SCOTUS Repeated Rulings for Trump

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2:18Trump said that the essential services provided by the department will be picked up by other agencies. And guess who else? All we have to do is get the students to get guidance from the people that love them and cherish them, including their parents. by the way, who will be totally involved in their education along with the boards. Well, 20 Democratic state attorneys general sued, arguing that the administration's actions to dismantle the DOE are illegal and unconstitutional because only Congress has the authority to eliminate the department. Here's New Jersey Attorney General Matthew Plotkin.

2:56They're hurting our kids to score cheap political points. And I think for the 85 percent of families in this country that rely on public education, this is an affront to all of us. A federal judge in Boston agreed and said that the Trump purge would leave the department unable to perform duties required by the law. He issued a preliminary injunction in May, blocking the administration from downsizing the department. But yesterday, a divided Supreme Court lifted that judge's order and allowed Trump to resume dismantling the DOE. over a blistering dissent by the court's three liberals. Joining me is constitutional law expert David Super, a professor at Georgetown Law.

3:39Trump can't officially eliminate the Department of Education or any department, but can he effectively dismantle it? He has done so with the Department of Education. I don't think it's lawful. I don't even understand a plausible legal theory why it might be lawful, but he has certainly done that. Given the court's previous rulings for Trump, especially last week's ruling that allowed the administration to begin mass firings at federal agencies, did this decision come as any surprise at this decision about the Department of Education? This one did for several reasons. One is it came without any explanation at all.

4:22What the court's done in prior cases upholding the administration is nitpick the challengers to death, finding small, often semantic defects in what they've done, construing jurisdiction extraordinarily strictly. But in this case, they simply allowed the president to go forward with activities that seemed patently illegal without giving any explanation as to why it was acceptable. Are the Supreme Court's conservatives just ignoring the decisions of the lower courts? Because here the Boston federal judge said the purge would leave the department unable to perform duties required under U.S. law.

5:05Are the conservatives just ignoring what the district court judges find? They seem to be, which is inappropriate because on questions of fact, appellate courts are supposed to be highly deferential to the lower courts. That's true now. That was true at the time of the founding. So that should not be a difficult proposition for originalists. In this case, as you said, there's no opinion. So we don't know what they base this on. But can we assume that they found the government would win on the merits? That's really the only plausible explanation. The lower court's decision seems to have met all procedural requirements.

5:47The lower court was preserving the status quo, which is a traditional form of an injunction. And clearly there is irreparable injury alleged by the plaintiffs that would be impossible to address if the department is in fact collapsed. So the court must be concluding that plaintiffs will ultimately lose on the merits, but it doesn't tell us how. And I can't guess. Justice Sonia Sotomayor, who wrote the dissent on behalf of the three liberal justices, said the decision was indefensible. handing the president the power to repeal statutes by firing all those necessary to carry them out. Do you agree with her dissent?

6:32I'm afraid I do. The Supreme Court has talked in other settings about the effects of actions when it found the president couldn't be criminally prosecuted for actions taken in office. us, the court couldn't find anything in the Constitution or statutes that supports that. What the court said is the effect of this would be to weaken the president too much. Well, the effect of what the president has done to the Department of Education is to collapse the department. And there's a lower court that heard a great deal of evidence that has reached that conclusion. it's disturbing that the Supreme Court is not recognizing those effects when it was so eager to do so in other cases.

7:25Since April, the Supreme Court has sided with Trump every time he made an emergency request. That's 15 times on issues ranging from immigration and the firing of federal workers to dismissing transgender service members from the military. Is that a contrast to the way the Supreme Court treated President Biden? It's a contrast to the way they treated President Biden, who had many of his most important policies enjoined from day one, including policies that would have been much easier to unwind if they were ultimately found unlawful than, for example, destroying the education department or destroying USAID.

8:09This is also more deferential than we saw in the first few months of this administration, which is even more disturbing. I mean, two years ago, the same six conservatives kept President Biden's cancellation of student loans on hold while they considered it on the merits docket and then found he overstepped his authority. Can you hazard a guess as to why they're giving Trump everything he wants? Are they just throwing up their hands and saying he's the president? Well, the chief justice has long been known for wanting to present as united a court as possible. And the chief justice in the first month of the administration was able to get some of his conservative colleagues to join him and the liberals in reigning in the excesses of this administration.

9:08I'm guessing that the chief justice has reached the point of despairing of getting his colleagues to join him and is not eager to override the administration on bare 5-4 or 6-3 votes. Trump and Education Secretary Linda McMahon have repeatedly said that this is going to return responsibility for education to the states. But don't the states already have the brunt of responsibility for education? Of course they do. Education in this country is overwhelmingly state-funded, even more overwhelmingly state-controlled. The Department of Education has been limited to providing additional funds where state and local resources are insufficient and providing things that are more efficiently purchased on a national level, such as curriculum, such as guidance and sharing of best practices.

