On July 27, the Wall Street Journal published an op-ed by former Reagan and George H.W. Bush officials, David B. Rivkin Jr. and Lee A. Casey, which accused President Obama of a “pattern of lawlessness” behind the administration's recent actions on welfare reform, immigration, and education policy, “designed to appeal to the president's liberal base.” The op-ed did not note that these actions -- described by the authors as “tak[ing] a hatchet” to the relevant laws -- were authorized by Congress or consistent with long-standing bipartisan practice and precedent.

Welfare Reform Waivers Were Requested To Improve Work Requirements

Rivkin and Casey accused the administration of “unilaterally gutt[ing]” welfare reform, repeating a right-wing media refrain begun immediately after the administration announced it would allow state flexibility for work requirement documentation processes under Temporary Assistance for Needy Families (TANF). Not only is the administration not “waiv[ing] the central tenet of the Clinton welfare-reform law -- the requirements that recipients work or prepare (through approved education or training) to do so,” as charged in the op-ed, the administration has explicitly pointed out that waivers will only be granted to proposals that "move at least 20% more people from welfare to work."

Furthermore, although the WSJ op-ed blamed “progressives” for not accepting the principle of work requirements, it did not mention that the immediate waivers requested were put forth by the current Republican governors of Utah and Nevada. The op-ed also failed to inform that the waivers currently under contemplation in response to Republican requests are reported to be less significant than those requested by notable Republican figures in 2005, including Governor Rick Perry, Governor Tim Pawlenty, Governor Jeb Bush, Governor Haley Barbour, and critics of the current waiver proposal Mitt Romney and Mike Huckabee.

Immigration Prosecutorial Discretion is Decades-OId and Was Extensively Used By Bush

Repeating the criticism of columnist Charles Krauthammer, along with other conservative commentators, Rivkin and Casey claimed that the administration's recent policy of "deferred action" in regards to the deportation of undocumented youth is “blatantly at odds with the existing immigration laws, which provide for no such exemptions from deportation.” But this discretionary immigration policy was not only also practiced by George W. Bush, it has been in practice for over 30 years as a non-controversial authority common to all law enforcement agencies, according to the American Immigration Lawyers Association:

Prosecutorial discretion is the authority of an agency charged with enforcing a law to decide whether to enforce, or not to enforce, the law against someone. The exercise of discretion is central to American law enforcement and upholding the rule of law. All law enforcement agencies, including those that enforce immigration laws, have the authority to decide who within their jurisdictions to investigate, arrest, detain charge, and prosecute. When it comes to immigration law, the exercise of prosecutorial discretion not only conserves limited enforcement resources, but also protects core American values of humanitarianism and fairness. [American Immigration Lawyers Association, 5/16/11]

No Child Left Behind Is “Loathed” on a Bipartisan Basis and Explicitly Allows Waivers

Finally, Rivkin and Casey take aim at the administration's decision to issue waivers for No Child Left Behind (NCLB) requirements by asserting that the law “does not provide for such waivers.” But as has been noted by the conservative American Enterprise Institute, NCLB “is the name for the current reauthorization of the Elementary and Secondary Education Act (ESEA), a statute passed by the United States Congress that has established federal education policy since 1965” and:

[S]ection 9401 of ESEA clearly gives the secretary of education the authority to waive NCLB's accountability provisions, the widely loathed adequate yearly progress (AYP) metric. Specifically, the law requires states to explain how a proposed waiver would “increase the quality of instruction [and] improve the academic achievement of students” and to “describe, for each school year, specific, measurable educational goals . . . that would be affected by the waiver and the methods to be used to measure annually such progress for meeting such goals and outcomes.” [American Enterprise Institute, 3/8/12]

This analysis of the authority of the administration to issue waivers in this area was repeated in a Congressional Research Service report drafted at the request of Congressional Republicans, and Martha Derthick, Professor Emerita of government at the University of Virginia, points out that waivers are part of law-making across policy areas, repeatedly “upheld in court”:

Waivers began to make a significant appearance in public policymaking in the 1980s and 1990s, when they were the precursors of welfare reform and the instruments for major revisions of Medicaid. These waivers had a foundation in law, and after a great deal of experimentation and intergovernmental negotiation conducted by executive officials in the two levels of government, they resulted in new law...Perhaps to its credit, Congress recognizes with waiver provisions the limitations of its own ability to tailor national laws to the needs of a huge, diverse, and constantly changing society. For it to include waiver authority in law is just a realistic acknowledgment that it is in over its head. [EducationNext, Spring 2012]

Thirty-three states across the political spectrum have received NCLB waivers at this point, and the opposition to both the waivers and NCLB is bipartisan, contrary to Rivkin and Casey's insinuation that the goal is to curry favor with  “teachers unions across the nation -- a key Democratic constituency for November.” As AEI noted:

Randi Weingarten, the influential president of the American Federation of Teachers, says parts of the all-or-nothing waiver package give her “cause for concern.” Similarly, Governor Jerry Brown of California would no doubt like to see NCLB-related mandates lifted, but at the moment seems intent on submitting a waiver request that will not meet any of the administration's conditions. [American Enterprise Institute, 3/8/12]