It was a proposal in President Donald Trump鈥檚 first term, a campaign promise in his most recent run, and now, it could be a directive in an executive order: Take steps to dismantle the U.S. Department of Education.
Trump doesn鈥檛 have the power to end the department himself, but the president has the ability on his own to shrink the department鈥檚 footprint鈥攁nd then ask Congress to do the rest.
Early into his second term, the president has already flexed his executive power through a barrage of actions. Some, including two executive orders last week concerning school choice and 鈥渞adical indoctrination鈥� in schools, have skirted legal ramifications by compelling department heads to strategize and plan, stopping short of issuing mandates outside of his reach. Other steps, such as a sudden order for a broad spending freeze, have outright flouted the limits on his authority, prompting legal pushback. Education policy watchers say some of these actions are toeing the line in an attempt to trigger lawsuits.
His quest to eliminate the Education Department could serve as another test case for how Trump navigates the limits of his authority鈥攅ven as his administration has given the agency new tasks in his first few weeks to carry out his social agenda aimed at eliminating diversity, equity, and inclusion initiatives and protections for transgender students.
Presidents are 鈥渇ree to use the bully pulpit all they want, so they can run around and talk and say things, of course,鈥� said Derek Black, a professor of law at the University of South Carolina who specializes in constitutional law and public education. 鈥淏ut at the end of the day, the president only has the power vested in him by the Constitution or by statute.鈥�
When it comes to fulfilling his campaign pledge to eliminate the Education Department, Black said, 鈥渢he Constitution is no real, obvious help to the president there, or an executive order.鈥�
Though a possible executive order wouldn鈥檛 seek to outright dismantle the Education Department, it could follow in the footsteps of other recent forays into K-12 schools that seek to expand school choice and disrupt federal funding at schools where the president claims 鈥渞adical indoctrination鈥� is taking the place: Direct the secretary of education to create a plan on how it could be done.
The potential action could specify what the president鈥檚 powers are, and ask Congress to pass legislation to see his vision through,
The department is , as are most of its subdivisions and the programs it鈥檚 charged with carrying out鈥攕uch as distributing two of the largest buckets of federal money for schools: Title I, for low-income students, and the Individuals With Disabilities Education Act, for students with disabilities. Changing a statute requires approval from Congress, where these programs and the existence of the department itself .
At the end of the day, the president only has the power vested in him by the Constitution or by statute.
But the executive branch, through the president鈥檚 appointees in the Education Department, is charged with implementing those programs, Black said. That鈥檚 where Trump enjoys some discretion.
鈥淲here there are gray areas, the president can operate and roll back,鈥� Black said.
Where Trump can exercise executive authority in the Education Department
Congress isn鈥檛 in the business of hiring employees, but the president is. Under Trump, the administration could stop hiring staff, and not rehire when staff leave.
The administration has already begun some of that; Trump issued orders to whittle down staffing through a and an effort to eliminate diversity, equity, and inclusion practices, which affected the Education Department. The administration placed dozens of department staffers on administrative leave, and others reported, even though few reportedly had DEI-related jobs. It鈥檚 also to more than 2 million federal employees.
He can鈥檛 necessarily just fire people; there are statutory protections for civil servants.
And when Congress has created specific offices and positions within the department and charged them with certain duties, Trump can鈥檛 just do away with them, Black said. The 1979 statute that created the Education Department specifically creates more than a half-dozen offices in the agency鈥攕uch as the office for civil rights, the office of elementary and secondary education, and the office of special education and rehabilitative services鈥攅ach overseen by an assistant secretary.
In Trump鈥檚 first term, Education Secretary Betsy DeVos did try to follow the president鈥檚 ambitions to wither the department. She tried to restructure the agency, but couldn鈥檛 do everything she proposed because some changes required congressional action to change statute.
DeVos folded the office of innovation and improvement鈥攃reated during George W. Bush鈥檚 administration鈥攊nto the office of elementary and secondary education because there was no statute creating the innovation office. On the other hand, a proposal to merge the office of English language acquisition into the office of elementary and secondary education never came to fruition because it would have required congressional approval. Similarly, a proposal to merge most department funding streams into a block grant never became reality because Congress didn鈥檛 go along with it.
This time around, if the Trump administration tried to reallocate money approved by Congress or eliminate an office required by statute, that would prompt litigation, Black said. He can鈥檛 touch Title I funds or reallocate them, or refuse to send them out, for instance.
鈥淚t seems to me, a directive鈥攂ased on the reporting鈥攖hat is going to flex the president鈥檚 full powers to shrink the department,鈥� Black said. 鈥淎nd he does have some power to shrink the footprint.鈥�
Politically, eliminating the Education Department could be a tall order
There鈥檚 momentum behind Trump鈥檚 push to eliminate the Education Department, just days ago to 鈥渢erminate鈥� the agency that followed a Senate proposal introduced in November.
But because the move requires congressional approval to change statute, it will be hard to garner the needed votes. The move would need 60 votes in the U.S. Senate, where Republicans only have 53 seats. And in the U.S. House, a 2023 vote to end the department through an amendment to a parents鈥� rights bill drew opposition from every Democrat as well as 60 Republicans.
鈥淚 think it is important for us to remember a reality check that the Department of Education鈥檚 existence actually resides in this branch of government,鈥� U.S. Rep. Joe Courtney, D-Conn., said Wednesday during a House education and workforce committee hearing.
Even if a congressional vote were successful, the administration would then have to untangle an agency that oversees more than $1 trillion in student loans and administers a budget of roughly $80 billion covering programs addressing prekindergarten through postsecondary education.
Still, the foundation for downsizing is already being laid: Staff from Elon Musk鈥檚 Department of Government Efficiency have reportedly been working out of the department鈥檚 building in Washington and looking into its operations as part of its effort to shrink the role of federal government,.
As for an executive order, the timing is uncertain: The administration has been weighing whether to roll out such an initiative before the confirmation of Linda McMahon, whom Trump appointed as education secretary, the Washington Post reported.
鈥淚 told Linda, 鈥楲inda, I hope you do a great job and put yourself out of a job.鈥� I want her to put herself out of a job,鈥� while signing executive orders in the Oval Office this week.
McMahon鈥檚 hearing before the U.S. Senate hasn鈥檛 been scheduled, and broadcasting his intentions through an executive order all but promises it will take center stage at her confirmation hearing.
The loss of the department could have catastrophic downstream effects for students who depend on the services it funds, said Eric Duncan, director for P-12 policy for EdTrust, which advocates for equitable education for students of color and students from low-income backgrounds. The loss of civil rights protections and accountability data would be significant, he said.
鈥淭here are a lot of people who are saying, 鈥榃e don鈥檛 need a federal Department of Education. We don鈥檛 need all of this extravagant spending, and we don鈥檛 need a central hub. States can kind of handle all this stuff,鈥欌�� Duncan said. 鈥淏ut there鈥檚 so many protections and floors that the department sets. There鈥檚 so many signals that the department shares with other leaders, not just the bully pulpit and signaling what鈥檚 working, but the convening power.鈥�
