- The Washington Times - Monday, March 28, 2011

The Obama administration’s default position always happens to amass more power for big government. An example is the White House’s proposed set of new regulations for higher education.

An ideologically diverse coalition is fighting the Education Department’s draft proposal for higher-ed funding. The new rules would make it harder for students to receive government-backed loans to attend for-profit universities such as Strayer and Phoenix. Conservatives complain the regulations effectively limit private-sector competition, while National Urban League President Marc H. Morial says the rules would predominantly hurt “at-risk students, including minorities, parents and full-time workers.”

Until now, critics mostly questioned the content of the Obama administration’s regulatory choices. On March 24, two former federal education lawyers went farther, questioning the administration’s very authority. Kent D. Talbert and Robert S. Eitel were general counsel and deputy general counsel of the Education Department from 2006-2009. In the latest issue of the Federalist Society’s magazine “Engage,” they argue the O Force “has exceeded statutory authority” and “the plain meaning of the words chosen by Congress.”

Under the old rules, the Education Department must give notice and a hearing to colleges when it wants to terminate or limit their eligibility to participate in federal financial-aid programs. The proposed rules would let bureaucrats withdraw a school’s eligibility without notice or hearing. Similarly, the proposed rules would give bureaucrats authority - again, despite Congress’ intent to the contrary - to block colleges from basing certain employees’ salaries on merit.

Other issues are more technical in nature, but the Talbert-Eitel theme is familiar: The Obama team is claiming powers nowhere specified or allowed by law. The administration claims its politicized bureaucrats can force senior citizens to enroll in Medicare if they want to receive duly earned Social Security benefits. It claims the right to grant “waivers” for politically favored entities to escape Obamacare rules. It claims it can prevent a state from enforcing immigration laws even when the state’s enforcement directly tracks authority granted by Congress. It chooses to selectively enforce laws guaranteeing civil rights. It refuses to defend the Defense of Marriage Act while acknowledging copious precedent in the law’s favor.

The numerous abuses further what Mr. Talbert and Mr. Eitel call an effort to “commandeer … state functions.” These aren’t minor struggles over procedure. In each instance, the Obama administration creates real victims, such as lower-income students who need educational options while working multiple jobs and raising young families. Some change breeds less hope.