With another unexplained grant of relief to the Trump administration, the MAGA majority of the Supreme Court has just given his administration a pass to squeeze the Education Department into insignificance. The department’s neutering is at the core of Trump’s Project 2025, which aims to radically reorganize the federal government with the stroke of a pen.
The Education Department was created under a 1979 statute signed by President Jimmy Carter and approved by Congress. Since then, Republican presidential candidates have generally vowed to eliminate the department that used to be the “E” in the Health, Education, and Welfare Department, now the Department of Health and Human Services.
The Education Department’s principal mission is to promote student achievement and preparation for global competitiveness by fostering educational excellence and ensuring equal access. It is responsible for administering the $1.6 trillion federal student loan program, grants to elementary and secondary schools, achievement tests, and civil rights laws in schools. Whether you favor or disapprove of its various policies, the Department has been a valuable tool to enact the preferences of duly elected presidents and Congresses, whether it was the bipartisan No Child Left Behind Act signed by George W. Bush or the Race to the Top challenge grants enacted under Barack Obama.
Trump, who didn’t expend much political effort to eliminate the department during his first term, now claims that it’s a hotbed of radical diversity, equity, and inclusion (DEI) indoctrination and has used extra-legislative means to accomplish a statutory end.
The ruling continues a Supreme Court winning streak for Trump’s efforts to slash the federal government, assert his authority over the executive branch, and undo statutes long codified. The justices have already signed off on Trump’s plans to fire thousands of other federal workers, and remove the heads of independent agencies.
In the Department of Education case, the Court summarily throttled a temporary lower court ruling that prevented Trump from slashing more than a third of the Department’s 4,100 workers and shifting some functions elsewhere as litigation plays out in the lower courts.
The Court wrote nary a word of rationale for its decision. The department’s death by a thousand cuts is at the core of Trump’s Project 2025, which aims to radically reorganize the federal government. The Court did not discuss the legality of Trump’s action. Justice Sonia Sotomayor wrote a bristling 19-page dissent that the court’s two other liberals joined, labeling the ruling “indefensible” and a significant expansion of presidential power.
In sobering language, Sotomayor wrote, “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.” She added that the court “hands the Executive the power to repeal statutes by firing all those necessary to carry them out.”
Trump’s principal defense of his executive order was not that he had the authority to do what he did, but that the plaintiffs lacked the standing to challenge it. The Court gave Trump a healing benediction, completely sidestepping that his action was almost certainly illegal.
Education Secretary Linda McMahon initiated the largest job cut in the department’s history in March. Soon thereafter, Trump, ignoring that Congress created the Department, issued an executive order directing McMahon to “take all necessary steps to facilitate the closure of the Department of Education.” The “necessary steps” mean eliminating office space in San Francisco, New York, Boston, Chicago, Dallas, and Cleveland, and consolidating staff from three buildings to one in D.C., making the Department a home without a house. Never mind that Trump has been eager to expand the department’s authority, using its civil rights office to compel major universities such as Harvard, Columbia, and Northwestern to bend the knee and agree to granting huge, inappropriate swaths of authority to the executive branch, including putting entire departments in receivership.
More than 1,300 workers will be put to pasture under McMahon, who ran the Small Business Administration in Trump’s first term and is a pro wrestling executive. McMahon insists the Department will continue its statutorily required functions with a requested appropriation of more than $66 billion for next year’s budget. But how do you do it without adequate personnel and offices?
More than 20 states, teachers’ unions, and school districts filed challenges to the cuts. They argued that they would strip the department “down to the plywood”, with deleterious effects on schools, districts, and children, rendering it unable to execute the policies Congress has mandated.
Sheria Smith, president of the American Federation of Government Employees Local 252, one of the Education Department employees targeted as part of the downsizing, said: “This effort from the Trump administration to dismantle the Department of Education is playing with the futures of millions of Americans, and after just four months, the consequences are already evident across our education system.”
Massachusetts Federal Judge Myong J. Joun, nominated by President Joe Biden, agreed with that assessment in May, issuing a preliminary injunction requiring the government to rehire all staff who were cut and reset all changes made since Trump took office. Joun referred to evidence by Education Department employees and others that “the cuts would likely cripple the Department”—a “stark picture of the irreparable harm” the cuts would cause if not reversed, particularly on vulnerable students.
The First Circuit Court of Appeals affirmed Joun’s decision last month, before Trump, arguing that the courts had overreached. He filed his emergency appeal with the Supreme Court.
“The Constitution vests the Executive Branch, not district courts, with the authority to make judgments about how many employees are needed to carry out an agency’s statutory functions, and whom they should be,” the solicitor general argued. Yes, unless the Executive Branch negates the agency’s mission with cuts and closings.
Polls show the public is rapidly losing confidence in the Supreme Court, which it sees increasingly as politicians in robes.
The evidence that the Court had become totally political is the box score. On the shadow docket, of the 22 decided applications decided by the Court this term involving Trump’s executive orders, Trump won 20 and lost maybe two. Also, the Court’s behavior has been supremely partisan. Its inconsistency is astounding. As pointed out by conservative Chicago Law Professor Will Baude, it is anomalous that the Court outlawed the nationwide injunction in the birthright citizenship case, but refused to disturb it when it had a chance during the administrations of Bush, Obama, or Biden.
Look at how the very justices who considered Biden’s student loan debt forgiveness program and how they treated the Department of Education matter in the Trump administration. It is a dead giveaway that they are just voting their partisan policy preferences, not expounding the law.
In the student loan cases, the Court left a stay in place while deferring resolution on decision, with the effect of putting the program on hold for an additional six-and-a-half months. After the argument, the Court unanimously held that the private plaintiffs lacked standing; and it ruled 6-3 that one of the states had standing. In other words, the Court froze a Department of Education policy initiative for more than half a year while it figured out whether anyone had standing to challenge it, rejecting Biden’s request that the policy be implemented while they dithered. In the Roberts MAGA Court, what is sauce for the goose is not necessarily sauce for the gander.
Despite solid standing objections when Biden sought to effectuate his student loan debt relief package, the Court delayed implementation while considering the matter. Despite Trump’s weak standing objections, the conservative supermajority gave him running room to kneecap a federal agency and vitiate the acts of Congress creating that agency. There is no explanation why a weak standing claim justified a stay regarding an illegal Trump executive order. Still, the Court took the opposite tack regarding a Biden program they didn’t like.
Baude rationalized the Court’s odd switcheroo as “picking and choosing” its battles to avoid a constitutional confrontation, conceding there is “too much lawlessness to do otherwise.”
But there is more to the Court’s behavior than that. The conclusion is inescapable: the Court’s rulings are explained not by legal standards, but by who is in the White House. This was not why Samuel Alito flew an upside-down flag at his Jersey Shore home during the Biden administration, but it might be a reason for the rest of us to hoist a distress signal under Trump.
