Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
Speaker 2: And it sounds strange, doesn't it. Department of Education. We're
Speaker 2: going to eliminate it, and everybody knows it's right.
Speaker 3: In March, President Trump signed an executive order to dissolve
Speaker 3: the Department of Education, which oversees billions of dollars in
Speaker 3: funding for everything from student loans to special needs and
Speaker 3: nutritional programs. Trump said that the essential services provided by
Speaker 3: the department will be picked up by other agencies and
Speaker 3: guess who else.
Speaker 2: All we have to do is get the students to
Speaker 2: get guidance from the people that love them and cherish them,
Speaker 2: including their parents, by the way, who will be totally
Speaker 2: involved in their education along with the boards.
Speaker 3: Well. Twenty Democratic state attorneys general sued, arguing that the
Speaker 3: administration's actions to dismantle the DOE are illegal and unconstitutional.
Speaker 3: UCA's only Congress has the authority to eliminate the department.
Speaker 3: Here's New Jersey Attorney General Matthew Platkin.
Speaker 1: They're hurting our kids to score cheap political points.
Speaker 4: And I think for the eighty five percent of families
Speaker 4: in this country that rely on public education, this is
Speaker 4: an affront to all of us.
Speaker 3: A federal judge in Boston agreed and said that the
Speaker 3: Trump purge would leave the department unable to perform duties
Speaker 3: required by the law. He usued a preliminary injunction in May,
Speaker 3: blocking the administration from downsizing the department, But yesterday a
Speaker 3: divided Supreme Court lifted that judge's order and allowed Trump
Speaker 3: to resume dismantling the DOE over a blistering dissent by
Speaker 3: the court's three liberals joining me is constitutional law expert
Speaker 3: David super, a professor at Georgetown Law. Trump can't officially
Speaker 3: eliminate the Department of Education, or any department, but can
Speaker 3: he effectively dismantle it?
Speaker 4: He is dumb, so with the Department of Education. I
Speaker 4: don't think it's lawful. I don't even understand a plausible
Speaker 4: legal theory why it might be lawful. But he has
Speaker 4: certainly done that.
Speaker 3: Given the Court's previous rulings for Trump, especially last week's
Speaker 3: ruling that allowed the administration to begin mass firings at
Speaker 3: federal agencies, did this decision come as any surprise At
Speaker 3: this decision about the Department of Education?
Speaker 4: This one did for several reasons. One is it came
Speaker 4: without any explanation at all. What the Court's done in
Speaker 4: prior cases upholding the administration is nitpick the challengers to death,
Speaker 4: finding small, often semantic defect in what they've done. It's
Speaker 4: truing jurisdiction extraordinarily strictly. But in this case they simply
Speaker 4: allowed the president to go forward with activities that seem
Speaker 4: patently illegal without giving any explanation as to why it
Speaker 4: was acceptable.
Speaker 3: Are the Supreme Courts conservatives just ignoring the decisions of
Speaker 3: the lower courts because here the Boston Federal judge said
Speaker 3: the purge would lead the Department unable to perform duties
Speaker 3: required under US law. Are the conservatives just ignoring what
Speaker 3: the district court judges find.
Speaker 4: They seem to be which is inappropriate because on questions
Speaker 4: of fact, appellate courts are supposed to be highly deferential
Speaker 4: to the lower courts. That's true now, that was true
Speaker 4: at the time of the founding, So that should not
Speaker 4: be a difficult proposition for originalists in this case.
Speaker 3: As you said, there's no opinion, so we don't know
Speaker 3: what they based this on. But can we assume that
Speaker 3: they found the government would win on the.
Speaker 4: Merits that's really the only plausible explanation. The lower court's
Speaker 4: decision seems to have met all procedural requirements. The lower
Speaker 4: court was observing the status quo, which is a traditional
Speaker 4: form of an injunction. And clearly there is irreparable injury
Speaker 4: alleged by the plaintiffs that would be impossible to address
Speaker 4: if the department is in fact collapsed. So the court
Speaker 4: must be concluding that plaintiffs will ultimately lose on the merits,
Speaker 4: But it doesn't tell us how, and I can't guess.
Speaker 3: Jessic Sonya Sotomayor, who wrote the dissent on behalf of
Speaker 3: the three liberal justices, said the decision was indefensible, handing
Speaker 3: the president the power to repeal statutes by firing all
Speaker 3: those necessary to carry them out. Do you agree with
Speaker 3: her dissent.
