Last week, the Supreme Court’s conservative majority authorized President Donald Trump’s dismantling of the U.S. Department of Education. In another shadow docket ruling that lacks legal precedent, facts or justification, the court dealt an even more serious blow to separation of powers than to public education.
The Education Department was established by federal statute in 1979 to “strengthen the Federal commitment to ensuring access to equal educational opportunity for every individual.” Congress not only created the department by federal statute, but it also tasked the agency with specific priorities: Funding kindergarten through 12th grades with over $100 billion annually, which makes up around 11% of all public school funding; running the federal student financial aid system, which has awarded over $120 billion a year in student aid to over 13 million students; ensuring equal access to education for poor, disabled and disadvantaged students; administering the Individuals with Disabilities Education Act with special education services for more than 7 million students and administering grants for students seeking college degrees or higher education.
Congress expressly prohibited the secretary of education from “abolishing organizational entities established” in the department’s founding statute without following prescribed steps. Those actions require advance notice of 90 days to Congress, which includes providing factual support and explanations for each of the proposed actions of abolishment. None of those statutorily-mandated steps were followed by the Trump administration.
Presidents have felt differently about the value and purpose of the Department of Education, but prior to Trump, all of them recognized they lacked the unilateral authority to eliminate a federal department Congress had specifically created.
Presidents have felt differently about the value and purpose of the Department of Education, but prior to Trump, all of them recognized they lacked the unilateral authority to eliminate a federal department Congress had specifically created. Not only did Congress create the Education Department, but it also passed education-related mandates and tasked the department with carrying them out.
In 1982, President Reagan wanted to dismantle the department, and he submitted a proposal to Congress that would have done just that. But after it garnered little support on Capitol Hill, he ultimately withdrew his plan.
Trump, in contrast, appointed Linda McMahon to lead the department with a mandate to “put herself out of a job” — in other words, to eliminate the entire agency altogether. When she accordingly commenced with immediate layoffs in March, McMahon confirmed that her first reduction in force — which cut the department’s staff in half — was “the first step on the road to a total shutdown” directed by the president.
McMahon’s first cuts came with employee lock outs, which made it impossible for terminated staff to hand off their existing work to the department’s remaining staff. Like the 500 tons of U.S. Agency for International Development food that Trump just ordered to be incinerated rather than letting it be distributed to feed people in need, all the department’s work that had gone into those projects was simply destroyed.
At a subsequent Senate subcommittee hearing on the department’s budget, when McMahon was asked by Democratic Sen. Patty Murray of Washington if she or the department had conducted “an actual analysis” to determine what the effects of the reduction in force would be on the agency’s statutory functions, her response was simple: “No.”
The Supreme Court’s decision came two weeks after states received a three-sentence email from the Education Department advising that $7 billion in education funding — which was scheduled to arrive the next day — was being frozen indefinitely. The notice did not provide a reason.
According to the Impoundment Control Act of 1974, the president cannot refuse to spend funds Congress previously appropriated. But Trump is claiming the legislation is unconstitutional and that he should have greater control over congressional spending. Republicans in Congress agree with the president’s interpretation. (On Friday morning, following approval by the Senate in a party line vote, the House passed legislation allowing the president to claw back $9 billion for foreign aid and public broadcasting. Two Republicans broke ranks to oppose the measure; all Democrats voted against it. The bill will now go to Trump’s desk for his signature.)
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The Education Department’s impounded funds had been earmarked by the states to provide after-school and summer programs, so that students across the country would have somewhere to go while their parents are working, along with adult literacy classes, in-school mental health support, smaller class sizes for elementary schools and services for students learning English. Alabama’s Superintendent of Education Eric Mackey told ABC News that Trump’s funding block would hurt students with the greatest need, and that “the loss of funding for those rural, poor, high-poverty school districts” makes it all that much more difficult to educate poor children in those communities.
Conservative justices on the Supreme Court read history differently — and selectively — as they consistently bend existing statutes to satisfy Trump’s will. The court’s decision on the Education Department followed a similar shadow docket ruling made just two weeks ago in Trump v. American Federation of Government Employees. In this case, the court allowed the administration to fire tens of thousands of federal workers at 19 different federal government agencies — the bulk of the federal government — while appeals over the firings continue.
In both cases, the dissent was livid. Justice Sonia Sotomayor called the Education Department decision “indefensible” because it “hands the Executive the power to repeal statutes by firing all those necessary to carry them out.” Aside from supporting public education in general, the gist of her dissent was that allowing an executive to unilaterally dissolve a federal department expressly created by Congress poses a grave threat to the separation of powers by diminishing the role of Congress. Sotomayor also called out her fellow justices. “When the Executive publicly announces its intent to break the law, and then executes on that promise,” she wrote, “it is the Judiciary’s duty to check that lawlessness, not expedite it.”
In addition to the fatal blow to the separation of powers, the court’s conservative majority has rewarded a thuggish president for his continuing pattern of breaking the law first and seeking permission later.
Congress expressly prohibited the education secretary from altering functions assigned to the department by statute and barred her from abolishing organizational entities established by law. But Secretary McMahon, directed by the president, did it anyway. As the dissent put it, “The Executive has seized for itself the power to repeal federal law by way of mass terminations, in direct contravention of the Take Care Clause and our Constitution’s separation of powers.”
The court’s majority has now altered our constitutional makeup, conferring on Trump the power to repeal laws by firing all employees necessary to carry them out. Instead of taking care that the nation’s laws are “faithfully executed,” the court’s majority has told Trump he can simply discard them.
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