10:08The Department of Education is one of the least intrusive federal agencies, so the statement doesn't make very much sense. The Trump administration says they want to return education to the states. But yesterday, 24 states and the District of Columbia sued the administration for withholding close to$7 billion in federal funding for education programs. North Carolina Attorney General Jeff Jackson said the consequences could be dire for American students. The effect is going to be massive and it's going to be immediate. We estimate it's roughly$165 million to the state. It's going to result in roughly 1 ,000 educators being laid off.

10:51This is plainly against the law. It's against the Constitution. It's against the Impoundment Act. From a legal standpoint, this is not a hard case. So the Trump administration's actions seem to be a little contradictory. Yes, which suggests that this is more of a nullist approach than a different philosophy. You elect a different president, you should expect that they'll pursue a different philosophy. But so far, what we're seeing here is a wrecking ball. We know they're against lots and lots of things. It's not clear what they're for. I've been talking to Georgetown Law Professor David Super.

11:25Trump has argued in the past that, you know, the education department is unnecessary and also a tool of woke culture. And the agency is charged with enforcing civil rights laws that bar discrimination in federally funded schools. And that office is going to be hit particularly hard by this. It's going to lose about half its staff and seven of 11 regional offices. I mean, do you think that's part of the goal here, to eliminate that? It's hard to know because this administration has used civil rights allegations to buttress its attack on colleges and universities. So it's clearly interested in using the education department as a club.

12:12If you want to talk about limiting the role of federal government, having it try to micromanage how a university makes faculty appointments and selects people for tenure is a huge overreach beyond the traditional role of federal government. And that was not done under Joe Biden or Barack Obama. That's something that this administration has innovated. So they're not very consistent about whether they want a strong or a weak education department. There are still cases being litigated about the cuts to staff at various agencies. Does this Supreme Court decision have any effect on other litigation against the administration?

12:53Well, it's not going to be precedent on other cases because we have no idea what the ruling is. So the immediate effect is just on the Department of Education. If I was a lawyer litigating one of the other cases or a judge deciding one of the other cases, I would just shrug my shoulders and keep doing what I'm doing because the court hasn't told us what it does and does not like. The ruling earlier in which it overturned injunctions against mass firings at the Department of State and various other agencies did provide a little bit of a reasoning. They said you can't invalidate an executive order that purports to require all laws to be followed on its face.

13:41You can take action if the actual implementation of that executive order violates law. So it found that the lower court had acted prematurely. That will certainly shape how these other cases proceed and will direct the parties and the courts to focus on implementation rather than the plain language of the executive orders. I've been urging people who are questioning the administration's actions to look beyond the executive orders to the actual implementation, and the court is giving people a strong nudge in that same direction. Yeah, because his executive order here said to the maximum extent appropriate and permitted by law.

14:24I guess they put in permitted by law on all these executive orders just as a hedge. Not quite all of them. That's certainly not in his executive order about birthright citizenship. It's not in a few of the others. But in the bulk of them, they do have this boilerplate about the extent allowed by appropriate law. Even if the executive order against DEI only forbids illegal DEI programs. So all these cases, the Supreme Court is ruling this way as the litigation is proceeding. But in a lot of these cases, once the litigation is over, the department may already have been dismantled. The rationale, I suppose, is that the people could be hired back to perform those functions.

15:12The likelihood is that if you hire people off the street without institutional knowledge and experience, the new workers won't be nearly as good as the old workers you lost. But the idea is that there will be someone performing these functions, even if they're not very good at it. Any final thoughts, any lessons to be learned from history relating to this? There's one thing that strikes me about this that we didn't talk about, which is that this court has told us again and again that it's originalist. The fourth law that Congress passed after the ratification of the Constitution was to start creating cabinet departments.

15:55So the first Congress understood that it got to choose what cabinet departments we would have. And you would think an originalist court would pay special attention to that and not allow a president to make these decisions. If George Washington couldn't decide what cabinet departments we would have, surely Donald Trump can't. Thanks so much for joining me, David. That's Professor David Super of Georgetown Law. And that's it for this edition of the Bloomberg Law Show. Remember, you can always get the latest legal news on our Bloomberg Law podcast. You can find them on Apple Podcasts, Spotify, and at www.bloomberg.com slash podcast slash law.

16:37And remember to tune into the Bloomberg Law Show every weeknight at 10 p.m. Wall Street time. I'm June Grosso, and you're listening to Bloomberg.

17:14We'll be right back. style killing, and everybody saw it. Now, as Luigi Mangione prepares to stand trial for the murder of UnitedHealthcare CEO Brian Thompson, which he denies, a new podcast series from ABC Audio and 2020 goes inside this captivating case. I'm ABC News legal analyst Brian Buckmeyer. Listen to Burden of Proof, Luigi Mangione, wherever you get your podcasts.