Speaker 4: I'm afraid I do. The Supreme Court has talked in
Speaker 4: other settings about the effects of actions. When it found
Speaker 4: the president couldn't be criminally prosecuted for actions taken in office,
Speaker 4: the Court couldn't find anything in a constitution or statute
Speaker 4: that supports that. What the Court said is the effect
Speaker 4: of this who would be to weaken the president too much? Well,
Speaker 4: the effect of what the President has done to the
Speaker 4: Department of Education is to collapse the department. And there's
Speaker 4: a lower court that heard a great deal of evidence
Speaker 4: that has reached that conclusion. It's disturbing that the Supreme
Speaker 4: Court is not recognizing those effects when it was so
Speaker 4: eager to do so in other cases.
Speaker 3: Since April, the Supreme Court has signed with Trump every
Speaker 3: time he made an emergency request. That's fifteen times, on
Speaker 3: issues ranging from immigration and the firing of federal workers
Speaker 3: to dismissing transgender service members from the military. Is that
Speaker 3: a contrast to the way the Supreme Court treated President Biden.
Speaker 4: It's a contrast the way they treated President Biden, who
Speaker 4: had many of his most important policies and joined from
Speaker 4: day one, including policies that would have been much easier
Speaker 4: to unwind if they were ultimately found unlawful than, for example,
Speaker 4: destroying the Education Department or destroying USAID. This is also
Speaker 4: more deferential than we saw in the first few months
Speaker 4: of this administration, which is even more disturbing.
Speaker 3: I mean, two years ago, the same six Conservatives kept
Speaker 3: President Biden's cancelation of student loans on hold while they
Speaker 3: considered it on the merits docket and then found he
Speaker 3: overstepped his authority. Can you hazard a guess as to
Speaker 3: why they're giving Trump everything he wants? Are they just
Speaker 3: throwing up their hands and saying he's the president?
Speaker 4: Well, the Chief Justice has long been known for wanting
Speaker 4: to present as united a cord as possible, and the
Speaker 4: Chief Justice in the first month of the administration was
Speaker 4: able to get some of his conservative colleagues to join
Speaker 4: him in the liberals in reigning in the excesses of
Speaker 4: this administration. I'm guessing that the Chief Justice has reached
Speaker 4: the point of despairing of getting his colleagues to join
Speaker 4: him and is not eager to override the administration on
Speaker 4: bear five four or six three votes.
Speaker 3: Chump and Education Secretary Linda McMahon have repeatedly said that
Speaker 3: this is going to return responsibility for education to the States.
Speaker 3: But don't the states already have you know the brunt
Speaker 3: of responsibility for education?
Speaker 4: Of course they do. Education in this country's overwhelmingly state funded,
Speaker 4: even more overwhelmingly state controlled. The Department of Education has
Speaker 4: been limited to providing additional funds where state and local
Speaker 4: resources are insufficient and providing things that are more efficiently
Speaker 4: purchased on the national level, such as curriculums such as
Speaker 4: guidance and sharing of best practices. The Department of Education
Speaker 4: is alaw of the least intrusive federal agencies, so the
Speaker 4: statement doesn't make very much them.
Speaker 3: The Trump administration says they want to return education to
Speaker 3: the States, but yesterday, twenty four states and the District
Speaker 3: of Columbia sued the administration forholding close to seven billion
Speaker 3: dollars in federal funding for education programs. North Carolina Attorney
Speaker 3: General Jeff Jackson said the consequences could be dire for
Speaker 3: American students.
Speaker 1: The effect is going to be massive, and it's going
Speaker 1: to be immediate. We estimate it's roughly one hundred and
Speaker 1: sixty five million dollars to the state. It's going to
Speaker 1: result in roughly one thousand educators being laid off. This
Speaker 1: is plainly against the laws, against the Constitutions, against the
Speaker 1: Impoundment Act. From a legal standpoint, this is not a
Speaker 1: hard case.
Speaker 3: So the Trump administration's actions seem to be a little contradictory.
Speaker 4: Yes, which suggests that this is more of a nuilist
Speaker 4: approach than a different philosophy. You willlect a different president.
Speaker 4: You should expect that they'll pursue a different philosophy. But
Speaker 4: so far what we're seeing here is or wrecking ball.
Speaker 4: We know they're against lots and lots of things, it's
Speaker 4: not clear what they're for.
Speaker 3: I've been talking to Georgetown law professor David super Trump
Speaker 3: has argued in the past that, you know, the Education
Speaker 3: Department is unnecessary and also a tool of woke culture.
Speaker 3: And the agency is charged with enforcing civil rights laws
Speaker 3: that bar discrimination and federally funded schools, and that office
Speaker 3: is going to be hit particularly hard by this. It's
Speaker 3: going to lose about half its staff and seven of
Speaker 3: eleven regional offices. I mean, do you think that's part
Speaker 3: of the goal here to eliminate that.
