Constitutional Law Professor Reacts

and is also the previous episode of this podcast. But during my research I talked with law professor Derek Black about the Department of Education, the state of disunion in the country, and if we still have a democracy Already, some of the things we talked about have begun to happen, like Republicans introducing legislation to expanding executive power while Trump and Musk flirt with denying the authority of the courts.

I decided to publish the full interview because I believe his perspective is still helpful and the conversational format alters the way we process information compared to me just reading a kind of depressing essay for forty minutes. So, without further ado, here is the interview.

of the Affordable Healthcare Act debate. So you always have this stage rights argument going on, and at least amongst the folks that are worried about that public education comes up as being a target because there's this argument always that, well, education is not in the federal constitution, so what business does the federal government have to be involved? And so it's really more of a talking point as opposed to any particular substantive reason why they want to get rid

of it. But that's really where it's come from. But you know, it's often been not that serious of a critique, but obviously it's gotten very serious here in the last couple of weeks.

have previously thought are kind of like pipe dreams. Calls to abolish the Department of Education, even this rallying call from the new right in the past few years to like abolish the FBI, general claims of you know, like draining the swamp, these types of like old it's almost like stereotypical claims that now through musk they've been able to like weasel their way into actually dismantling like large, large systems that make the everyday functionality of the government possible.

What should people know, right, now about the current attacks in the Department of Education. Trump is still allegedly drafting in executive order. He'll probably have to work through Congress, but we'll see the degree to which he even needs to do that. What are you worried about, like right now? And what do you think people should know about like the current the current attacks on the dewy.

that would need Congress. And I mean, it's a weird silver lining, but that gives me like some like measure of comfortability in this weird, bizarre world, only because you know, two weeks ago the administration was willing to do things that it had no authority to do, right, just sort of his claiming authority to do everything. And so there is this at least recognition that there's not unbounded power.

So that's sort of the immediate threat is not that huge because the White House, Trump's power over the Department or to close it up is relatively narrow, Like most of the department is established by statute, and he can't just dissolve things or move things around that are created by statute. He can't take money that's for poor kids and spend them on vouchers. Right, these things you know,

the law dictates. And the fact that he's implicitly acknowledging, or rather his advisors or you know, implicitly acknowledging they need Congress has helped gives me a little bit of comfort because I think that getting rid of the Department is I'm not sure there's a majority in the House for that, but there's certainly not a filibuster, you know, sixty vote majority for that in the Senate. So that's

short term. But I think there's something far more disturbing to me, and it's the long term, this sort of idea that there's something illegitimate about the federal role in education, that there's something illegitimate about public education itself. Those are very dangerous ideas. And I have a piece that just came out yesterday and Slate that says Look, you know, the federal role in public education predates the Constitution itself.

You know, probably no one, not many listeners, probably familiar. I ever heard of the Northwest Ordinances of seventeen eighty five and seventeen eighty seven. But before we even had a United States Constitution, this foundational document laid out how are territory is going to become states, And without going through all the details, Congress embeds public education and the very fabric of what it means to be a state before we even have a constitution. And so that's very important.

Is where we start. At the end of the Civil War, right where we almost lost our democracy. Congress, as a condition of readmitting Southern states into the Union, says that one of the terms of readmission is that you create public education system and you never take those rights away, right, forcing public education into the South in places where it never had been before. You know, people are more familiar

with the civil rights movement. So I won't go through all that, but just to take one more pause, I mean, Congress created a Department of Education in eighteen sixty seven, right to get this public education project off the ground. So this isn't some wild new sort of fantasy of liberals or unions that we need a department so that

we can hand over the spoils to teachers. This is an idea about what it means to have democracy in America, and public education is a centerpiece of that, and the federal government has been pushing it for two hundred and fifty years. It's a good thing. It's a good thing.

power and bypass Congress when they can. Part of my fear is like Congress is not willing to fight them on that. Seemingly like they're not willing to call them on that. They're almost willing to acquiesce their like appropriation's ability as well as you know, the ability to have actually have to like remove departments from existence or create new ones.

Congress funds programs, not the executive. But if if ultimately Congress is going to shift all that authority over like that, that's a dangerous place for democracy to be. There are no checks anymore. So I think what you're raising up is the fear that there aren't any checks in place.

