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The News That Isn’t News
I’ve been saying for nearly a month that the US Department of Education (ED) will not be eliminated anytime soon and that instead the rhetoric is cover while the Trump Administration cuts ED back to what it considers the statutory requirements while shifting what it can “back to the states” or migrating to other agencies. This week I got nervous in the lead up to the Executive Order that I would have to write a mea culpa post and admit that there were serious plans to actually eliminate ED.
No need for a mea culpa, and there actually was no real news yesterday. Instead we see the same pattern and the same folks reacting as predicted. We already knew that the cover language is around eliminating ED but that detailed language tells a different story.
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 … [snip]
Nothing in this order shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executive department or agency, or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
Major changes are underway, but elimination is a distraction to what is likely to happen in the next few years.
Real Issue #1
The media coverage typically confirms that eliminating a federal agency cannot be done without congressional approval, but I think that is addressing the wrong question. The more relevant issue is whether the Trump Administration can allocate functions to other agencies on its own. This question was addressed by the Congressional Research Service in the first Trump Administration.
Some, though not necessarily all, of the Trump Administration’s reorganization proposals appear likely to require authorizing legislation from Congress. For instance, proposals to transfer an entity or function vested by Congress in a particular agency to another agency, or to combine statutorily created entities into a new department, likely require new legislation authorizing the action.
That answer is not binding, but it is highly likely that shifting functions to another agency also requires congressional action, but that is probably a non-starter at least for the next two years due to needing 60 votes in the Senate. I could see this question being tested but not actually leading to significant change in the near term.
Meaning that the real focus is on the downsizing and interpretation of statutory functions.
Real Issue #2
The NY Times coverage of yesterday’s event called out what is actually the second key issue, even if the article doesn’t treat it that way.
Mr. Trump said Thursday that the department would continue to provide critical functions that are required by law, such as the administration of federal student aid, including loans and grants, as well as funding for special education and districts with high levels of student poverty. The department would also continue civil rights enforcement, White House officials said.
Mr. Trump called those programs “useful functions,” and said they’re going to be “preserved in full.” He added that some functions would be “redistributed to various other agencies and departments that will take very good care of them.”
What people should be tracking is what ED is required to do by law and see A) whether ED meets the requirement, B) how it interprets the law in the actual deliverables, and C) what specific actions ED takes to enforce regulations. I’ve already described the cuts to NCES and what data products we should expect to see and when. But there are others to track that will be much more meaningful than questions on ED elimination (even if bills are introduced to that effect).
I’m really setting up that mea culpa post if I’m wrong.
Real Issue #3
The other issue to track is the looming disaster of student loan return-to-repayment, where nearly one-fifth of borrowers are in default or delinquent.
