This is Bloomberg Law with June Grossel from Bloomberg Radio.
And it sounds strange, doesn't it. Department of Education. We're going to eliminate it, and everybody knows it's right.
In March, President Trump signed an executive order to dissolve the Department of Education, which oversees billions of dollars in funding for everything from student loans to special needs and nutritional programs. Trump said that the essential services provided by the department will be picked up by other agencies and guess who else.
All we have to do is get the students to get guidance from the people that love them and cherish them, including their parents, by the way, who will be totally involved in their education along with the boards.
Well. Twenty Democratic state attorneys general sued, arguing that the administration's actions to dismantle the DOE are illegal and unconstitutional. UCA's only Congress has the authority to eliminate the department. Here's New Jersey Attorney General Matthew Platkin.
They're hurting our kids to score cheap political points.
And I think for the eighty five percent of families in this country that rely on public education, this is an affront to all of us.
A federal judge in Boston agreed and said that the Trump purge would leave the department unable to perform duties required by the law. He usued a preliminary injunction in May, blocking the administration from downsizing the department, But yesterday a divided Supreme Court lifted that judge's order and allowed Trump to resume dismantling the DOE over a blistering dissent by the court's three liberals joining me is constitutional law expert
David super, a professor at Georgetown Law. Trump can't officially eliminate the Department of Education, or any department, but can he effectively dismantle it?
He is dumb, so with the Department of Education. I don't think it's lawful. I don't even understand a plausible legal theory why it might be lawful. But he has certainly done that.
Given the Court's previous rulings for Trump, especially last week's ruling that allowed the administration to begin mass firings at federal agencies, did this decision come as any surprise At this decision about the Department of Education?
This one did for several reasons. One is it came without any explanation at all. What the Court's done in prior cases upholding the administration is nitpick the challengers to death, finding small, often semantic defect in what they've done. It's truing jurisdiction extraordinarily strictly. But in this case they simply allowed the president to go forward with activities that seem patently illegal without giving any explanation as to why it was acceptable.
Are the Supreme Courts conservatives just ignoring the decisions of the lower courts because here the Boston Federal judge said the purge would lead the Department unable to perform duties required under US law. Are the conservatives just ignoring what the district court judges find.
They seem to be which is inappropriate because on questions of fact, appellate courts are supposed to be highly deferential to the lower courts. That's true now, that was true at the time of the founding, So that should not be a difficult proposition for originalists in this case.
As you said, there's no opinion, so we don't know what they based this on. But can we assume that they found the government would win on the.
Merits that's really the only plausible explanation. The lower court's decision seems to have met all procedural requirements. The lower court was observing the status quo, which is a traditional form of an injunction. And clearly there is irreparable injury alleged by the plaintiffs that would be impossible to address if the department is in fact collapsed. So the court must be concluding that plaintiffs will ultimately lose on the merits, But it doesn't tell us how, and I can't guess.
Jessic Sonya Sotomayor, who wrote the dissent on behalf of the three liberal justices, said the decision was indefensible, handing the president the power to repeal statutes by firing all those necessary to carry them out. Do you agree with her dissent.
I'm afraid I do. The Supreme Court has talked in other settings about the effects of actions. When it found the president couldn't be criminally prosecuted for actions taken in office, the Court couldn't find anything in a constitution or statute that supports that. What the Court said is the effect of this who would be to weaken the president too much? Well, the effect of what the President has done to the
Department of Education is to collapse the department. And there's a lower court that heard a great deal of evidence that has reached that conclusion. It's disturbing that the Supreme Court is not recognizing those effects when it was so eager to do so in other cases.
Since April, the Supreme Court has signed with Trump every time he made an emergency request. That's fifteen times, on issues ranging from immigration and the firing of federal workers to dismissing transgender service members from the military. Is that a contrast to the way the Supreme Court treated President Biden.
It's a contrast the way they treated President Biden, who had many of his most important policies and joined from day one, including policies that would have been much easier to unwind if they were ultimately found unlawful than, for example, destroying the Education Department or destroying USAID. This is also more deferential than we saw in the first few months of this administration, which is even more disturbing.
I mean, two years ago, the same six Conservatives kept President Biden's cancelation of student loans on hold while they considered it on the merits docket and then found he overstepped his authority. Can you hazard a guess as to why they're giving Trump everything he wants? Are they just throwing up their hands and saying he's the president?
Well, the Chief Justice has long been known for wanting to present as united a cord as possible, and the Chief Justice in the first month of the administration was able to get some of his conservative colleagues to join him in the liberals in reigning in the excesses of this administration. I'm guessing that the Chief Justice has reached the point of despairing of getting his colleagues to join him and is not eager to override the administration on bear five four or six three votes.