You know, Fortunately, there still is a legal apparatus. I mean, even if Congress isn't standing up shouting and complaining, it's still the case the president can't just do whatever he wants, and hopefully the courts, you know, would would step in. I use the word hopefully. I think courts will step in to limit his ability to do things that go beyond to statutory power. So the bigger danger, I think is that through law itself, Congress seedes more and more

power to the president with a new legislation. So if Congress were to pass new legislation giving the president more centralized power, well that would be a concerning thing to me. Let me just stop and we'll get to your next question.

in regard to a no Child Left Behind waivers. And you know, I told the current administration, as much as I hate it, right, I wish we could just wipe away student debt. I feel bad for my students who have huge debt. But I said, it is beyond the president's power to just wipe away all this debt, and

they did it. Anyway. The real point here is that both Democrats and Republicans have been asking things of their presidents that their presidents don't have the power to do, and their presidents are doing it any right, And it's because our Congress is broken. Our Congress isn't doing its job. So citizens are demanding that our presidents do things that they really don't have the power to do.

government temporarily to like their goals be enacted. And at a certain point, it's really tricky when the thing that you always hear is, you know, like hopefully the courts will step in, hopefully they'll do something if things get really bad, who will like literally stop them in terms of like the courts told them to halt the funding freeze, and there is there's still grants that they are refusing to issue that were already approved legally need to be

followed through on that they are still withholding and it's it's really frightening when it comes down to like basic level of like is there are people military police who will enforce this that things get really bad. That's something I don't have like complete confidence in anymore.

all is lost. Right. So, for when Brown versus Board of Education was decided, it was reportedly the case that the President said, you know, if the court wants to desegregate schools, let it do it itself. Because guess what, what's the Supreme Court. It's nine old people in one building with a handful of capitol police do anything. They

don't have a power to do anything. Right, So our entire system really rests on good faith, or, as I tell my students, like what if due to something, you know, President Trump or Biden or whoever had done, the Federal District Court issued an order directing US Marshals to take President Trump into a custody. So that order goes out, the marshals receive it, they march over to the White House, they come in the door, and they say, we are

here to take the president. Signed and it's already been fast tracked by Supreme Court, signed by the Supreme Court. The answer to whether we'll just use Biden, the answer to whether President Biden is escorted out of the White House by US marshals is not a function of military It's not a function of police power. It's a function of when that piece of paper is held up, does the secret Service member believe that the rule of law

exceeds his loyalty to the man standing behind him. Yeah, that's where it's at, right, And so you know, it really is a good faith litmus test. And I think we used to live in an era when I think we all had maybe more faith in the idea that people put fidelity and commitment to the Constitution and the law above personal loyalty. But we increasingly live in a congress and in a world, in a situation when it seems that people put personal loyalty above the constitution at times.

the administrative state. Replace them with our people. And when the courts stop, you stand before the country and say, the Chief Justice has made his ruling, now let him enforce it. And I feel like we're getting closer and closer to this scenario.

Yarvin's playbook for seizing executive power. And I feel like we're getting closer and closer to this, and so much of what's happening in various agencies it is about proving loyalty to Trump so that if there is some kind

of constitutional confrontation, people side with him. Doge is basically installing loyalty tests and running through communications to like see what the loyalty to Trump is for different levels of administrative employees the FBI are negotiations to stay on but only if they can prove their loyalty to the president. And like, it's all of these scenarios that again, like originally would be kind of far fetched. When you're hearing someone like Jdvans talk about this a few years ago

on some like right wing podcast. That's one thing to watch this like happen in real time. For people like me who study like this type of like more like esoteric far right political theory, it's kind of surreal to watch the type of thing that you've been like writing about and thinking about, like on background for years now happen.

