It was a proposal in President Donald Trump’s 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’t have the power to end the department himself, but the president has the ability on his own to shrink the department’s footprint—and 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 “radical indoctrination” 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—even 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 “free to use the bully pulpit all they want, so they can run around and talk and say things, of course,” said Derek Black, a professor of law at the University of South Carolina who specializes in constitutional law and public education. “But at the end of the day, the president only has the power vested in him by the Constitution or by statute.”
When it comes to fulfilling his campaign pledge to eliminate the Education Department, Black said, “the Constitution is no real, obvious help to the president there, or an executive order.”
Though a possible executive order wouldn’t 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 “radical indoctrination” 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’s powers are, and ask Congress to pass legislation to see his vision through, according to the Washington Post.
The department is created by statute, as are most of its subdivisions and the programs it’s charged with carrying out—such 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 typically have had widespread support.
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’s appointees in the Education Department, is charged with implementing those programs, Black said. That’s where Trump enjoys some discretion.
“Where there are gray areas, the president can operate and roll back,” Black said.
Where Trump can exercise executive authority in the Education Department
Congress isn’t 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 hiring freeze across much of the executive branch 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, the New York Times and others reported, even though few reportedly had DEI-related jobs. It’s also made a deferred resignation offer to more than 2 million federal employees.
He can’t 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’t 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—such as the office for civil rights, the office of elementary and secondary education, and the office of special education and rehabilitative services—each overseen by an assistant secretary.
In Trump’s first term, Education Secretary Betsy DeVos did try to follow the president’s ambitions to wither the department. She tried to restructure the agency, but couldn’t do everything she proposed because some changes required congressional action to change statute.
DeVos folded the office of innovation and improvement—created during George W. Bush’s administration—into 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’t 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’t touch Title I funds or reallocate them, or refuse to send them out, for instance.
“It seems to me, a directive—based on the reporting—that is going to flex the president’s full powers to shrink the department,” Black said. “And he does have some power to shrink the footprint.”
Politically, eliminating the Education Department could be a tall order
There’s momentum behind Trump’s push to eliminate the Education Department, with another Republican bill filed just days ago to “terminate” 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’ rights bill drew opposition from every Democrat as well as 60 Republicans.
“I think it is important for us to remember a reality check that the Department of Education’s existence actually resides in this branch of government,” 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’s Department of Government Efficiency have reportedly been working out of the department’s building in Washington and looking into its operations as part of its effort to shrink the role of federal government, according to the Wall Street Journal.
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.
“I told Linda, ‘Linda, I hope you do a great job and put yourself out of a job.’ I want her to put herself out of a job,” Trump told reporters while signing executive orders in the Oval Office this week.
McMahon’s hearing before the U.S. Senate hasn’t 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.
“There are a lot of people who are saying, ‘We don’t need a federal Department of Education. We don’t need all of this extravagant spending, and we don’t need a central hub. States can kind of handle all this stuff,’” Duncan said. “But there’s so many protections and floors that the department sets. There’s so many signals that the department shares with other leaders, not just the bully pulpit and signaling what’s working, but the convening power.”
