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Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.

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Speaker 2: And it sounds strange, doesn't it. Department of Education. We're

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Speaker 2: going to eliminate it, and everybody knows it's right.

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Speaker 3: In March, President Trump signed an executive order to dissolve

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Speaker 3: the Department of Education, which oversees billions of dollars in

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Speaker 3: funding for everything from student loans to special needs and

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Speaker 3: nutritional programs. Trump said that the essential services provided by

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Speaker 3: the department will be picked up by other agencies and

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Speaker 3: guess who else.

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Speaker 2: All we have to do is get the students to

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Speaker 2: get guidance from the people that love them and cherish them,

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Speaker 2: including their parents, by the way, who will be totally

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Speaker 2: involved in their education along with the boards.

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Speaker 3: Well. Twenty Democratic state attorneys general sued, arguing that the

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Speaker 3: administration's actions to dismantle the DOE are illegal and unconstitutional.

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Speaker 3: UCA's only Congress has the authority to eliminate the department.

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Speaker 3: Here's New Jersey Attorney General Matthew Platkin.

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Speaker 1: They're hurting our kids to score cheap political points.

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Speaker 4: And I think for the eighty five percent of families

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Speaker 4: in this country that rely on public education, this is

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Speaker 4: an affront to all of us.

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Speaker 3: A federal judge in Boston agreed and said that the

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Speaker 3: Trump purge would leave the department unable to perform duties

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Speaker 3: required by the law. He usued a preliminary injunction in May,

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Speaker 3: blocking the administration from downsizing the department, But yesterday a

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Speaker 3: divided Supreme Court lifted that judge's order and allowed Trump

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Speaker 3: to resume dismantling the DOE over a blistering dissent by

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Speaker 3: the court's three liberals joining me is constitutional law expert

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Speaker 3: David super, a professor at Georgetown Law. Trump can't officially

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Speaker 3: eliminate the Department of Education, or any department, but can

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Speaker 3: he effectively dismantle it?

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Speaker 4: He is dumb, so with the Department of Education. I

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Speaker 4: don't think it's lawful. I don't even understand a plausible

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Speaker 4: legal theory why it might be lawful. But he has

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Speaker 4: certainly done that.

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Speaker 3: Given the Court's previous rulings for Trump, especially last week's

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Speaker 3: ruling that allowed the administration to begin mass firings at

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Speaker 3: federal agencies, did this decision come as any surprise At

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Speaker 3: this decision about the Department of Education?

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Speaker 4: This one did for several reasons. One is it came

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Speaker 4: without any explanation at all. What the Court's done in

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Speaker 4: prior cases upholding the administration is nitpick the challengers to death,

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Speaker 4: finding small, often semantic defect in what they've done. It's

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Speaker 4: truing jurisdiction extraordinarily strictly. But in this case they simply

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Speaker 4: allowed the president to go forward with activities that seem

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Speaker 4: patently illegal without giving any explanation as to why it

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Speaker 4: was acceptable.

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Speaker 3: Are the Supreme Courts conservatives just ignoring the decisions of

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Speaker 3: the lower courts because here the Boston Federal judge said

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Speaker 3: the purge would lead the Department unable to perform duties

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Speaker 3: required under US law. Are the conservatives just ignoring what

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Speaker 3: the district court judges find.

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Speaker 4: They seem to be which is inappropriate because on questions

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Speaker 4: of fact, appellate courts are supposed to be highly deferential

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Speaker 4: to the lower courts. That's true now, that was true

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Speaker 4: at the time of the founding, So that should not

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Speaker 4: be a difficult proposition for originalists in this case.

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Speaker 3: As you said, there's no opinion, so we don't know

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Speaker 3: what they based this on. But can we assume that

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Speaker 3: they found the government would win on the.

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Speaker 4: Merits that's really the only plausible explanation. The lower court's

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Speaker 4: decision seems to have met all procedural requirements. The lower

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Speaker 4: court was observing the status quo, which is a traditional

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Speaker 4: form of an injunction. And clearly there is irreparable injury

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Speaker 4: alleged by the plaintiffs that would be impossible to address

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Speaker 4: if the department is in fact collapsed. So the court

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Speaker 4: must be concluding that plaintiffs will ultimately lose on the merits,

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Speaker 4: But it doesn't tell us how, and I can't guess.

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Speaker 3: Jessic Sonya Sotomayor, who wrote the dissent on behalf of

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Speaker 3: the three liberal justices, said the decision was indefensible, handing

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Speaker 3: the president the power to repeal statutes by firing all

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Speaker 3: those necessary to carry them out. Do you agree with

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Speaker 3: her dissent.

