July 15, 2025 • 15 mins
Constitutional law scholar David Super, a professor at Georgetown Law, discusses the Supreme Court granting all of President Trump’s 15 emergency applications since April, including allowing him to dismantle the Education Department. June Grasso hosts.
See omnystudio.com/listener for privacy information.
Mark as Played
Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:02):
This is Bloomberg Law with June Grossel from Bloomberg Radio.
Speaker 2 (00:08):
And it sounds strange, doesn't it. Department of Education. We're
going to eliminate it, and everybody knows it's right.
Speaker 3 (00:15):
In March, President Trump signed an executive order to dissolve
the Department of Education, which oversees billions of dollars in
funding for everything from student loans to special needs and
nutritional programs. Trump said that the essential services provided by
the department will be picked up by other agencies and
(00:36):
guess who else.
Speaker 2 (00:37):
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.
Speaker 3 (00:48):
Well. Twenty Democratic state attorneys general sued, arguing that the
administration's actions to dismantle the DOE are illegal and unconstitutional.
UCA's only Congress has the authority to eliminate the department.
Here's New Jersey Attorney General Matthew Platkin.
Speaker 1 (01:07):
They're hurting our kids to score cheap political points.
Speaker 4 (01:09):
And I think for the eighty five percent of families
in this country that rely on public education, this is
an affront to all of us.
Speaker 3 (01:16):
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 usued 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
(01:37):
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. Trump can't officially
eliminate the Department of Education, or any department, but can
he effectively dismantle it?
Speaker 4 (01:59):
He is dumb, 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.
Speaker 3 (02:11):
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?
Speaker 4 (02:27):
This one did for several reasons. One is it came
without any explanation at all. What the Court's done in
prior cases upholding the administration is nitpick the challengers to death,
finding small, often semantic defect in what they've done. It's
truing jurisdiction extraordinarily strictly. But in this case they simply
(02:51):
allowed the president to go forward with activities that seem
patently illegal without giving any explanation as to why it
was acceptable.
Speaker 3 (03:01):
Are the Supreme Courts conservatives just ignoring the decisions of
the lower courts because here the Boston Federal judge said
the purge would lead the Department unable to perform duties
required under US law. Are the conservatives just ignoring what
the district court judges find.
Speaker 4 (03:21):
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.
Speaker 3 (03:38):
As you said, there's no opinion, so we don't know
what they based this on. But can we assume that
they found the government would win on the.
Speaker 4 (03:47):
Merits that's really the only plausible explanation. The lower court's
decision seems to have met all procedural requirements. The lower
court was observing 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
(04:12):
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.
Speaker 3 (04:24):
Jessic Sonya 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.
Speaker 4 (04:43):
I'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,
the Court couldn't find anything in a constitution or statute
(05:05):
that supports that. What the Court said is the effect
of this who 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
(05:28):
Court is not recognizing those effects when it was so
eager to do so in other cases.
Speaker 3 (05:36):
Since April, the Supreme Court has signed with Trump every
time he made an emergency request. That's fifteen 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.
Speaker 4 (05:59):
It's a contrast the way they treated President Biden, who
had many of his most important policies and joined 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. This is also
(06:22):
more deferential than we saw in the first few months
of this administration, which is even more disturbing.
Speaker 3 (06:30):
I mean, two years ago, the same six Conservatives kept
President Biden's cancelation 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?
Speaker 4 (06:52):
Well, the Chief Justice has long been known for wanting
to present as united a cord as possible, and the
Chief Justice in the first month of the administration was
able to get some of his conservative colleagues to join
(07:13):
him in the liberals in reigning in the excesses of
this administration. I'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
bear five four or six three votes.
Speaker 3 (07:35):
Chump 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 you know the brunt
of responsibility for education?
Speaker 4 (07:51):
Of course they do. Education in this country's 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 the national level, such as curriculums such as
(08:16):
guidance and sharing of best practices. The Department of Education
is alaw of the least intrusive federal agencies, so the
statement doesn't make very much them.
Speaker 3 (08:26):
The Trump administration says they want to return education to
the States, but yesterday, twenty four states and the District
of Columbia sued the administration forholding close to seven billion
dollars in federal funding for education programs. North Carolina Attorney
General Jeff Jackson said the consequences could be dire for
(08:49):
American students.
Speaker 1 (08:50):
The effect is going to be massive, and it's going
to be immediate. We estimate it's roughly one hundred and
sixty five million dollars to the state. It's going to
result in roughly one thousand educators being laid off. This
is plainly against the laws, against the Constitutions, against the
Impoundment Act. From a legal standpoint, this is not a
hard case.
Speaker 3 (09:09):
So the Trump administration's actions seem to be a little contradictory.
Speaker 4 (09:14):
Yes, which suggests that this is more of a nuilist
approach than a different philosophy. You willlect a different president.
