WASHINGTON – President Donald Trump would like to erase the Education Department, but he can’t do that with just a stroke of the pen.
Trump has repeatedly argued the department should be terminated, a long-held priority in Republican circles since Congress created it in 1979. The hitch is that presidents can’t single-handedly abolish departments that lawmakers created by statute, according to experts. The same goes for many of its programs, such as Title I for children living in poverty and the Individuals with Disabilities Education Act.
“We’re going to move the Department of Education,” Trump told reporters Wednesday at the White House. “We’re going to move education into the states, so that the states − instead of bureaucrats working in Washington − can run education.”
The statutes mean Congress must agree to eliminate the department completely or move its funding programs to another agency. Instead, the administration laid off or bought out nearly half the department on Tuesday. States challenged the firings in federal court and teachers unions vowed to fight “tooth and nail” by arguing the cuts could be ruinous.
The battle over whether Congress will be involved in cutting or changing federal agencies would go far beyond the Education Department. The same Thursday deadline that Trump set in an executive order for departments to submit plans to significantly reduce their staffing also directed them to determine which agencies are required by law.
“Within 30 days of the date of this order, Agency Heads shall submit to the Director of the Office of Management and Budget a report that identifies any statutes that establish the agency, or subcomponents of the agency, as statutorily required entities,” Trump’s order Feb. 11 said.
Education Secretary Linda McMahon acknowledged the uncertainty about what course cuts her department would take during her Senate confirmation hearing Feb. 13.
“Certainly there are departments that I believe that are in Department of Education by statute, and those have to be looked at,” McMahon said.
The legal question for judges to weigh is how many education functions could be ended or wheeled out to other agencies without running afoul of laws that say they belong within the Education Department. Supporters of the department contend the administration can’t end or move statutory programs without congressional support.
“Donald Trump and Linda McMahon know they can’t abolish the Department of Education on their own but they understand that if you gut it to its very core and fire all the people who run programs that help students, families, and teachers, you might end up with a similar, ruinous result,” Sen. Patty Murray of Washington, the top Democrat on the Appropriations Committee, said in a statement Tuesday.
Trump campaigned to end the Education Department. He favors sending policy decisions to the states and wants to offer more students the choice to attend non-public schools.
“We’re going to close it up,” Trump said in a 2023 campaign video. “We’re going to send it all back to the states.”
McMahon described her job March 3 as a “final mission” to overhaul the department. She told Fox News on March 7 that Trump wants her to end her own job.
“He couldn’t be any more clear than when he said he wants me to put myself out of a job,” McMahon said.
Randi Weingarten, president of the American Federation of Teachers, argued the department is legally required to distribute funds for 26 million children living in poverty under Title I, 7.5 million with disabilities under the Individuals with Disabilities Act, 10 million for college aid under Pell Grants and 12 million for career education under Perkins grants.
“Any attempt by the Trump administration or Congress to gut these programs would be a grave mistake, and we will fight them tooth and nail,” Weingarten said in a statement.
The battle over whether the Trump administration or Congress will set spending priorities already targeted the U.S. Agency for International Development and Consumer Finance Protection Board for dismantling before turning to the Education Department.
Congress traditionally sets funding priorities through legislation authorizing and appropriating money for agencies. Trump has argued the executive branch has leeway to cut or redirect spending to save money or make government more efficient.
While the two branches aren’t in direct conflict yet, Democratic state officials, unions, workers and advocacy groups are filing dozens of lawsuits as proxies for the preeminence of Congress in spending battles. USAID and CFPB are being dismantled as multiple lawsuits seek to salvage them.
Former President John F. Kennedy created USAID by executive order under the 1961 Federal Assistance Act. The agency that provides humanitarian assistance was recognized as an arm of the State Department under the 1998 Foreign Affairs Reform and Restructuring Act. Annual spending bills have continued to recognize it.
But Elon Musk, a senior adviser to Trump recommending agency and staff cuts, posted on social media Feb. 3 that he “spent the weekend feeding USAID into the wood chipper.”
Secretary of State Marco Rubio boasted on social media March 10 that USAID had canceled 83% of its programs. The remaining 1,000 out of 5,200 contracts will be administered more effectively “in consultation with Congress,” he wrote.