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Speaker 4: I'm afraid I do. The Supreme Court has talked in

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Speaker 4: other settings about the effects of actions. When it found

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Speaker 4: the president couldn't be criminally prosecuted for actions taken in office,

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Speaker 4: the Court couldn't find anything in a constitution or statute

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Speaker 4: that supports that. What the Court said is the effect

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Speaker 4: of this who would be to weaken the president too much? Well,

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Speaker 4: the effect of what the President has done to the

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Speaker 4: Department of Education is to collapse the department. And there's

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Speaker 4: a lower court that heard a great deal of evidence

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Speaker 4: that has reached that conclusion. It's disturbing that the Supreme

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Speaker 4: Court is not recognizing those effects when it was so

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Speaker 4: eager to do so in other cases.

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Speaker 3: Since April, the Supreme Court has signed with Trump every

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Speaker 3: time he made an emergency request. That's fifteen times, on

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Speaker 3: issues ranging from immigration and the firing of federal workers

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Speaker 3: to dismissing transgender service members from the military. Is that

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Speaker 3: a contrast to the way the Supreme Court treated President Biden.

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Speaker 4: It's a contrast the way they treated President Biden, who

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Speaker 4: had many of his most important policies and joined from

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Speaker 4: day one, including policies that would have been much easier

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Speaker 4: to unwind if they were ultimately found unlawful than, for example,

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Speaker 4: destroying the Education Department or destroying USAID. This is also

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Speaker 4: more deferential than we saw in the first few months

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Speaker 4: of this administration, which is even more disturbing.

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Speaker 3: I mean, two years ago, the same six Conservatives kept

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Speaker 3: President Biden's cancelation of student loans on hold while they

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Speaker 3: considered it on the merits docket and then found he

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Speaker 3: overstepped his authority. Can you hazard a guess as to

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Speaker 3: why they're giving Trump everything he wants? Are they just

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Speaker 3: throwing up their hands and saying he's the president?

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Speaker 4: Well, the Chief Justice has long been known for wanting

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Speaker 4: to present as united a cord as possible, and the

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Speaker 4: Chief Justice in the first month of the administration was

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Speaker 4: able to get some of his conservative colleagues to join

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Speaker 4: him in the liberals in reigning in the excesses of

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Speaker 4: this administration. I'm guessing that the Chief Justice has reached

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Speaker 4: the point of despairing of getting his colleagues to join

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Speaker 4: him and is not eager to override the administration on

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Speaker 4: bear five four or six three votes.

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Speaker 3: Chump and Education Secretary Linda McMahon have repeatedly said that

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Speaker 3: this is going to return responsibility for education to the States.

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Speaker 3: But don't the states already have you know the brunt

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Speaker 3: of responsibility for education?

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Speaker 4: Of course they do. Education in this country's overwhelmingly state funded,

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Speaker 4: even more overwhelmingly state controlled. The Department of Education has

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Speaker 4: been limited to providing additional funds where state and local

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Speaker 4: resources are insufficient and providing things that are more efficiently

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Speaker 4: purchased on the national level, such as curriculums such as

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Speaker 4: guidance and sharing of best practices. The Department of Education

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Speaker 4: is alaw of the least intrusive federal agencies, so the

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Speaker 4: statement doesn't make very much them.

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Speaker 3: The Trump administration says they want to return education to

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Speaker 3: the States, but yesterday, twenty four states and the District

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Speaker 3: of Columbia sued the administration forholding close to seven billion

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Speaker 3: dollars in federal funding for education programs. North Carolina Attorney

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Speaker 3: General Jeff Jackson said the consequences could be dire for

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Speaker 3: American students.

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Speaker 1: The effect is going to be massive, and it's going

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Speaker 1: to be immediate. We estimate it's roughly one hundred and

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Speaker 1: sixty five million dollars to the state. It's going to

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Speaker 1: result in roughly one thousand educators being laid off. This

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Speaker 1: is plainly against the laws, against the Constitutions, against the

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Speaker 1: Impoundment Act. From a legal standpoint, this is not a

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Speaker 1: hard case.

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Speaker 3: So the Trump administration's actions seem to be a little contradictory.

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Speaker 4: Yes, which suggests that this is more of a nuilist

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Speaker 4: approach than a different philosophy. You willlect a different president.

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Speaker 4: You should expect that they'll pursue a different philosophy. But

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Speaker 4: so far what we're seeing here is or wrecking ball.

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Speaker 4: We know they're against lots and lots of things, it's

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Speaker 4: not clear what they're for.

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Speaker 3: I've been talking to Georgetown law professor David super Trump

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Speaker 3: has argued in the past that, you know, the Education

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Speaker 3: Department is unnecessary and also a tool of woke culture.