You should expect that they'll pursue a different philosophy. But
so far what we're seeing here is or wrecking ball.
We know they're against lots and lots of things, it's
not clear what they're for.
Speaker 3 (09:33):
I've been talking to Georgetown law professor David super Trump
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 and federally funded schools, and that office
(09:54):
is going to be hit particularly hard by this. It's
going to lose about half its staff and seven of
eleven regional offices. I mean, do you think that's part
of the goal here to eliminate that.
Speaker 4 (10:07):
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. If you want to talk about limiting the
role of federal government, having it try to micromanage how
(10:30):
a university makes faculty appointments and selects people for tenure.
It's 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.
Speaker 3 (10:51):
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.
Speaker 4 (11:04):
Well, it's not going to be precedent in 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
(11:26):
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 reasing. They said, you can't invalidate an executive
order that purports to require all laws to be followed
(11:51):
on its face. You can take action if the actual
implementation of that executive order violates law. So it's 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
(12:13):
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.
Speaker 3 (12:28):
Yeah, because his executive order here said to the maximum
extent appropriate and permitted by law. I guess they put
in permitted by law on all these executive orders just
as a hedge.
Speaker 4 (12:40):
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 its executive order against THEI only forbids illegal DEI programs.
Speaker 3 (12:59):
So all these case is 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.
Speaker 4 (13:14):
The rationale, I suppose is that the people could be
hired back to perform those functions. The 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 ideas that
(13:37):
there will be someone performing these functions, even if they're
not very good at it.
Speaker 3 (13:42):
Any final thoughts, any lessons to be learned from history
relating to this.
Speaker 4 (13:47):
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. So the first Congress understood
(14:09):
that it got to choose what cabinet departments we would have.
And you would think an Originals 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, Shirley Donald Trump can't.
Speaker 3 (14:27):
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
dot bloomberg dot com, slash podcast slash Law, and remember
(14:48):
to tune into The Bloomberg Law Show every weeknight at
ten pm Wall Street Time. I'm June Grosso and you're
listening to Bloomberg
This is Bloomberg Law with June Grossel from Bloomberg Radio.
Speaker 2 (00:08):
And it sounds strange, doesn't it. Department of Education. We're
going to eliminate it, and everybody knows it's right.
Speaker 3 (00:15):
In March, President Trump signed an executive order to dissolve
the Department of Education, which oversees billions of dollars in
funding for everything from student loans to special needs and
nutritional programs. Trump said that the essential services provided by
the department will be picked up by other agencies and
(00:36):
guess who else.
Speaker 2 (00:37):
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.
Speaker 3 (00:48):
Well. Twenty Democratic state attorneys general sued, arguing that the
administration's actions to dismantle the DOE are illegal and unconstitutional.
UCA's only Congress has the authority to eliminate the department.
Here's New Jersey Attorney General Matthew Platkin.
Speaker 1 (01:07):
They're hurting our kids to score cheap political points.
Speaker 4 (01:09):
And I think for the eighty five percent of families
in this country that rely on public education, this is
an affront to all of us.
Speaker 3 (01:16):
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 usued 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
(01:37):
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. Trump can't officially
eliminate the Department of Education, or any department, but can
he effectively dismantle it?
Speaker 4 (01:59):
He is dumb, 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.
Speaker 3 (02:11):
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?
Speaker 4 (02:27):
This one did for several reasons. One is it came
without any explanation at all. What the Court's done in
prior cases upholding the administration is nitpick the challengers to death,
finding small, often semantic defect in what they've done. It's
truing jurisdiction extraordinarily strictly. But in this case they simply
(02:51):
allowed the president to go forward with activities that seem
patently illegal without giving any explanation as to why it
was acceptable.
Speaker 3 (03:01):
Are the Supreme Courts conservatives just ignoring the decisions of
the lower courts because here the Boston Federal judge said
the purge would lead the Department unable to perform duties
required under US law. Are the conservatives just ignoring what
the district court judges find.
Speaker 4 (03:21):
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.
Speaker 3 (03:38):
As you said, there's no opinion, so we don't know
what they based this on. But can we assume that
they found the government would win on the.
Speaker 4 (03:47):
Merits that's really the only plausible explanation. The lower court's
decision seems to have met all procedural requirements. The lower
court was observing 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
(04:12):
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.
Speaker 3 (04:24):
Jessic Sonya 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.
Speaker 4 (04:43):
I'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,
the Court couldn't find anything in a constitution or statute
(05:05):
that supports that. What the Court said is the effect
of this who 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
(05:28):
Court is not recognizing those effects when it was so
eager to do so in other cases.
Speaker 3 (05:36):
Since April, the Supreme Court has signed with Trump every
time he made an emergency request. That's fifteen 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.
Speaker 4 (05:59):
It's a contrast the way they treated President Biden, who
had many of his most important policies and joined 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. This is also
(06:22):
more deferential than we saw in the first few months
of this administration, which is even more disturbing.
