Two policies of the Obama administration illustrate an axiom: As government expands, its lawfulness contracts. Consider the administration's desire to continue funding UNESCO and to develop a national curriculum for primary and secondary education.
In 1994, Congress stipulated that no U.S. funds shall go to "any affiliated organization" of the U.N. "which grants full membership as a state to any organization or group that does not have the internationally recognized attributes of statehood." Last October, UNESCO (the U.N. Educational, Scientific and Cultural Organization) voted to confer membership on Palestine. Although there are waiver provisions in most laws restricting executive discretion in foreign relations, the 107 national delegations that voted to extend membership to Palestine were told there is no such provision in the pertinent law. The United States immediately cut off funding, which is 22 percent of UNESCO's budget.
But President Barack Obama's 2013 budget seeks $78,968,000 for UNESCO, and says: "The Department of State intends to work with Congress to seek legislation that would provide authority to waive restrictions on paying the U.S. assessed contributions to UNESCO." The administration regards the 18-year-old statute as an evanescent inconvenience -- that Congress will obediently tug its forelock and grant a waiver provision enabling the executive branch to slip the leash of law.
Meanwhile, the Department of Education is pretending that three laws do not mean what they clearly say. This is documented in the Pioneer Institute's report "The Road to a National Curriculum: The Legal Aspects of the Common Core Standards, Race to the Top, and Conditional Waivers" by Robert S. Eitel, Kent D. Talbert and Williamson M. Evers, all former senior officials in the Education Department.
The 1965 Elementary and Secondary Education Act (No Child Left Behind is its ninth iteration), which intruded the federal government into this traditionally state and local responsibility, said "nothing in this act" shall authorize any federal official to "mandate, direct or control" the curricula of a state, local education agency or school. The General Education Provisions Act of 1970, which supposedly controls federal education programs, stipulates that "no provision of any applicable program shall be construed to authorize" any federal agency or official "to exercise any direction, supervision, or control over the curriculum, program of instruction" or selection of "instructional materials" by "any educational institution or school system."
The 1979 law establishing the Education Department forbids it from exercising "any direction, supervision or control over the curriculum" or "program of instruction" of any school or school system. The law as amended goes further: No funds provided to the Education Department "may be used ... to endorse, approve, or sanction any curriculum designed to be used in" grades K through 12.
What authors Eitel, Talbert and Evers call the Education Department's "incremental march down the road to a national curriculum" begins with the Common Core State Standards Initiative (CCSS). It is not an initiative of any state legislature, but of a governors' association, state school officials and some private foundations. This push for a national curriculum advanced when the Race to the Top Fund (part of the 2009 stimulus) said that peer reviewers of applications for money should favor those states that join a majority of states in developing and adopting common standards. The 11 states and the District of Columbia that won Race to the Top funding had adopted or indicated an intention to adopt the CCSS, which will require changes in curricula.
An Education Department synopsis of discussions with members of the public about priorities in competition for Race to the Top money says "the goal of common K-12 standards is to replace the existing patchwork of state standards." Progressives celebrate diversity in everything but thought.
The Obama administration is granting conditional waivers to states chafing under No Child Left Behind's unrealistic accountability requirements. The waivers are contingent on each state adopting certain standards "that are common to a significant number of states," or the state may adopt standards endorsed by its institutions of higher education -- if those standards are consistent with the Education Department's guidelines.
We have been warned. Joseph Califano, secretary of health, education and welfare in the Carter administration, noted that "in its most extreme form, national control of curriculum is a form of national control of ideas."
Here again laws are cobwebs. As government becomes bigger, it becomes more lawless. As the regulatory state's micromanagement of society metastasizes, inconvenient laws are construed -- by those the laws are supposed to restrain -- as porous and permissive, enabling the executive branch to render them nullities.