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Speaker 3: And the agency is charged with enforcing civil rights laws

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Speaker 3: that bar discrimination and federally funded schools, and that office

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Speaker 3: is going to be hit particularly hard by this. It's

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Speaker 3: going to lose about half its staff and seven of

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Speaker 3: eleven regional offices. I mean, do you think that's part

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Speaker 3: of the goal here to eliminate that.

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Speaker 4: It's hard to know because this administration has used civil

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Speaker 4: rights allegations to buttress its attack on colleges and universities.

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Speaker 4: So it's clearly interested in using the Education Department as

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Speaker 4: a club. If you want to talk about limiting the

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Speaker 4: role of federal government, having it try to micromanage how

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Speaker 4: a university makes faculty appointments and selects people for tenure.

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Speaker 4: It's a huge overreach beyond the traditional role of federal government.

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Speaker 4: And that was not done under Joe Biden or Barack Obama.

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Speaker 4: That's something that this administration has innovated. So they're not

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Speaker 4: very consistent about whether they want a strong or a

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Speaker 4: weak education department.

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Speaker 3: There are still cases being litigated about the cuts to

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Speaker 3: staff at various agencies. Does this Supreme Court decision have

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Speaker 3: any effect on other litigation against the administration.

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Speaker 4: Well, it's not going to be precedent in other cases

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Speaker 4: because we have no idea what the ruling is. So

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Speaker 4: the immediate effect is just on the Department of Education.

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Speaker 4: If I was a lawyer litigating one of the other

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Speaker 4: cases or a judge deciding one of the other cases,

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Speaker 4: I would just shrug my shoulders and keep doing what

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Speaker 4: I'm doing, because the Court hasn't told us what it

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Speaker 4: does and does not. Like the ruling earlier in which

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Speaker 4: it overturned injunctions against mass firings at the Department of

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Speaker 4: State and various other agencies did provide a little bit

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Speaker 4: of a reasing. They said, you can't invalidate an executive

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Speaker 4: order that purports to require all laws to be followed

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Speaker 4: on its face. You can take action if the actual

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Speaker 4: implementation of that executive order violates law. So it's found

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Speaker 4: that the lower court had acted prematurely. That will certainly

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Speaker 4: shape how these other cases proceed and will direct the

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Speaker 4: parties and the courts to focus on implementation rather than

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Speaker 4: the plain language of the executive orders. I've been urging

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Speaker 4: people who are questioning the administration's actions to look beyond

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Speaker 4: the executive orders to the actual implementation, and the Court

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Speaker 4: is giving people a strong nudge in that same direction.

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Speaker 3: Yeah, because his executive order here said to the maximum

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Speaker 3: extent appropriate and permitted by law. I guess they put

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Speaker 3: in permitted by law on all these executive orders just

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Speaker 3: as a hedge.

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Speaker 4: Not quite all of them. That's certainly not in his

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Speaker 4: executive order about birthright citizenship, it's not in a few

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Speaker 4: of the others, but in the bulk of them, they

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Speaker 4: do have this boilerplate about the extent allowed by appropriate law.

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Speaker 4: Even its executive order against THEI only forbids illegal DEI programs.

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Speaker 3: So all these case is the Supreme Court is ruling

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Speaker 3: this way as the litigation is proceeding. But in a

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Speaker 3: lot of these cases, once the litigation is over, the

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Speaker 3: Department may already have been dismantled.

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Speaker 4: The rationale, I suppose is that the people could be

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Speaker 4: hired back to perform those functions. The likelihood is that

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Speaker 4: if you hire people off the street without institutional knowledge

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Speaker 4: and experience, the new workers won't be nearly as good

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Speaker 4: as the old workers you lost. But the ideas that

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Speaker 4: there will be someone performing these functions, even if they're

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Speaker 4: not very good at it.

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Speaker 3: Any final thoughts, any lessons to be learned from history

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Speaker 3: relating to this.

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Speaker 4: There's one thing that strikes me about this that we

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Speaker 4: didn't talk about, which is that this court has told

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Speaker 4: us again and again that it's originalist. The fourth law

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Speaker 4: that Congress passed after the ratification of the Constitution was

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Speaker 4: to start creating cabinet departments. So the first Congress understood

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Speaker 4: that it got to choose what cabinet departments we would have.

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Speaker 4: And you would think an Originals court would pay special

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Speaker 4: attention to that and not allow a president to make

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Speaker 4: these decisions. If George Washington couldn't decide what cabinet departments

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Speaker 4: we would have, Shirley Donald Trump can't.

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