to pass a bipartisan bill. In fact, last summer, the House passed an ESEA reauthorization (the Student Success Act) that I think is pretty terrific.

Instead, Duncan opted to gut NCLB by waiving key parts of the law for states that promised to do stuff he likes; his problem is that he has no authority to enforce the whims that he’s substituted for statute. If you read Duncan’s letter yanking Washington’s waiver, the casus belli was the failure of the state’s legislature to pass a law Duncan had demanded. However, Duncan has no legal basis to give orders to Washington’s legislature (nowhere does NCLB empower Duncan to tell states how to design teacher evaluation).

Duncan’s behavior has been, quite literally, lawless. The first time that Washington refused to do as commanded, as Duncan’s letter notes, he felt free to nonetheless extend its waiver. This time he didn’t. Of course, it’s a safe bet that every state is currently violating some part of its waiver. And those states which have dropped PARCC or SBAC are massively in violation of their waivers (after all, for good or ill, NCLB actually does give the feds some say-so on state tests–so these states are lying about stuff actually related to the law). Yet Duncan, presumably trying to avoid doing further gross damage to the Common Core cause, seems inclined to turn a blind eye.

Hess has a note of caution for those who like Duncan’s waivers:

First, those cheering Duncan now might feel differently about this approach to mandating reform if Rand Paul’s Secretary of Education decides to suspend NCLB for states that offer school vouchers–or if Hillary Clinton’s does for states that require all teachers to have an ed school degree. The thing about ignoring the rule of law and making-it-up-on-the-fly is that it’s only fun when you like the outcome.

Second, if something is imposed on a whim, it can be reversed on a whim. The next Secretary can readily wipe away those old waiver conditions and issue new ones. The last things schools need is more instability and policy churn.

Third, bypassing the legislature may be fun but it avoids the need to forge consensus or build support. Laws that have been passed by Congress have muscle, funding, and legitimacy. Duncan’s freelancing does not.

Fourth, the federal government doesn’t run schools. It can tell states to make schools do things, but it can’t make them do them well. That’s a general caution for those who would “reform” schools from Washington. (It’s why I can agree with the administration on a number of big ideas and still stridently oppose their efforts to promote them.) This caution applies many times over when operating without the kind of broad support, concrete carrots, and statutory sticks that only legislative sanction can provide.