Continuing to allow President Trump to take sweeping steps to shutter federal government functions, the Supreme Court on Monday permitted the firing of half of the staff of the U.S. Department of Education and other moves toward its total shutdown – without permission from Congress.
Though the Court acted only temporarily, the completely unexplained order set aside a lower court judge’s order to re-hire the fired workers and to make sure that the Department could continue to perform the tasks given to it by Congress.
The Department, created 46 years ago by Congress, is a huge source of funding for the nation’s education system, from kindergarten to graduate school. For public schools below the college level, the agency paid out more than $100 billion in a recent year – 11 percent of their funding. At the college level, more than $120 billion was distributed in student aid in a year.
The vote on Monday’s Court action was 6-to-3, with the conservative majority issuing a single-paragraph order and the three liberal Justices issuing a scalding 20-page dissent. The dissenters argued that the order “will unleash untold harm, delaying or denying educational opportunities and leaving students to suffer from discrimination, sexual assault, and other civil rights violations without the federal resources Congress intended.”
The Department of Education has been a target of conservative policy critics for years. In fact, when the agency was only three years old, in 1982, President Ronald Reagan urged Congress to abolish it, but that proposal went nowhere.
As a candidate last year, Donald Trump repeatedly vowed to abolish the Department. On becoming President, he took a number of steps with the specific declared aim of ending its existence. When he nominated Linda McMahon as Education Secretary, he told her to act to put herself out of a job.
On her own or in carrying out added presidential orders, McMahon acted, saying she was moving to fulfill her agency’s final mission – a complete shutdown. On March 11, in office only a week, she ordered a “reduction in force” that would reduce the Department’s workforce from 4.133 to 2,183. She also ordered the layoff of the staffs of entire programs or sub-agencies.
Trump also followed up, issuing a formal order on March 25 for McMahon to take all steps necessary to close the Department and return all of its functions to the states. He also ordered the transfer of some of the Department’s functions to other federal agencies.
The firings actually took place overnight, leading to a challenge in lower federal courts. A federal judge in Boston, reacting to a lawsuit by 20 state governments, ruled in May that the firings and the closing down of agency functions probably has violated the Constitution, including the President’s duty to “faithfully execute” the laws and the concept of separation of powers between the government branches, and also likely violated federal law governing administration of federal agencies.
The judge’s order was temporary, to restore the pre-Trump situation while the lawsuit continued in the courts. A federal appeals court declined to put the judge’s order on hold, leading the Trump Administration to file an emergency request to the Supreme Court to allow everything that the President and the Secretary had done, as the case proceeds in the courts.
While the Monday order was only a temporary one, the key factor that the Court considers when issuing such an order is a preliminary prediction that, when the court case reaches its final conclusion, the government would likely win. The order thus amounted to at least a temporary win for the government.
Without an explanation, the majority kept to itself its rationale for restoring the steps toward abolition of the Department. However, the action fit into a developing pattern in which the majority has more often than not ruled for the Trump Administration in a series of orders since the President began his second term. It also fits into a broader pattern of a Court majority that favors a strong Presidency – a pattern that included last summer’s sweeping ruling giving Trump broad immunity to criminal prosecution for his official actions.
The order did not mention the votes of the Justices, but it appeared to have the support of Chief Justice John G. Roberts, Jr., and Justices Samuel A. Alito, Jr., Amy Coney Barrett, Neil M. Gorsuch, Brett M. Kavanaugh and Clarence Thomas.
Justice Sonia Sotomayor wrote the dissention opinion, which was joined by Justices Ketanji Brown Jackson and Elena Kagan. “Only the Congress,” Sotomayor wrote, “has the power to abolish the Department of Education.”
While the majority approved an order that is limited in time, it clears the way for the Administration to do what it has undertaken as along as it takes for the lower courts to decide the states’ challenge and for the Supreme Court to issue a final decision. That process will take months.
The dissenting Justices argued that the order “hands the Executive the power to repeal statutes by firing all those necessary to carry them out. The majority is either willfully blind to the implications of its ruling or naive, but either way the threat to our Constitution’s separation of powers is grave.”
No part of the majority’s order sought to answer the dissenters’ criticism.
