As Bill Glahn noted earlier, President Trump won a victory today in the Supreme Court. The case grows out of the administration’s attempt to shut down, or at least cut back on, the Department of Education. Toward that end, Secretary of Education Linda McMahon laid off something like half of the Department’s employees, and reassigned some of the Department’s functions to other agencies.
That resulted in a lawsuit in the federal district court in Massachusetts, where a district court judge entered a preliminary injunction barring the administration from carrying out the layoff. The case came before the Supreme Court on a petition for an emergency stay of that order, which the Court granted. So the administration will be free to continue its reorganization and downsizing of the Department as the litigation proceeds in the First Circuit Court of Appeals.
Today’s order was procedural and, as usual, the six justices who joined in it did not write an opinion explaining their reasoning. The Court’s three left-wing justices dissented strongly, in an opinion by Sonia Sotomayor.
Sotomayor begins by pointing out that the Executive Branch has no power to abolish the Department of Education:
This case arises out of the President’s unilateral efforts to eliminate a Cabinet-level agency established by Congress nearly half a century ago: the Department of Education. …
Only Congress has the power to abolish the Department. The Executive’s task, by contrast, is to “take Care that the Laws be faithfully executed.” U. S. Const., Art. II, §3.
She is 100% correct about that. Trump can’t abolish the Department of Education. She also attacks the majority with this not-unreasonable argument:
[The majority’s] decision is indefensible. It hands the Executive the power to repeal statutes by firing all those necessary to carry them out.
And yet, the President does have significant powers under Article II–a proposition to which Democratic justices are no stranger, when the President is a Democrat.
Despite the fact that our Republic is well over 200 years old, the respective powers of Congress and the President with regard to the budget and spending have never been clearly defined. If Congress appropriates money, does the President have to spend it? Many people believe the Supreme Court has held that the Constitution requires the President to spend all moneys appropriated by Congress, but they are wrong.
What, then? Can a President abolish an agency or department that Congress has established? Clearly not. But does that mean that he can’t undertake a reorganization, lay off employees deemed to be superfluous or unproductive, and so on? No: the President runs the Executive Branch, and the Constitution certainly intends to give him the power to run it efficiently. And if greater efficiency yields savings, can’t those savings be retained in the Treasury?
The ambiguity over the branches’ lines of authority is compounded by the general level at which Congress appropriates funds. Thus, for example, the Trump administration found that USAID money was going for projects like a “trans” opera and a “trans” comic book in foreign countries. And it turned out that USAID was the principal funder of Stonewall, the largest LGBTQ+ organization in the United Kingdom. But if you look at the appropriations bill for USAID that Congress passed, there were no references to trans operas or comic books, or to funding gay organizations in Great Britain. There were just vague references to promoting democracy abroad, etc.
So it is hard to make the case that the Trump administration is violating Congressional intent by cutting off funding that Congress never mentioned in the first place. That being the case, is there a good reason why the executive is then required to spend those dollars somewhere else? (And if so, where?) It doesn’t seem so.
My point is that there are serious, unresolved questions about the roles of Congress and the executive in controlling the far-flung activities of the federal government. What we have seen so far represents the earliest stage of skirmishing over these issues–distant thunder, heralding a major battle over the horizon.
But it also must be remembered that the most important element in a decision to grant or deny preliminary relief is the litigant’s likelihood of ultimately prevailing on the merits, as assessed by the court that either issues or denies the injunction. Thus, an expectation about the future development of the law is implicitly embedded in every decision relating to preliminary relief–that is, pretty much every decision we have seen so far.
On that understanding, the Trump administration is doing pretty well, and one can understand why the leftist justices have been shrill in their condemnation of even the most preliminary procedural orders.
