This paper assesses the Department of Education’s new regulations concerning Title IV in the Higher Education Act on several levels. As always, The Federalist Society takes no position on particular legal or public policy initiatives. Any expressions of opinion are those of the author or authors. The Federalist Society seeks to foster further discussion and debate about the Department’s new regulations. To this end, we are in the process of inviting responses to these materials. For alternative views, readers might want to consult resources from the New America Foundation, the Center for American Progress, and the Department of Education. To join the debate, you can e-mail us at firstname.lastname@example.org.
Rulemaking is often difficult, requiring close attention to the language of statutes that are sometimes poorly drafted with little or no legislative history; however, this is not the case with the substantial misrepresentation, incentive compensation payment, and state authorization provisions of the Health Education Act (HEA). The Final Regulations remain vulnerable due to an expansive reading of the HEA by the Executive Branch. Critics assert that the promising discussion in the spring of 2009 on ways to develop rules to guide institutions through the requirements of the HEA has changed into a debate in which both reluctant foes and erstwhile allies of the Administration have found common cause to oppose many of the more controversial elements of the Final Regulations. The Department’s recent attempt to use informal guidance to clarify language that contradicts the HEA only underscores their defective nature. A strong case exists that the Department should rescind the regulations and that it should begin the rulemaking anew.