Out of USAID’s workforce of 4,800 staffers when Trump took office, his administration placed 4,212 on administrative leave by Feb. 7, according to U.S. District Judge Carl Nichols, who is presiding over one of the lawsuits fighting the layoffs. That left about 611 staffers “essential to carry out its statutory functions,” Nichols wrote.
Congress created the CFPB – under a 2010 law in response to the financial crisis that was passed two years earlier – to protect consumers from banks.
When the Trump administration tried to fire 200 of its workers, the National Treasury Employees Union sued and a judge temporarily blocked the dismissals. A witness testified anonymously Tuesday that the administration seeks to fire 1,200 workers, or nearly the entire agency.
Musk posted “CFPB RIP” on social media Feb. 7.
But the acting CFPB director, Russ Vought, will continue agency activities “required by law,” according to a government court filing. CFPB leaders remain committed to having the agency “perform its statutory obligations,” the filing said.
As signaled in the court filings, the key to how agencies will be treated in Trump’s government overhaul is whether they were created by statute or executive order.
With a swipe of his pen, Trump ordered the U.S. to withdraw from the World Health Organization and ended diversity, equity and inclusion programs − and their staffing − across the government. He also ordered the elimination of the Presidio Trust, the Inter-American Foundation, the U.S. African Development Foundation, the U.S. Institute of Peace and the Federal Executive Institute.
But agencies Congress created by statute require legislation to change or terminate. The challenge revealed in early lawsuits is untangling how many agencies were created through a combination of statutes and executive orders.
“Some agencies are created by law, some are created by executive order and some by department order,” said David Lewis, a political science professor at Vanderbilt University who has written books about the presidency and federal bureaucracy. “Sometimes they will just give that authority to an existing agency and that agency will create the necessary institutions and structure to carry out that responsibility. In other cases, Congress writes in more detail about what they want the bureaucracy to look like.”
Senators asked McMahon during her confirmation hearing about her plans for downsizing the department. The chairman, Sen. Bill Cassidy, R-La., asked directly if she would need an act of Congress to close the department.
“Certainly, President Trump understands that we’ll be working with Congress. We’d like to do this right,” McMahon said, adding it “certainly does require congressional action.”
McMahon said she would “have to pay particular attention” to statutes. But she said she would examine whether there were “other agencies where parts of the Department of Education could better serve our students and our parents on a local level.”
She was cagier when Sen. Andy Kim, D-N.J., asked whether the executive branch “can do as they please” with parts of the department not codified by statute.
“Well, I think that I would like to look into that more,” McMahon said.
The Education Department was created by statute in 1979. Many of its most prominent programs were created by statute, too:
Despite those statutes, Musk posted on social media Feb. 7: “What is this ‘Department of Education’ you keep talking about? I just checked and it doesn’t exist.”
The department announced Tuesday it cut about half its workforce, from 4,133 when Trump took office to about 2,183 through layoffs and buyouts. Laid-off workers will be placed on leave March 21 and workers under collective bargaining agreements will be paid through June 9 and receive severance for their length of service.
The lawsuit by Democratic attorneys general in 20 states and the District of Columbia that seeks to block the firings said McMahon doesn’t have the authority to eliminate so many workers through what is called a reduction-in-force (RIF).
“The RIF is so severe and extreme that it incapacitates components of the Department responsible for performing functions mandated by statute, effectively nullifying those mandates,” the lawsuit said. “She is not permitted to eliminate or disrupt functions required by statute, nor can she transfer the Department’s responsibilities to another agency outside of its statutory authorization.”
The conflict over the Education Department echoes another Republican effort from former President Ronald Reagan’s administration during the 1980s, when Republicans sought to overhaul the Environmental Protection Agency.
Part of the fight then with Congress involved then-EPA Administrator Anne Gorsuch Burford abolishing the office of enforcement and her implementation of the Superfund law. Lawmakers investigated and the House cited her for contempt, although the Justice Department didn’t prosecute her. She served from only 1981 to 1983.
Lewis, the professor who studies the relationship between the president and the bureaucracy, said a difference in the 1980s was that a long-serving Democratic majority in Congress had intimate knowledge of agencies and a lot more power to protect them.
“This far surpasses what happened during the Reagan administration, in terms of disputes,” Lewis said of Trump’s proposals to overhaul the executive branch. “Reagan also didn’t push as hard as Trump has, in these types of moves.”
