Supreme Court Justice Sonia Sotomayor took the high court’s conservative members to task Monday as they made the “indefensible” decision to allow President Donald Trump to go ahead with his plan to dismantle the Department of Education.
The department was created by an act of Congress around 50 years ago and it would take an act of Congress to formally shutter it, but Trump is attempting to take it apart by executive order and mass firings instead.
Sotomayor pointed to how Trump and his allies have repeatedly made plain his intention to scrap the department. The president asserted on the campaign trail and since retaking the White House that he would act alone to close it.
“When the Executive publicly announces its intent to break the law, and then executes on that promise, it is the Judiciary’s duty to check that lawlessness, not expedite it,” Sotomayor wrote.
The Supreme Court’s decision lifts an injunction that paused Trump’s plan while the matter was litigated in the court system, maintaining the status quo until a more final decision could be made. Now, the administration can go ahead with some 1,400 firings, likely leaving the department a shell of itself while the matter still works its way through the courts.
Of her colleagues’ ruling, Sotomayor wrote, “It hands the Executive the power to repeal statutes by firing all those necessary to carry them out.”
“The majority is either willfully blind to the implications of its ruling or naive, but either way the threat to our Constitution’s separation of powers is grave,” she said.
While Sotomayor was joined in her searing 19-page dissent by Justices Elena Kagan and Ketanji Brown Jackson, the court’s majority issued no explanation for their decision — an unusual move.
Sotomayor seized on that fact, calling the decision a “misuse of our emergency docket.”
“Congress created the Department, and only Congress can abolish it. The President, too, may not refuse to carry out statutorily mandated functions assigned to the Department, for he must ‘take Care that the Laws be faithfully executed,’” Sotomayor wrote, citing Article 2, Section 3 of the Constitution.
She wrote that the Education Department, and those in charge of it, have a legal duty to carry out certain obligations, per Congress.
“Rather than contest these bedrock principles, the Government below contended that the mass terminations were not part of any planned closure, but instead simply intended to ‘cut bureaucratic bloat,’” she went on. “The record unambiguously refutes that account. Indeed, as described above, neither the President nor Secretary McMahon made any secret of their intent to ignore their constitutional duties.”
Trump, Sotomayor noted, explicitly told Education Secretary Linda McMahon upon her nomination that he was directing her to put herself “out of a job.”
The president and his allies argue that shuttering the federal Department of Education gives states full control over what students learn and how they learn it, potentially creating a 50-state patchwork of educational experiences where the federal agency had sought to guarantee more equal access across the country.