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On Monday, the Supreme Court allowed the Trump administration to move forward with its abolition of the Education Department by firing about 1,400 employees. Many of these workers performed critical tasks at the agency, distributing billions of dollars to schools and students while protecting civil rights and disability access in education. Much of that work will now grind to a halt. By law, the president has no authority to unilaterally restructure or dismantle a federal agency, like the Education Department, created and funded by Congress. The high court’s conservatives allowed Donald Trump to do it anyway. They did not bother to provide a reason for their order. All three liberals dissented.
Monday’s decision in McMahon v. New York represents the court’s latest intervention on the administration’s behalf over its shadow docket, an act that has grown almost routine. The conservative supermajority has consistently exploited this process to hand Trump an unprecedented amount of power, usually without a word of explanation. But McMahon is arguably more radical than those past rulings. SCOTUS has now, in effect, allowed the president to destroy an entire agency by himself, an action that would’ve been unthinkable for most of history. The conservative justices are accelerating this administration’s lawless seizure of duties and prerogatives that the Constitution expressly assigned to Congress. They are doing so after sharply limiting President Joe Biden’s power to carry out responsibilities that are assigned to the president.
This split screen reveals an unseemly double standard: A Republican president gets to do pretty much whatever he wants, while a Democratic president must be constantly boxed in by the courts. And what is the basis for this discrepancy? Thanks to the shadow docket, the conservative justices don’t even have to come up with one. Perhaps they refuse to justify these decisions in writing for the simple reason that they are unjustifiable.
McMahon is the latest proof that Trump is on an extraordinary winning spree at the Supreme Court. As Georgetown Law professor Steve Vladeck explained on Monday, the court has granted relief to the Trump administration in 100 percent of the 15 emergency applications it has filed since April. (It offered majority opinions in just three of those cases.) Just last week, SCOTUS allowed the government to begin implementing a mass-firing plan across many different agencies. Now it has rubber-stamped a more targeted attack on the Education Department, one with devastating consequences for millions of student across the country.
The administration has not kept its goals a secret. On the campaign trail, Trump promised to disband the department, calling it a “big con job.” His education secretary, Linda McMahon, promised to “put herself out of a job” by leading her department’s “final mission”—that is, shutting it down. In March, the president issued an executive order directing the agency’s closure; McMahon promptly announced that she would lay off more than 50 percent of its staff, calling it the first step toward a “total shutdown.” A group of plaintiffs—blue states, schools, and unions—filed suit, arguing that Trump and McMahon had no legal authority to demolish a whole federal department. The lower courts agreed and blocked the termination of more than 1,400 employees.
Now SCOTUS has lifted that block, allowing the president to resume dismembering the agency. As Justice Sonia Sotomayor noted in a furious dissent joined by the other two liberals, the impact will be swift and calamitous. Trump’s purge will shut down many offices within the agency and slow the work of others to a crawl. An office that oversees grants under the Individuals With Disabilities Education Act, which funds special education for 7 million students? Gutted. Another office that helps schools comply with IDEA requirements? Destroyed. An office that administers bilingual education programs? Gone. An office that certifies schools whose students are eligible for financial aid? Hollowed out. Most regional divisions of the Office for Civil Rights—which investigates and adjudicates violations of students’ rights—will be shuttered. Departments that distribute billions of dollars to public schools and universities have been reduced to a handful of employees. Educational institutions around the United States are about to see massive delays in essential funding because there are just not enough employees left to keep the money flowing.
The Constitution does not allow for any of this. To the contrary, it empowers Congress to create and structure federal agencies like the Education Department, and it hands Congress control over staffing and budget decisions. The Constitution then instructs the president to “faithfully execute” the laws enacted by Congress. And Congress has not defunded or eliminated the Education Department. It has laid out procedures through which the president can seek congressional approval to withhold funds, transfer offices, or undertake a large reduction in force. But Trump has followed none of these rules. He has, instead, purported to assert his own executive authority to tear down an agency without the assent of Congress, eviscerating its ability to operate as intended by purging its workforce.
And the Supreme Court has just let it happen, for reasons it did not see fit to share with the public. The result, as Vox’s Ian Millhiser has observed, is a fundamental alteration of the balance of power between the president and Congress, awarding Trump authority to repeal duly enacted federal laws. It would be a mistake, though, to assume that the court will extend this new arrangement to all presidents, given that it frequently deprived Biden of the authority to carry out duties plainly assigned to him by the Constitution and Congress. The conservative justices, for instance, allowed a lower court to impose a universal injunction against Biden’s student loan plan for months. It then declared the plan unlawful, in part because mass debt relief was a “major question” reserved to Congress. Now, not even six months into Trump’s second term, these same justices have abolished universal injunctions and decided that the Education Department’s termination is not a major question reserved to Congress. Could anyone really defend this partisan hypocrisy with a straight face?
The pattern emerging here could not be more disturbing. First, the conservative supermajority rewarded Trump for breaking the law by firing leaders of independent agencies, erasing removal protections enacted by Congress. Then, the same justices allowed Trump to deport immigrants to random countries without due process, nullifying the Convention Against Torture and other limits imposed by Congress. Now this same clique has gone even bigger, letting Trump effectively kill off an entire agency, paralyzing dozens (perhaps hundreds) of statutory duties assigned to it by Congress. Is any law disfavored by a Republican president safe from this Supreme Court? Is it accurate to call the United States a nation of laws when our highest court will simply suspend laws disfavored by a Republican president? There are words to describe countries in which a strongman leader works with a captured judiciary to hobble the legislature, consolidate power, and declare himself free from legal restraints on his reign. Democracy is not one of them.
