King Donald? Supreme Court grants Trump power to repeal laws at his whim

“The executive has seized for itself the power to repeal federal law by way of mass terminations, in direct contravention of the Take Care Clause and our Constitution’s separation of powers.”

Read that again. These are the words of Justice Sonia Sotomayor in a dissenting opinion to the Supreme Court’s one-paragraph July 14 ruling, in which the majority basically held — without any justification or explanation whatsoever — that it’s fine that America has become a land of lawlessness with power consolidated in one person.

President Trump is the law now.

The case is McMahon v. New York, and it involves Trump’s stated plan to abolish the Department of Education by basically firing half of its workforce so that it cannot function. Unlike Elon Musk’s slash-and-burn DOGE experiment, this maneuver is not even thinly disguised by the pretense of government “efficiency.” Trump just wants the Department of Education to go.

The trouble is that, as a matter of the Constitution’s core separation of powers, Congress makes the laws. In 1979, Congress enacted the Department of Education Organization Act for purposes of “ensuring access to equal educational opportunity for every individual.”

As Sotomayor explained in her dissent, which Justices Elena Kagan and Ketanji Brown Jackson joined, “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.’”

By shutting down the Department of Education “by executive fiat,” Trump is blatantly intruding on the powers of the legislature to make the laws while ignoring the constitutional mandate, and his oath of office, that he duly execute those laws.

Trump’s plan ignores a bunch of other laws that the Department of Education is also responsible for executing, including laws governing federal grants for institutes of higher education; federal funding for kindergarten through high school (more than $100 billion during the 2020-2021 school year, or 11 percent of the total funding for public K-12 schools across the country); and laws banning discrimination in federally-funded schools on the basis of race, color, national origin, sex and disability.

Then there’s the Individuals with Disabilities Education Act, which, according to the department’s current website, “is a law that makes available a free appropriate education to eligible children with disabilities ... and ensures special education and related services to those children, supports early services for infants and toddlers and their families, and awards competitive discretionary grants.” Seven million students across the country receive special education services supported by that law.

Another statute the department administers, the Elementary and Student Education Act, provides financial assistance programs to tens of millions of low-income students, too.

All of these laws are now being gutted by the stroke of Trump’s pen, as if he were a king.

There has been no public debate in Congress, no mark-ups of bills amending the law, no ability for voters to call representatives to lobby for or against proposals to amend the Department of Education and the statutes it administers. There has been no budget analyses, no media coverage of congressional horse-trading, no interviews of people from both parties on the steps of the Capitol, no hearing from public school officials or teachers or parents on whether this is a good idea.

Trump simply snatched the power to make and repeal major federal legislation and programs that affect millions of American children for himself.

Worse, the majority on the Supreme Court is letting him do it. Like Trump, it made its ruling on-the-fly and behind closed doors — without full briefing, oral argument or a written decision explaining the justices’ rationale for allowing this end run around Article I of the Constitution (which lodges the lawmaking power in Congress) and Article II (which mandates that the president take care that the laws are faithfully executed).

The majority’s silence left it to the dissenting justices once again to try and back-fill the majority’s reasoning in a dissenting opinion so that the public has some sort of record about what is possibly going on here.

Sotomayor explains that Trump, shortly after taking office, condemned the Department of Education as a “big con job” that he would “like to close immediately.” A week into her tenure, Secretary of Education Linda McMahon eliminated “nearly 50 percent of the Department’s workforce” as “the first step on the road to a total shutdown.” She closed entire offices — including the team responsible for administering bilingual education, every lawyer in the general counsel’s office responsible for K-12 education funding and IDEA grants, numerous regional offices that deal with civil rights laws and most of the office that certifies schools to receive federal student financial aid.

On March 20, Trump signed an executive order with a directive titled “Closing the Department of Education and Returning Authority to the States.” Twenty states and the District of Columbia sued, arguing that his actions violated the Take Care Clause and the Constitution’s separation of powers, incapacitating core components of the Department of Education on which the states rely. A similar lawsuit by school districts and unions followed. The cases were combined, and a district court issued an injunction preserving the status quo, keeping the department and the nation’s school system intact while the case was pending. An appeals court upheld that injunction.

Mind you, the district court issued its injunction after considering dozens of affidavits from Department of Education officials and recipients of federal funding describing how McMahon’s mass terminations have already affected the ability to pay teachers, purchase materials and equipment, and enroll students on federal financial aid — and how full implantation of Trump’s plan could be far worse. The government submitted no evidence in response.

Ignoring the record entirely, and on an emergency motion filed by the administration, the Supreme Court’s right-wing majority simply overturned the injunction, effectively handing Trump a win — just weeks before the start of the new school year — without even bothering to actually grapple with the Constitution, the lower court’s findings or the dire impacts on millions of children and young adults that rely on the department’s programs in order to get an education.

This sounds like a dystopian science fiction storyline that a bunch of Hollywood writers and producers dreamed up. But it’s real. This is Trump’s — and the Supreme Court’s — America.

Kimberly Wehle is author of the book “Pardon Power: How the Pardon System Works — and Why.”