NCLB Waivers Are Unconstitutional

In the fall last year, I had first raised the question of whether the No Child Left Behind (NCLB) waiver process was being constitutionally and legally implemented.  I was initially skeptical, but backed off a little based on the analysis laid out by David Barron and Todd Rakoff in their article, In Defense of Big Waiver, 113 Columbia L. Rev. 265 (2013).  They make a compelling argument for "Big Waiver" and conditional waivers.  Their argument, however, persuasively answers the question of whether conditional waivers can be constitutional, not whether the conditions placed on NCLB waivers are, in fact, constitutional. I have been analyzing and pondering this question for the past eight months. Based on spending clause, delegation, and statutory interpretation doctrines, the conditions that Arne Duncan imposed on states in exchange for waivers are beyond the scope of his statutory authority and unconstitutional.  You can download my full analysis here.