When the Executive publicly announces its intent to break the law, and then executes on that promise, it is the Judiciary’s duty to check that lawlessness, not expedite it.— Dissent, Justice Sonia Sotomayor, joined by Justices Elena Kagan and Ketanji Brown Jackson, Linda McMahon, Secretary of Education, et al., vs. New York, et al.
The Supreme Court’s Republican majority just authorized Donald Trump’s complete dismantling of the US 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, it tasked it with specific priorities:
- Funding kindergarten through 12th grades with over $100 billion annually (around 11 percent of all funding for such public schools)
- Running the federal student financial aid system which 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 (IDEA) with special education services for more than 7 million students
- 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 steps require 90 days’ advance notice to Congress 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.
Other presidents respected Congressional authority
Presidents have felt differently about the value and purpose of the US Department of Education, but all of them, prior to Trump, recognized that they lacked the unilateral authority to eliminate a federal department that Congress specifically created. Not only did Congress create the Department of Education, it passed education-related mandates and tasked the department with carrying them out.
In 1982, President Ronald Reagan wanted to dismantle the department, and submitted a proposal to Congress that would have done just that. Reagan withdrew his plan after it garnered little support in Congress.
Trump, in contrast, appointed Linda McMahon to lead the department with a mandate to “put herself out of a job,” meaning, to eliminate the entire agency. Commencing with immediate layoffs in March, McMahon confirmed that her first reduction in force (RIF) — which cut the Education department’s staff in half — was “the first step on the road to a total shutdown” directed by the president.
McMahon’s first RIF came with employee lock outs, which made it impossible for terminated staff to hand off work to remaining staff. Like 500 tons of USAID food that Trump just ordered incinerated rather than let it feed people, all the education department work that went into those projects was simply destroyed.
At a Congressional budget hearing, when McMahon was asked if she or the department had conducted “an actual analysis” to determine what the effects of the reduction in force would be on the Department’s statutory functions, McMahon testified, simply, “No.”
Decision supports what Trump started
The Court’s decision came two weeks after states received a three-sentence email from the US Department of Education advising them that $7 billion in education funding — which was scheduled to arrive the next day — was being frozen indefinitely, without providing a reason.
The Impoundment Control Act of 1974 says the president cannot refuse to spend funds Congress previously appropriated. But Trump claims that act is unconstitutional, and that he should have greater control over Congressional spending.
Impounded funds had been earmarked by the states to provide afterschool and summer programs so students nationwide 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 classrooms, 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.
Separation of powers is becoming a quaint memory
Our constitutional order, for the last 250 years, has been that Congress “makes laws” and the President “faithfully executes them.” There is no language in the Constitution that authorizes a President to unilaterally enact, amend, or repeal statutes.
Republican justices on the Supreme Court read history selectively, as they consistently bend existing statutes to satisfy Trump’s will. The Education decision followed a similar shadow docket ruling made just one week ago in Trump v. American Federation of Government Employees.
In American Federation, the Court allowed the Trump Administration to fire tens of thousands of workers at 19 federal government agencies — the bulk of the federal government — while appeals over the firings continue.
The dissent in both cases was livid. Justice Sonia Sotomayor called the Education 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 the 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.
SCOTUS approves Trump’s disregard for the law
Aside from the fatal blow to the separation of powers, the Republican majority on the high court has rewarded a thuggish president for his continuing pattern of breaking the law first and seeking permission later.
Congress expressly barred the Secretary of Education 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.
- Sabrina Haake is a columnist and 25+ year federal trial attorney specializing in 1st and 14th A defense. Her Substack, The Haake Take, is free.
