HOSTS

PETER SHAMSHIRI

RHIANNON HAMAM

MICHAEL LIROFF

Leon Neyfakh: Hey, everyone. This is Leon from Prologue Projects. On this episode of 5-4, Peter, Rhiannon and Michael are talking about McMahon v. New York, a recent case about the separation of powers and the dismantling of the Department of Education. In March, Secretary of Education Linda McMahon announced the firing of 1,300 staff members in what appeared to be the first step towards carrying out an executive order from President Trump in which he called for the closure of the department. Nineteen states, along with several school districts and teachers unions, sued the federal government, claiming the firings violated federal laws and the Constitution. The lower court ordered the employees to be reinstated, but the Trump administration appealed the case to the Supreme Court, where the conservative justices ruled to uphold the firings.

[NEWS CLIP: The Supreme Court cleared the way for the Trump administration to carry out its plans for mass firings there. A lower court judge had previously put that plan on hold, warning that the layoffs will, quote, 'likely cripple the department.']

Leon: This is 5-4, a podcast about how much the Supreme Court sucks.

Peter Shamshiri: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have left our nation wandering aimlessly like Donald Trump on the White House roof. I'm Peter. I'm here with Rhiannon.

Rhiannon Hamam: Jump, bitch!

Peter: And Michael.

Michael Liroff: [laughs] I was gonna say—make a joke, but that was ...

Peter: We're always a week behind the news here, but today, as we're recording, a week before this comes out, Donald Trump was interviewed on the White House lawn. And he was just sort of rambling, and then shortly after, he just sort of appeared on the roof of the White House.

Michael: [laughs] And they were, like, yelling up to him, like, "What are you doing?" And he said he was building nuclear missiles. And then, like, mimed, like, with his hand, like a missile launcher. Just the man—unbelievable.

Peter: Brain fried. And I'll tell you, when I was, like, 15, I worked at a nursing home.

Michael: Yeah.

Peter: And, you know, many of the people there had it fully together, and many people did not.

Rhiannon: Yeah.

Peter: And there was, like, a subset of the residents there who you were aware did not have it together. And every now and then, something like this would happen. Like, every now and then, you'd be like, "What's Esther doing in the courtyard?" Right?

Michael: Yeah.

Peter: She really looks like she doesn't know what her purpose in the courtyard is. Someone should wrangle her.

Rhiannon: And if you'd ask her, she would say, like, "I'm building missiles."

Peter: She would say she was building missiles, or something along those lines. Something that didn't seem tethered to reality.

Michael: Yeah.

Peter: Yeah. So anyway, that's what's happening to Donald Trump.

Rhiannon: Our president.

Peter: He is Esther in the courtyard. Or to use one that really happened: Hope making a run for it out of the half-mile-long driveway out to the main road.

Michael: [laughs]

Peter: I once saw Hope in a wheelchair just hauling ass out to the main road. Just—she made it so far it would shock you.

Rhiannon: Free Hope!

Peter: I was there for two years after. No one ever figured out how Hope got out.

Michael: [laughs]

Peter: All right, today's case: McMahon v. New York. This is a case from just a few weeks back about Trump's gutting of the Department of Education. Linda McMahon of the McMahon family.

Rhiannon: Yeah, that one.

Peter: Who were the longtime owners of the WWE.

Rhiannon: Yep.

Peter: Is your secretary of the Department of Education. In March, she fired over half of the department's staff. A few days later, Trump issued an executive order telling Linda to, quote, "Take all necessary steps to facilitate the closure of the department." This is all very illegal, folks. The Department of Education was created by Congress and cannot be legally disbanded without congressional approval. But what are laws, right? Are they binding mandates that weigh upon politicians and elected officials? No. We've always told you they weren't real. And people are like, "What do you mean?"

Rhiannon: Yeah.

Peter: What do you mean? This is what we mean: Laws are just the idea that someone should be constrained.

Rhiannon: Yeah.

Michael: Yeah.

Peter: And they are supported by institutional power. Or perhaps they aren't.

Michael: [laughs] What is institutional power against the weight and power of a 79-year-old man wandering around on the roof?

Rhiannon: Yeah. Who's to say?

Peter: What is more important, the ability of Congress to pass a law and have that law be respected or the whims of our roof-wandering president?

Michael: Yes.

Rhiannon: That's what this case comes down to. Yeah.

Peter: So a district court ordered the Department of Education to reinstate the staff members that it has fired, and to put a stop to any further shenanigans. But the Supreme Court, in a six-to-three shadow docket decision, lifted that order.

