Preliminary Hoisting on Their Own Petard

A federal judge on Thursday blocked President Trump’s executive order aimed at dismantling the Education Department and ordered officials to reinstate thousands of fired employees in a ruling that marked at least a temporary setback for the president and his plans.

The decision from Judge Myong J. Joun of the U.S. District Court for the District of Massachusetts was a preliminary injunction, meaning it will remain in force until the case is resolved or a higher court overturns it.

The injunction was requested by a pair of school districts in Massachusetts, the American Federation of Teachers and 21 Democratic state attorneys general who sued Mr. Trump in March to block his executive order and reverse a massive round of layoffs. Judge Joun agreed with their argument that the actions equated to an illegal shutdown of the agency, which only Congress can abolish.

“The record abundantly reveals that defendants’ true intention is to effectively dismantle the department without an authorizing statute,” Judge Joun wrote in his order.

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.

Mr. Trump’s order contains potentially contradictory guidance for Ms. McMahon. On the one hand, the order directs her to facilitate the elimination of the agency. On the other, she is also mandated to rigorously comply with federal law. The order offers no guidance on how to square those two points.

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.”

A department without enough employees to perform statutorily mandated functions is not a department at all. This court cannot be asked to cover its eyes while the Department’s employees are continuously fired and units are transferred out until the Department becomes a shell of itself.

Secretary McMahon claimed that the mass firings were meant to improve “efficiency, accountability, and ensuring that resources are directed where they matter most.” Similarly, President Trump maintained that his administration only “want[ed] to cut the people that aren’t working or . . . doing a good job” and “keep[] the best people.” Yet Secretary McMahon also admitted that the terminations were intended to dismantle the Department, explaining that “[President Trump’s] directive to [her], clearly, is to shut down the Department of Education.” Moreover, on the same day that the RIF was initiated, Secretary McMahon told Laura Ingraham of Fox News that the workforce reductions were the first steps in shutting down the Department.