Speaker 3 (06:30):
I mean, two years ago, the same six Conservatives kept
President Biden's cancelation 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?
Speaker 4 (06:52):
Well, the Chief Justice has long been known for wanting
to present as united a cord as possible, and the
Chief Justice in the first month of the administration was
able to get some of his conservative colleagues to join
(07:13):
him in the liberals in reigning in the excesses of
this administration. I'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
bear five four or six three votes.
Speaker 3 (07:35):
Chump 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 you know the brunt
of responsibility for education?
Speaker 4 (07:51):
Of course they do. Education in this country's 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 the national level, such as curriculums such as
(08:16):
guidance and sharing of best practices. The Department of Education
is alaw of the least intrusive federal agencies, so the
statement doesn't make very much them.
Speaker 3 (08:26):
The Trump administration says they want to return education to
the States, but yesterday, twenty four states and the District
of Columbia sued the administration forholding close to seven billion
dollars in federal funding for education programs. North Carolina Attorney
General Jeff Jackson said the consequences could be dire for
(08:49):
American students.
Speaker 1 (08:50):
The effect is going to be massive, and it's going
to be immediate. We estimate it's roughly one hundred and
sixty five million dollars to the state. It's going to
result in roughly one thousand educators being laid off. This
is plainly against the laws, against the Constitutions, against the
Impoundment Act. From a legal standpoint, this is not a
hard case.
Speaker 3 (09:09):
So the Trump administration's actions seem to be a little contradictory.
Speaker 4 (09:14):
Yes, which suggests that this is more of a nuilist
approach than a different philosophy. You willlect a different president.
You should expect that they'll pursue a different philosophy. But
so far what we're seeing here is or wrecking ball.
We know they're against lots and lots of things, it's
not clear what they're for.
Speaker 3 (09:33):
I've been talking to Georgetown law professor David super Trump
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 and federally funded schools, and that office
(09:54):
is going to be hit particularly hard by this. It's
going to lose about half its staff and seven of
eleven regional offices. I mean, do you think that's part
of the goal here to eliminate that.
Speaker 4 (10:07):
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. If you want to talk about limiting the
role of federal government, having it try to micromanage how
(10:30):
a university makes faculty appointments and selects people for tenure.
It's 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.
Speaker 3 (10:51):
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.
Speaker 4 (11:04):
Well, it's not going to be precedent in 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
(11:26):
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 reasing. They said, you can't invalidate an executive
order that purports to require all laws to be followed
(11:51):
on its face. You can take action if the actual
implementation of that executive order violates law. So it's 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
(12:13):
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.
Speaker 3 (12:28):
Yeah, because his executive order here said to the maximum
extent appropriate and permitted by law. I guess they put
in permitted by law on all these executive orders just
as a hedge.
Speaker 4 (12:40):
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 its executive order against THEI only forbids illegal DEI programs.
Speaker 3 (12:59):
So all these case is 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.
Speaker 4 (13:14):
The rationale, I suppose is that the people could be
hired back to perform those functions. The 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 ideas that
(13:37):
there will be someone performing these functions, even if they're
not very good at it.
Speaker 3 (13:42):
Any final thoughts, any lessons to be learned from history
relating to this.
Speaker 4 (13:47):
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. So the first Congress understood
(14:09):
that it got to choose what cabinet departments we would have.
And you would think an Originals 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, Shirley Donald Trump can't.
Speaker 3 (14:27):
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
dot bloomberg dot com, slash podcast slash Law, and remember
(14:48):
to tune into The Bloomberg Law Show every weeknight at
ten pm Wall Street Time. I'm June Grosso and you're
listening to Bloomberg
Popular Podcasts
On Purpose with Jay Shetty
I’m Jay Shetty host of On Purpose the worlds #1 Mental Health podcast and I’m so grateful you found us. I started this podcast 5 years ago to invite you into conversations and workshops that are designed to help make you happier, healthier and more healed. I believe that when you (yes you) feel seen, heard and understood you’re able to deal with relationship struggles, work challenges and life’s ups and downs with more ease and grace. I interview experts, celebrities, thought leaders and athletes so that we can grow our mindset, build better habits and uncover a side of them we’ve never seen before. New episodes every Monday and Friday. Your support means the world to me and I don’t take it for granted — click the follow button and leave a review to help us spread the love with On Purpose. I can’t wait for you to listen to your first or 500th episode!
Dateline NBC
Current and classic episodes, featuring compelling true-crime mysteries, powerful documentaries and in-depth investigations. Special Summer Offer: Exclusively on Apple Podcasts, try our Dateline Premium subscription completely free for one month! With Dateline Premium, you get every episode ad-free plus exclusive bonus content.
24/7 News: The Latest
The latest news in 4 minutes updated every hour, every day.