Chump and Education Secretary Linda McMahon have repeatedly said that this is going to return responsibility for education to the States. But don't the states already have you know the brunt of responsibility for education?
Of course they do. Education in this country's overwhelmingly state funded, even more overwhelmingly state controlled. The Department of Education has been limited to providing additional funds where state and local resources are insufficient and providing things that are more efficiently purchased on the national level, such as curriculums such as
guidance and sharing of best practices. The Department of Education is alaw of the least intrusive federal agencies, so the statement doesn't make very much them.
The Trump administration says they want to return education to the States, but yesterday, twenty four states and the District of Columbia sued the administration forholding close to seven billion dollars in federal funding for education programs. North Carolina Attorney General Jeff Jackson said the consequences could be dire for American students.
The effect is going to be massive, and it's going to be immediate. We estimate it's roughly one hundred and sixty five million dollars to the state. It's going to result in roughly one thousand educators being laid off. This is plainly against the laws, against the Constitutions, against the Impoundment Act. From a legal standpoint, this is not a hard case.
So the Trump administration's actions seem to be a little contradictory.
Yes, which suggests that this is more of a nuilist approach than a different philosophy. You willlect a different president. You should expect that they'll pursue a different philosophy. But so far what we're seeing here is or wrecking ball. We know they're against lots and lots of things, it's not clear what they're for.
I've been talking to Georgetown law professor David super Trump has argued in the past that, you know, the Education Department is unnecessary and also a tool of woke culture. And the agency is charged with enforcing civil rights laws that bar discrimination and federally funded schools, and that office is going to be hit particularly hard by this. It's going to lose about half its staff and seven of eleven regional offices. I mean, do you think that's part of the goal here to eliminate that.
It's hard to know because this administration has used civil rights allegations to buttress its attack on colleges and universities. So it's clearly interested in using the Education Department as a club. If you want to talk about limiting the role of federal government, having it try to micromanage how a university makes faculty appointments and selects people for tenure. It's a huge overreach beyond the traditional role of federal government.
And that was not done under Joe Biden or Barack Obama. That's something that this administration has innovated. So they're not very consistent about whether they want a strong or a weak education department.
There are still cases being litigated about the cuts to staff at various agencies. Does this Supreme Court decision have any effect on other litigation against the administration.
Well, it's not going to be precedent in other cases because we have no idea what the ruling is. So the immediate effect is just on the Department of Education. If I was a lawyer litigating one of the other cases or a judge deciding one of the other cases, I would just shrug my shoulders and keep doing what I'm doing, because the Court hasn't told us what it
does and does not. Like the ruling earlier in which it overturned injunctions against mass firings at the Department of State and various other agencies did provide a little bit of a reasing. They said, you can't invalidate an executive order that purports to require all laws to be followed on its face. You can take action if the actual implementation of that executive order violates law. So it's found
that the lower court had acted prematurely. That will certainly shape how these other cases proceed and will direct the parties and the courts to focus on implementation rather than the plain language of the executive orders. I've been urging people who are questioning the administration's actions to look beyond the executive orders to the actual implementation, and the Court is giving people a strong nudge in that same direction.
Yeah, because his executive order here said to the maximum extent appropriate and permitted by law. I guess they put in permitted by law on all these executive orders just as a hedge.
Not quite all of them. That's certainly not in his executive order about birthright citizenship, it's not in a few of the others, but in the bulk of them, they do have this boilerplate about the extent allowed by appropriate law. Even its executive order against THEI only forbids illegal DEI programs.
So all these case is the Supreme Court is ruling this way as the litigation is proceeding. But in a lot of these cases, once the litigation is over, the Department may already have been dismantled.
The rationale, I suppose is that the people could be hired back to perform those functions. The likelihood is that if you hire people off the street without institutional knowledge and experience, the new workers won't be nearly as good as the old workers you lost. But the ideas that there will be someone performing these functions, even if they're not very good at it.
Any final thoughts, any lessons to be learned from history relating to this.
There's one thing that strikes me about this that we didn't talk about, which is that this court has told us again and again that it's originalist. The fourth law that Congress passed after the ratification of the Constitution was to start creating cabinet departments. So the first Congress understood that it got to choose what cabinet departments we would have. And you would think an Originals court would pay special attention to that and not allow a president to make
these decisions. If George Washington couldn't decide what cabinet departments we would have, Shirley Donald Trump can't.
Thanks so much for joining me, David. That's Professor David super of Georgetown Law. And that's it for this edition of the Bloomberg Law Show. Remember you can always get the latest legal news on our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify, and at www dot bloomberg dot com, slash podcast slash Law, and remember to tune into The Bloomberg Law Show every weeknight at ten pm Wall Street Time. I'm June Grosso and you're listening to Bloomberg