Shut Down the Department of Education?

President Trump has issued a new batch of executive orders. The one directed to the Secretary of Education, which looks toward the abolition of the Department of Education, has gotten the most attention.

The order consists mostly of a recitation of the uselessness of that department. Some excerpts:

[T]he experiment of controlling American education through Federal programs and dollars — and the unaccountable bureaucracy those programs and dollars support — has plainly failed our children, our teachers, and our families.
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This money is largely distributed by one of the newest Cabinet agencies, the Department of Education, which has existed for less than one fifth of our Nation’s history.

While the Department of Education does not educate anyone, it maintains a public relations office that includes over 80 staffers at a cost of more than $10 million per year.

Closing the Department of Education would provide children and their families the opportunity to escape a system that is failing them. Today, American reading and math scores are near historical lows. This year’s National Assessment of Educational Progress showed that 70 percent of 8th graders were below proficient in reading, and 72 percent were below proficient in math. The Federal education bureaucracy is not working.
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Ultimately, the Department of Education’s main functions can, and should, be returned to the States.

So far, so good. But what exactly, is Secretary of Education Linda McMahon supposed to do? Two things.

(a) The Secretary of Education shall, to the maximum extent appropriate and permitted by law, take all necessary steps to facilitate the closure of the Department of Education and return authority over education to the States and local communities while ensuring the effective and uninterrupted delivery of services, programs, and benefits on which Americans rely.

It is not clear what this means. I think it is reasonably clear that President Trump cannot, by executive order, abolish a cabinet department that has been created by Congress. So, then, what can he do? “Facilitate the closure,” presumably in expectation of the Republican Congress actually abolishing the department.

Pending such abolition, what can the Secretary do? The Department of Education promises to be a main battleground in the war between the Democrats and President Trump over the control of federal spending. Maybe McMahon can, for example, close the Department’s public relations office. That may depend on whether the PR office actually has gotten a Congressional appropriation, or has just had money allocated to it by bureaucrats. But then, what happens to the money? Must it be allocated to some other function within the Department, or can the executive branch hold on to it, creating a de facto spending cut?

This is the war that will be fought in the courts for years to come. I don’t think it is possible to foresee how it will turn out. The only sure remedy is a solidly Republican Congress that will actually cut spending.

The further directive to “return authority over education to the States and local communities” is a great idea, but there is no indication how this is to be done.

The second directive to Secretary McMahon is clearer and consistent with prior orders:

(b) Consistent with the Department of Education’s authorities, the Secretary of Education shall ensure that the allocation of any Federal Department of Education funds is subject to rigorous compliance with Federal law and Administration policy, including the requirement that any program or activity receiving Federal assistance terminate illegal discrimination obscured under the label “diversity, equity, and inclusion” or similar terms and programs promoting gender ideology.

This is an initiative that has broad public support, but the Democrats will throw up countless roadblocks in friendly courts.

Like many of Trump’s executive orders, this one is more an opening shot in a battle than a definitive resolution of a policy issue.