Rhiannon: How many of our episodes over the years have started in some form in the introduction with Peter going, "This is all very illegal." You know? That's why we're here. It's a legal podcast about all the illegal stuff that the right wing in America does, and how the Supreme Court gives it the thumbs up, you know? So let's go through some of Trump's attacks on the Department of Education. Why is this guy doing this, you know? Back when he was campaigning for a second term, he was already talking, of course, we all remember, about dismantling the Department of Education on the premise that education in the United States should be controlled by the states, not the federal government. No mind. Doesn't matter that states' school boards already control their own curriculums, by and large. The federal government doesn't do that. But whatever, you know? Get rid of it. Get rid of the Department of Education.

Rhiannon: At the time, again, when he was campaigning for a second term, Trump's proposed reforms to education, kind of like broadly in the United States, included prayer in public schools, expanding parental rights and education, patriotism as the centerpiece of education, and emphasis on the, quote-unquote, "American way of life" in public schooling without really defining what that means. But, you know, we can infer. Also proposed, of course, and we see this being rolled out through the Department of Education and through the Trump administration in other various ways, dismantling, of course, diversity initiatives in education, and federal funding cuts for schools that feature, quote-unquote, "critical race theory, gender ideology or other inappropriate racial, sexual or political content." You know, we're talking about government censorship here, thought police, and attacks on racial minorities and LGBTQ people basically, like, existing in public, right? It's the whole gamut

Rhiannon: We've been talking about it for months because the Trump administration has been up to this for months in this second term. But it's also, we should be noting, it's also about Christianization and privatization. You know, legislation at the state level across the country includes stuff that, like, is in line, running parallel with what the Trump administration is doing. You know, it includes school choice and school voucher programs where public schooling funds are diverted to private schooling and homeschooling. Texas just passed a law requiring that the Ten Commandments be put up in every public school classroom. It's a lot of stupid, stupid bullshit. PEN America did a study that found that more than 10,000 books had been removed from library shelves in the 2023-2024 school year. There's a theme here, people, you know? This is what the Trump administration is doing with a big, you know, cherry on top of dismantling, dissolving the Department of Education.

Rhiannon: One side note: I was looking at, like, speeches during the Trump campaign. He also—or interviews. He also said at one point that he was gonna fund a free college called the American Academy, and it would be funded by taxing, fining and suing private universities. It's good stuff. Anyways, great plans. He was walking around a roof, you know, when he came up with that one. So you have all this right wing meat-and-potatoes culture war stuff in terms of, like, drumming up reactionary populist fervor for these things. But there's also a layer of, like, this almost, like, theater, this politics of reducing the size of the federal government: DOGE, efficiency, killing Big Brother, killing the federal government, stealing money, taxpayer money from you, this kind of thing.

Rhiannon: So in early March, Secretary of Education Linda McMahon initiated what's called a RIF—R-I-F—a reduction in force, where the Department of Education announced the firing of about 1,300 people. Now it was 1,300 people being put on administrative leave, firing them, but including also sort of voluntary resignations and buyouts, and the Department of Education pulling funding for what had been, like, temporary positions. In total, this was reducing the Department of Education's staff by 2,000 people. That is nearly 50 percent of the Department of Education's workforce. When announcing that RIF, Linda McMahon said, quote, "Today's reduction in force reflects the Department of Education's commitment to efficiency, accountability and ensuring that resources are directed where they matter most to students, parents and teachers. I appreciate the work of the dedicated public servants and their contributions to the department. This is a significant step toward restoring the greatness of the United States education system." Getting rid of it, you know?

Peter: Right. Well, it used to be a lot better. There's actually evidence of this; you'll hear right wingers say it. Did you know that SAT scores have gone down after the creation of the Department of Education? Haters will say that's because more people are taking it now because more people are going to college. Don't listen to them.

Rhiannon: Yeah, don't listen to them. In 1920, school was better for your kids.

Peter: That was the ideal moment in school.

Rhiannon: Yeah.

Peter: Before the New Deal state.

Rhiannon: Yeah, exactly. Now following that RIF announced by the Department of Education, on March 20, just over a week later, Trump signed an executive order titled Improving Education Outcomes by Empowering Parents, States and Communities. It directs the Department of Education, it directs the Secretary of Education to take all necessary steps to facilitate the closure of the Department of Education and return education authority to the states.

Peter: Now could you read the title of that order again?