Speaker 4: It's hard to know because this administration has used civil
Speaker 4: rights allegations to buttress its attack on colleges and universities.
Speaker 4: So it's clearly interested in using the Education Department as
Speaker 4: a club. If you want to talk about limiting the
Speaker 4: role of federal government, having it try to micromanage how
Speaker 4: a university makes faculty appointments and selects people for tenure.
Speaker 4: It's a huge overreach beyond the traditional role of federal government.
Speaker 4: And that was not done under Joe Biden or Barack Obama.
Speaker 4: That's something that this administration has innovated. So they're not
Speaker 4: very consistent about whether they want a strong or a
Speaker 4: weak education department.
Speaker 3: There are still cases being litigated about the cuts to
Speaker 3: staff at various agencies. Does this Supreme Court decision have
Speaker 3: any effect on other litigation against the administration.
Speaker 4: Well, it's not going to be precedent in other cases
Speaker 4: because we have no idea what the ruling is. So
Speaker 4: the immediate effect is just on the Department of Education.
Speaker 4: If I was a lawyer litigating one of the other
Speaker 4: cases or a judge deciding one of the other cases,
Speaker 4: I would just shrug my shoulders and keep doing what
Speaker 4: I'm doing, because the Court hasn't told us what it
Speaker 4: does and does not. Like the ruling earlier in which
Speaker 4: it overturned injunctions against mass firings at the Department of
Speaker 4: State and various other agencies did provide a little bit
Speaker 4: of a reasing. They said, you can't invalidate an executive
Speaker 4: order that purports to require all laws to be followed
Speaker 4: on its face. You can take action if the actual
Speaker 4: implementation of that executive order violates law. So it's found
Speaker 4: that the lower court had acted prematurely. That will certainly
Speaker 4: shape how these other cases proceed and will direct the
Speaker 4: parties and the courts to focus on implementation rather than
Speaker 4: the plain language of the executive orders. I've been urging
Speaker 4: people who are questioning the administration's actions to look beyond
Speaker 4: the executive orders to the actual implementation, and the Court
Speaker 4: is giving people a strong nudge in that same direction.
Speaker 3: Yeah, because his executive order here said to the maximum
Speaker 3: extent appropriate and permitted by law. I guess they put
Speaker 3: in permitted by law on all these executive orders just
Speaker 3: as a hedge.
Speaker 4: Not quite all of them. That's certainly not in his
Speaker 4: executive order about birthright citizenship, it's not in a few
Speaker 4: of the others, but in the bulk of them, they
Speaker 4: do have this boilerplate about the extent allowed by appropriate law.
Speaker 4: Even its executive order against THEI only forbids illegal DEI programs.
Speaker 3: So all these case is the Supreme Court is ruling
Speaker 3: this way as the litigation is proceeding. But in a
Speaker 3: lot of these cases, once the litigation is over, the
Speaker 3: Department may already have been dismantled.
Speaker 4: The rationale, I suppose is that the people could be
Speaker 4: hired back to perform those functions. The likelihood is that
Speaker 4: if you hire people off the street without institutional knowledge
Speaker 4: and experience, the new workers won't be nearly as good
Speaker 4: as the old workers you lost. But the ideas that
Speaker 4: there will be someone performing these functions, even if they're
Speaker 4: not very good at it.
Speaker 3: Any final thoughts, any lessons to be learned from history
Speaker 3: relating to this.
Speaker 4: There's one thing that strikes me about this that we
Speaker 4: didn't talk about, which is that this court has told
Speaker 4: us again and again that it's originalist. The fourth law
Speaker 4: that Congress passed after the ratification of the Constitution was
Speaker 4: to start creating cabinet departments. So the first Congress understood
Speaker 4: that it got to choose what cabinet departments we would have.
Speaker 4: And you would think an Originals court would pay special
Speaker 4: attention to that and not allow a president to make
Speaker 4: these decisions. If George Washington couldn't decide what cabinet departments
Speaker 4: we would have, Shirley Donald Trump can't.
Speaker 3: Thanks so much for joining me, David. That's Professor David
Speaker 3: super of Georgetown Law. And that's it for this edition
Speaker 3: of the Bloomberg Law Show. Remember you can always get
Speaker 3: the latest legal news on our Bloomberg Law Podcast. You
Speaker 3: can find them on Apple Podcasts, Spotify, and at www
Speaker 3: dot bloomberg dot com, slash podcast slash Law, and remember
Speaker 3: to tune into The Bloomberg Law Show every weeknight at
Speaker 3: ten pm Wall Street Time. I'm June Grosso and you're
Speaker 3: listening to Bloomberg