I just kind of rambled there. But do you have any like, I guess, thoughts on like this idea that like Vance is talking about in terms of like creating this constitutional crisis.

had a huge crisis of confidence, shall we say. There were just a few events in the news that I was just like, I just never thought that this would happen in America. I never thought a governor would I mean, some of this was what governors were doing. I never thought a governor would do that. I never thought a president would do that. I just never thought, you know, never thought, never thought. And so I said to myself, you know, are any of my opinions or projections, you know,

valid anymore? Because I'm the guy who never thought. And so that was that was you know, that was a tough twenty four hours for me. I'll have to say. So, you know, I don't know if like I just rebooted and for self sanity and move forward, or you know, know, whether there is still some truth and reason to believe

in certain stability. And I mean, I will say this, you know, as we started this conversation, the fact that the White House is conceding that it can't do everything to the Department of Education that it wants to do without Congress is a good thing. If you read the five executive orders or for however many they've already issued there, it's a good thing that actually, if you read them carefully, it's mostly directing appointees to think about stuff, not actually

do stuff, but to think about stuff. And of course the president can appoint them to think about stuff. If they do the stuff they're thinking about, that becomes a problem. But again, it is this sort of like can I grab a headline about what would sound like an awful you know, reality, But really all I've done is type of to think about that reality. You know, that gives me some faith, right, And notwithstanding the fact that this United States Supreme Court, you know, granted an immunity to

all presidents that I never could have imagined. You know, this court does, you know, issue opinions that surprise us every single term, and they line up with the rule of law. It's just it's unpredictable to some extent which which opinions those are going to be. So I have this faith, you know, these sort of pieces of of the puzzle that still suggests we're still democracy and are going to remain one. But you know, I have I

have my really bad days. I think, like you know, I think a lot of people have a bad day every day right now. It's you know, I just feel thankful minor mineor fewer and further between than others. And maybe that's just psychological coping. I don't know.

its opinions about various things. I'm not going to say that that there were a bunch of abolitionis, but there was a manumissioned society in North Carolina in eighteen twenty

nine that had I think sixteen hundred members. Right. The very idea of sixteen hundred you know, anti slavery advocates in North Carolina the eighteen twenties is shocking to a lot of people, right, But ten years later, only twelve people show up to the final meeting, right, So you had something that changed there, right, And so you have this sort of period of escalating disunion and censorship and propaganda and sort of policing what is publicly you know,

acceptable commentary in the South. All this stuff is happening sort of going in and you know, editing, their sort of censoring textbooks, you know, demanding that books only be written by Southerners, like, oh, I make it go on and on and on. We don't have time for it.

What I point out, though, in my analysis of what's going on, you know right now over the last few years of education, is that there are a lot of policies that are attacking public education in the way that they previously had, And a lot of them are symbolic of disunion instincts, right, sort of just sort of anti government, right, anti sort of whatever the current culture is. And then

there's actually policies that I argue are facilitating disunion. And one of those that I talk about is our public school voucher. I say, private school vouchers. You are so upset with you're so raging at the public school system that we need private school vouchers, right, and we are effectively paying, We're going to pay individuals to leave the public school system. And I call this a coded call for disunion, even if people don't think that's what they're doing.

If we look back at where we started this conversation, which is institution of public education as something upon which American democracy has been built, of course it has lots of flaws and it wasn't perfect, but it's been part of how we build a democracy. It's always been a bipartisan project. Now becoming the thing that we rage against, now becoming the thing in which we are going to finance exit from right, This is a step towards disunion

from a fundamental institution of American democracy. What happens to us if they actually execute on that plan. I shudder to think about where we might be, because it's not just some private school that's the equivalent of the public school. We're talking about people on the public dollar retreating into the religious silos, into their racial silos, into their culture silos.

And if there's anything I think that we could all agree on, is listening to only the people that you like on Twitter or listening only to the people that you like for the evening news is what got us here. And if what we have is education that becomes the equivalent of MSNBC and Fox News and Newsmax and you know whatever else like that is a dangerous place. I don't know how we build democracy on such a system.

say otherwise. But if what we're doing is talking about education itself, I think number one is that I think our leaders need to understand better understand the dangers of you know, vouchers for instance, Like right now and I'm writing about this, like they think it's just a policy dispute, and like, if you just look at the surface level, it's like, well, who cares if we give some more vouchers and that makes the most far reaches of our

party happy. But like I think sort of really stepping back and appreciating how dangerous this is to our democracy is step one, and that's hard, right, I'm talking about teaching adults to see things differently than what they currently see them. But as to our schools, I mean, I've got a little bit of stiff medicine for both sides. I mean, I do think that in the push for more justice in our public schools, and I think we do need. I mean, that's what I've devoted my career to.