Rhiannon: Improving Education Outcomes by Empowering Parents, States and Communities. Again, explicit in the text here: facilitate the closure of the Department of Education. Wanted to make a note. I think people probably remember if you saw the signing ceremony for this executive order, Trump was, like, surrounded by, like, a bunch of, like, school-aged children. Like, little, little kids.

Peter: Of course. Classic.

Rhiannon: Yeah, yeah, yeah. Just wanted to note at the signing ceremony, bunch of governors there. Bunch of governors traveled to that signing ceremony. Ron DeSantis of Florida, Greg Abbott of Texas, Mike Braun of Indiana, Kim Reynolds of Iowa, Jeff Landry of Louisiana and Mike DeWine of Ohio, just there to watch the signing ceremony for dismantling the Department of Education. On the day that Trump signed that executive order, he speaks during the signing ceremony. He's also doing interviews right after. He says, quote, "Today we take a historic action that was 45 years in the making. We will begin eliminating the federal Department of Education." Later on that day he says, "We're going to eliminate it. Everybody knows it's right. We want to return our students to the states, where just some of the governors here are so happy about this. They want education to come back to them, to come back to the states, and they're going to do a phenomenal job." Walking around on the roof, you know?

Rhiannon: The next day, on March 21, he announced that programs for students with special needs and the federal student loan portfolio—these are all things that are administered by the Department of Education, and we'll get more into that in a little bit—he announced that those programs would be transferred from the Department of Education to the Department of Health and Human Services and the Small Business Administration. So moving things around in stupid ways.

Rhiannon: So how do we get this case? Plaintiffs, this is a group of 19 states led by New York as well as DC, two public school districts and several teachers' unions, they went to federal court in Massachusetts, and they're arguing that the RIF, that original reduction in force that was implemented by the Department of Education, in which, you know, over 1,300 employees were fired, that that violates both the Constitution and federal laws that govern administrative agencies, the power of administrative agencies, the power of Congress to give power to administrative agencies. And so that first federal court in Massachusetts, that judge did order the reinstatement of those 1,300 employees. You gotta give them their jobs back. This is illegal. Of course, Linda McMahon, the federal government appealed that, and that's how we get to the Supreme Court.

Peter: All right, so let's talk about the law here. The most fundamental issue here is that Congress created the Department of Education by statute, the Department of Education Organization Act, back in 1979. The President cannot unilaterally dismantle it because the President cannot simply nullify an existing law on a whim, right? That would violate the law itself. It would also violate the constitutional separation of powers. If you zoom in a little bit, the Department of Education has within it various different entities. Congress has prohibited the Secretary of Education from abolishing organizational entities established in the originating statute from 1979. And then there's also some entities within the Department of Education that the Secretary of Education can get rid of, but only if they follow certain procedures, which McMahon did not do. But again, all that is just a technical way of saying the Department of Education, created by Congress, only Congress can dismantle it.

Rhiannon: Yeah.

Peter: Trump's executive order is therefore flagrantly unconstitutional. Any executive action taken with the intent of dismantling the Department of Education is unconstitutional, and any executive action taken that deprives the department of the ability to fulfill its statutory obligations is unconstitutional.

Rhiannon: And there's no question about the intent. Again, he's saying we're dismantling the Department of Education.

Peter: It's in the order. It's in the order, right? So you have this sort of twofold argument where, one, these actions are designed to fulfill an unconstitutional goal, and two, they are depriving the department of the resources it needs to actually function as Congress intended it to function.

Rhiannon: Yeah.

Peter: So, like many cases lately, there is no opinion here. This is a shadow docket, procedural order. It dropped after the term technically ended. The court doesn't explain itself, so what do we know here? Well, it's a procedural order. The court is not technically saying that this is all constitutional, but the lower court had halted the termination of the Education employees and ordered the reinstatement of anyone who was fired. The Supreme Court is lifting that court order, so this decision is allowing the firings to proceed. So technically, the Supreme Court could in the future say, "Oh, yeah. The executive order is unconstitutional." But the damage has already been done. They've allowed Trump to gut the department.

Rhiannon: Right.

Peter: And we've now seen this basic tactic over and over again, where the court ignores the constitutional issue and just intervenes to allow the Trump administration to implement the policy. We saw it in the birthright citizenship case, for example, basically saying, "Hey, we're not ruling on whether this policy is constitutional. We're just saying that Trump can implement it while courts figure it out." Right? This allows them to give Trump the win without, you know, technically giving him the win. So again, no opinion here. We don't know exactly why the court's conservatives decided to stay the court order. I should rephrase that. We do know why, but we don't know what their explanation would have been.

