Defenders of the Department of Education are turning to the courts to save it after President Trump signed an executive order to abolish it and on Friday said he would move some of its most critical loan programs to the Small Business Administration (SBA).
Trump cannot abolish the department without an act of Congress, and it is not clear that legislation doing so could get through Congress.
Sen. Bill Cassidy (R-La.) nonetheless on Friday said he would seek legislation to end the department, even as Trump through executive action attempts to hollow out a government agency that had more than 4,000 employees just months ago.
“I expect that any actions to shutter the agency or to dismantle it will be challenged in the courts, and those challenges will prevail,” Julie Margetta Morgan, a former deputy under secretary of Education during the Biden administration, told The Hill earlier this month.
“I think the other thing to think about here is that the decision to dismantle the Department of Education is incredibly unpopular, and people need to continue to voice their concerns about that and their displeasure with the Trump administration’s efforts and to hold policymakers accountable,” she added.
“See you in court” was a common theme among opponents as Trump ordered Education Secretary Linda McMahon to dismantle the department as far as she is legally allowed without an act of Congress.
The White House says “critical functions” of the department will still be met, with the president announcing Friday that he is shifting “the student loan portfolio” to the SBA and programs related to students with disabilities to the Department of Health and Human Services.
But the department is already facing pushback for its efforts to self-eliminate, including laying off half its staff earlier this month.
The legal challenges to Trump and McMahon’s moves could quickly stack up. The courts have already hit Trump with multiple setbacks two months into his term, though the White House has voiced disdain for the judges ruling against his agenda.
“The courts are upholding the rule of law, that is their role. At the end of the day, we are the United States, because we abide by the rule of law. This administration has shown that it doesn’t respect the rule of law; they are aiming more toward an autocracy, which is radically outside American values,” said Patrice Willoughby, chief of policy and legislative affairs for the NAACP.
“The department’s useful functions … will be preserved, fully preserved,” Trump said during Thursday’s signing ceremony, surrounded by children at school desks and standing in front of a row of state flags. Specifically referring to Pell Grants, Title I funding and programs for students with disabilities, he added, “They’re going to be preserved in full and redistributed to various other agencies and departments.”
“But beyond these core necessities, my administration will take all lawful steps to shut down the department. We’re going to shut it down and shut it down as quickly as possible.”
The potential lawsuits would add to the growing fight the Trump administration is having with the judiciary as many of his executive orders have been halted or reversed by federal judges.
Trump is already calling for the impeachment of one judge who has displeased him, drawing a rare rebuke from Chief Justice John Roberts.
“I think there’s an expectation that there will be a lawsuit, and this will go before the courts. […] It takes a long time, and there’s a real question on whether this administration wants to even comply with the court’s decision. They seem to do it when it’s on their behalf, but less so when the decision goes against them,” said Denise Forte, president and CEO at The Education Trust.
Johnathan Smith, chief of staff and general counsel for National Center for Youth Law, previously told The Hill his group was preparing to use “all the tools at our disposal, including litigation here, to respond” if moves were made to close the department.
And Keri Rodrigues, the president of the National Parents Union, said parents are watching the moves at the Department of Education closely and “the minute” the agency doesn’t comply with congressional statute, the department “will be challenged in court.”
In further dismantling the federal agency, McMahon will have to walk a tight rope in order to ensure it is complying with congressional requirements, and even some in conservative circles have expressed skepticism at the speed at which the administration is moving.
“There are good reasons to streamline operations at the department and even to shut it down entirely, but efforts to date have been too hasty. The cuts we’ve already seen will likely be disruptive in ways that weren’t expected. Department leadership should take pains to carry out this order cautiously, ensuring that programs mandated by legislation are transferred to other agencies before the staffing reduction makes them impossible to administer effectively,” said Beth Akers, senior fellow at the American Enterprise Institute.
Trump could theoretically have an easier time in the courts if Congress is able to pass a law either eliminating the department or allowing for it to be weakened, but such a measure would require some Democratic support to clear the Senate, and not even all Republicans are on board.
“My sense is that congressional Republicans really don’t want anything to do with this idea of dismantling the department right now […] I just don’t think this is the hill that anyone wants to die on today, other than President Trump. So, I don’t think he’s going to get the support from Congress that would be needed,” Akers said.
“I would say in practice, though, there’s a lot of dismantling that can be done under the existing authority of the administration, and it may be de facto dismantled, even if it still exists in name,” she added.
