Trump and Congress Have a Right and a Duty To Kill the Department of Education
The feds have no constitutional authorization to meddle in education.
The economist Milton Friedman wrote that nothing is so permanent as a temporary government program. It's true that once an agency is funded and fills its cubicles with bureaucrats, advocates treat its existence as a necessity and any challenge to its continued existence as heresy no matter how well the world carried on prior to its establishment or how poorly it has performed. But we see a challenge to the usual rule in President Donald Trump's executive order to wind down the federal Department of Education. Fully eliminating the useless 45-year-old bureaucracy will require an act of Congress, but there's good reason to believe the president has room to maneuver until then.
"The Secretary of Education shall, to the maximum extent appropriate and permitted by law, take all necessary steps to facilitate the closure of the Department of Education and return authority over education to the States and local communities while ensuring the effective and uninterrupted delivery of services, programs, and benefits on which Americans rely," Trump's March 20 order said in part, after citing examples of the department's expense and shortcomings.
The Department of Education's History of Meddling and Failure
These failures include the Department of Education's January admission that "not only did most students not recover from pandemic-related learning loss, but those students who were the most behind and needed the most support have fallen even further behind." Specifically, "in 2024, the average reading score for the nation at grade 8 was 2 points lower than 2022 and 5 points lower compared to 2019," according to the department. In mathematics, "the average score at eighth grade was not significantly different from 2022 but was 8 points lower compared to 2019."
As Reason's Emma Camp reported, "In this year's test, almost 1 in 4 eighth graders were 'below NAEP Basic' in math, meaning that they didn't even have 'partial mastery' of the skills necessary to succeed in eighth-grade math. Around 1 in 3 eighth graders were below 'NAEP Basic' in reading."
In truth, the federal Department of Education, while representing around 4 percent of federal spending, provides only a fraction of the funding for public schools; 92 percent of the money comes from states and localities. That said, federal bureaucrats still have an enormous impact because "the federal government uses a complex system of funding mechanisms, policy directives, and the soft but considerable power of the presidential bully pulpit to shape what, how, and where students learn," as Brendan Pelsue wrote in 2017 for the Harvard Graduate School of Education's Ed. Magazine.
That is, the federal Department of Education produces mostly red tape, nudges, and bureaucrats, and it encourages further bureaucracy at the state and local level to ensure compliance. The results are almost uniformly unsatisfactory. Students are fleeing public schools in favor of alternatives including private schools, charter schools, and homeschooling.
As I've written before, the Department of Education was born as a political payoff by the administration of then-President Jimmy Carter to the National Education Association in return for the union's endorsement during the 1976 election campaign. Carved from the Department of Health, Education, and Welfare by Congress, the Department of Education came into existence in 1980.
This explains Trump's hedge that, in winding down the department, the Secretary of Education should act "to the maximum extent appropriate and permitted by law." As officials of the executive branch, the president and his appointees can shift spending and priorities and slow or end activities they consider harmful. But when it comes to sowing salt into the ground where the Department of Education stands so it doesn't reemerge under a future administration, Congress will have to undo its own creation. Until that happens, though, the president has some leeway to act; he may even have an obligation to do so.
President Has No Right To Engage in Unconstitutional Actions
"The president takes an oath to 'preserve, protect, and defend the Constitution of the United States,'" Thomas A. Berry, director of the Cato Institute's Robert A. Levy Center for Constitutional Studies, wrote last week. "As constitutional law scholar Sai Prakash has explained, that oath includes a duty not to enforce statutes that the president has determined in good faith to violate the Constitution."
"Properly understood, this duty requires a president not to enforce unconstitutional statutes or powers even after the Supreme Court has wrongly upheld them," he added.
Berry cited the example of Thomas Jefferson and the Sedition Act. Jefferson considered the law a violation of constitutional protections for free speech and authored the Kentucky Resolution, asserting states' rights to nullify such laws. Once he won the presidency, he halted ongoing prosecutions under the by-then-expired law and pardoned those already convicted. Berry contrasts this refusal to exercise wrongful power with insistence on exercising power even if the courts find it unconstitutional: "The president has no right to ignore that ruling and enforce the statute anyway just because he disagrees. But it is a very different thing to refuse to enforce a law that the courts have upheld."
Basically, presidents have the discretion to refuse to wield power they consider illegitimate. Jefferson pardoned people for criticizing the government because he recognized the law authorizing such police action to be wrong. Trump, Berry says, could similarly refuse to allow a federal department unmoored from the Constitution to continue to spend money and to tell states and localities how to run their schools.
Department of Education 'Not Authorized by the Constitution'
"The vast majority of functions carried out by the Department of Education are not authorized by the Constitution," observes Berry. "That is because the Constitution grants the federal government only limited, enumerated powers, none of which encompass education policy."
He adds that this doesn't mean everything the Department of Education does is unconstitutional. Authorization for elements of the department's role in ensuring equal protection may come from the Fourteenth Amendment, for example. But most of its activities have no constitutional foundation.
So, the Trump administration should be able, at least, to discontinue activities unauthorized by the Constitution. Can it do more? Secretary of Education Linda McMahon has been cautious in her pronouncements about what the administration can and cannot do, but she oversaw the dismissal of roughly half of the department's workforce. Obviously, the remaining bureaucracy will be able to do less. Truly abolishing the Department of Education still requires Congress, but it may be a hollow husk by the time legislators act.
While we wait for that day, let's consider that the federal government engages in an awful lot of activity that isn't authorized by the Constitution, and that it has no business doing. We can work on a list.
