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Repeal the Negotiated Rulemaking Act

January 24, 2017

Trump Transition Teams have been directed to submit lists of regulations that can be repealed by Executive Order. As I indicated in this essay, there are about 13 ways to reform higher education, but every one of these reforms requires changes in policies, rooted in law, that permits promulgation of regulations without Congressional consent.

At the U.S. Department of Education, for example, regulations that were designed by Robert Shireman were promulgated by using a “Negotiated Rulemaking” process made into law in 1990. The folks at the Education Department in the Obama Administration used this process to institute radical innovations in higher education. That was accomplished without seeking Congressional approval by using a procedure that permits the promulgation of regulations that ought to be the province of  Congress. In other words, the Obama Administration’s use of Negotiated Rulemaking established the U.S. Department of Education as a counter legislature.

The Trump Transition Team for Education is staffed by persons who supported that process, oversaw its use, and were complicit in accelerating the growth of federal control of higher education. Some were responsible for implementing “W’s” and Spellings’ “No Child Left Behind” program, and the Team’s leader made the trains run on time in the early days of the Obama Administration. Another defends Common Core which President Trump opposes. In other words, the composition of that Team is not consistent with Trump’s education policies.

How can something like that happen? It appears that the nomination of Betsy DeVos, a nominee with no prior government experience, raised alarms that necessitated inserting “professionals” with “experience” in government and especially the U.S. Department of Education.

There are many policy professionals who know as much or more at think tanks like the Pioneer Institute in Boston and the Thomas B. Fordham Institute in Washington, DC.  But, apparently, the person or persons selecting participants for the Education Transition Team were more familiar with persons who served in the U.S. Department of Education under President George W. Bush. At a time when higher education in a Trump Administration needs professionals who have been critical of education policies of our two most recent Presidents, President Trump gave decisive control of Education appointments to holdovers from the era of Margaret Spellings.

Can this be rectified? Or will higher education reform be set back throughout President Trump’s terms of office? Probably not, but the Trump Administration can repeal the Negotiated Rulemaking Act of 1990.

 

 

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