Under Obama, federal bureaucrats have really been swinging for the fences with breathtaking new assertions of power. This one, I submit, takes the cake.
The Education Department’s Office for Civil Rights has declared Harvard Law School in violation of Title IX, not for any actions it took, but just for having failed to repeat the agency’s views about the law in a “guidance” letter.
Hans Bader of the Competitive Enterprise Institute, who used to work for the OCR, explains the controversy in this Examiner piece. He writes, “This is an egregious violation of the Administrative Procedure Act. But Harvard has acquiesced in this finding, since the OCR has the power to cut off all of Harvard’s hundreds of millions of dollars in federal funds.”
That point gets at the root of the problem, namely that federal bureaucrats are empowered to spend or withhold money so as to bend universities to their will. Of course, there is no constitutional authority for Congress, much less a bunch of its minions in the bureaucracy, to exercise such power. This gives strong support for the argument that Columbia Law professor Philip Hamburger makes in his book Is Administrative Law Unlawful?
Hamburger argues that the whole of administrative law is unconstitutional. It violates the separation of powers and harkens back to the concept of royal prerogative that the Founders wanted no part of. (For more on Hamburger’s case against administrative law, read my Forbes piece about it.)
The only real solution is to abolish the Department of Education.