I do think that, well, I don't think our schools did any of the any of the awful stuff that you know that the right has said, but I do think that they maybe were not as open to people disagreeing with them as they should have been. And what I really mean is in the push for justice, I think there was a bit of shutting down conversation, not teaching children to reach their own conclusions, but giving them

conclusions and expecting them to reach them. And so one of the things I'm working on my new book is that, like, I really think we have to rethink how we teach history, you know, how we teach literature. Maybe not so much literature. I think our literature teachers are pretty good, but rethink how we teach those things such that we are not

committed to our children reaching particular conclusions. What we're committed to is our children engaging in free and open thought amongst themselves, right with hopefully an adult in the room that can you establish some guidelines. But I think, you know, public education didn't do that very well five years ago, ten years ago, go thirty years ago when I was there.

But I think in this moment of cultural fracture, we do really have to commit to free speech, open debate, inquiry, listening harder, thinking harder, right, not just bullet points, not just bullet points.

let's say he didn't back down. It's like, well, okay, you know maybe you know as a district court, but if the United States Supreme Court or Court of Appeals told the president you lack the authority to to quest of those funds, and he still did it. So just the budget, that's it. Just the budget, you know, just the belief that the president can spend our money however he wants, with no with no constraint, and that would

be crossing the rubicon. Now, I'll tell you. And this is why you know you had to kind of be like constant a law professor, or well, you don't have to be a constitutional law professor, but you've been following it. It's like, you know, I have been alarmed, And this goes back, this isn't just a Trump problem, Like I

was alarmed with the NCLB waivers. Probably nobody in this even knows what I'm talking about, right, like, you know, a decade ago, not that like President Obama was like going to take over the country, but alarmed that somehow another he thinks he can do this, Like why is he even testing the boundaries this way?

such a big deal. But when Biden, I mean think back, and again I don't begrudge people needing their debts relief, but when President Biden effectively asserted the power to allocate federal dollars to pay off debts, that was like, you know, half of the discretionary funds of the entire federal government, Like that's a big move to just yeah, I can commit this nation to a fifty percent increase it's in its fiscal outlays tomorrow. That's not constitutional democracy. But now right,

we have a present going even further than that. But he liked Biden at least thus far, stepped back at least from the district court right when the court said can't. So it's really that sort of defying of the court at that point. Yeah, they've all been pushing the boundaries. He's pushed them further thus far. They've all complied with judicial orders, but it would be the refusal to comply with judicial order.

in terms of like tests for loyalty. And it's at a certain point, like if he does something really bad at least for these next two years, like I don't see a way that he'll get like impeached or removed from office, Like certainly not with this to send it, not with this Congress, like that check and balance just no longer is viable due to the last election, and acting with that popular mandate has I think given them a bit more courage on their side to go, you know,

a little bit further, play, a little bit more fast and loose some of these like checks and balances than what we've like previously seen. But this is certainly still still developing.

like you know, Nixon was, Yeah, Nixon was paranoid. He was like, like, this is what presidents do, but it's not appropriate to do it in public, right, you do it behind closed doors. You know, offer some plausible rational rationalization for what you're doing, and you know, you minimize it,

act like it's no big deal. What's startling here is that he is out in the open expressing his designs to us, giving us the sort of thoughts, and that's very unusual, and it does show that what's acceptable from public officials is much different now because had, you know, had Nixon shared his designs with the American public, he wouldn't have made it as long as he did, you know, and probably true of a lot of other presidents, they

would have been gone. So what's actually acceptable as public behavior has clearly changed, what's acceptable as a policy agenda has clearly changed. And so he's just putting it out there. He's putting his dirty laundry out there, and people are like, oh, this is normal.

find me there. I'm a professor of law at the University of South Carolina, and like I said, you know, dangerous learning just came out, you know, a week or so ago, really helping us, I think, helping us to see this current moment through a long lens of war on black equality, black freedom, and to be quite honest, just free and open debate. We've had those wars before and and we scarily are having them again.