Rhiannon: Yeah, we don't know what they're saying about why, because they don't say anything.

Peter: Right. So we do have some hints via the briefs submitted to the court by the Trump administration. Those briefs don't really argue for the constitutionality of the action. They don't say, "Hey, this is all constitutional," probably because that would be kind of a waste of time, I think. What they do is they talk about standing, right? The idea that the people who are suing don't have the right to sue because they're not injured or they're not injured directly enough. They talk about the court's jurisdiction over personnel decisions. This is something that sort of fits into the unitary executive concept, the idea that they believe that courts shouldn't be able to interfere with the president's staffing decisions within the executive branch. They talk about reinstatement not being a proper remedy here.

Peter: So those are the sorts of arguments we are seeing the Trump administration make. It seems like a decent guess that the court would try to hang their hat on standing here, but I think it's worth looking at a similarly situated case from the Biden administration. Biden attempted a few years back to issue a moderate amount of student loan relief, if you recall. We did an episode on the resulting Supreme Court case, Biden v. Nebraska. Biden's effort was challenged by some states that had very questionable claims to standing—probably more questionable than the plaintiffs in this case. But there, the court prevented the administration from implementing the plan while the case was being decided. So you have two policies being challenged. In both cases, the administration says, "Hey, the challenging party doesn't have standing." With Biden, the court blocks the policy. With Trump, they let it proceed. Simple enough. I don't think you're gonna get much clearer than this.

Rhiannon: Yeah.

Peter: And once again, very similar to birthright citizenship, the substantive issue that they're dodging here is an extremely simple one. Everyone knows that Trump cannot unilaterally abolish the Department of Education, so why can't the court just say that? To use the student loan case as an example again, the court struck down Biden's student loan plan because there was no clear authorization from Congress, it said. Now it couldn't be more obvious that there's no clear authorization from Congress to shut down the Department of Education.

Michael: They literally put in the law, you can't shut down the Department of Education.

Peter: It says in the law you can't do this. So, like, what kind of fucking transparent charade is this? Like, who were they trying to fool with this bullshit? It's just exhausting; it's just a waste of time. And I feel a lot of people complain about the lack of an opinion, and they're like, "They should be forced to explain themselves." And I think we've talked about this before, but I'm like, who cares? Who cares what kind of fucking bullshit they would have used to justify this, right?

Rhiannon: Yeah.

Peter: Should they have to work more? Sure. But what's the point? What's the point of reading this? This is like you have someone in your life who's a serial gaslighter and manipulator, right? Does letting them explain themselves help?

Rhiannon: Right. It doesn't do anything.

Peter: No.

Michael: I also just think there are a bunch of annoying legal pedants whose entire mode of operating is to parrot at you what the Supreme Court said. And they have nothing here, right? And that's nice. They can't be annoying in my mentions, which is the most important thing.

Rhiannon: Yeah. And for the libs, for, like, lib commentators, you know, who are saying that they should have to explain themselves in every case and every shadow docket decision, you know, it's like, for what? So that you can then, like, take them in good faith and sort of argue and be like, "Oh yeah, actually that's kind of reasonable," when it's ridiculous, right? We talked about this in the birthright citizenship context, where a bunch of people turned around from that decision and were telling you that, "Oh yeah, this is actually kind of a good—a good decision about nationwide injunctions, because nationwide injunctions are bad." It's just like, yeah. No, it's kind of—it's kind of on the lack of an explanation here, the lack of an opinion here to justify the ridiculousness, the absurdity actually is sort of mask off in its own way, you know?

Michael: Yeah. It's more honest about what's going on here than if they wrote something.

Rhiannon: Yeah.

Michael: And it's more illuminating about what's going on here than if they wrote something.

Peter: Right.

Rhiannon: Right.

Michael: So there is a dissent. There's a 19-page descent, medium length, I'd say, from Sotomayor, joined by the two other liberal justices. It's a mixed bag, I think. There's some good stuff in there, there's some stuff missing and there's some bad stuff in there is what I'd say. An archetypal mixed bag.

Michael: So the good stuff, I think, is she does a very nice job of highlighting one, like, the specific correspondence between, like, offices within the department that are just completely gone, that couldn't be by statute were forbidden from being eliminated. She also does a nice job of illustrating the way this has immediate impacts. She notes one college that required recertification for financial assistance, for federal financial aid. And instead of taking the average seven weeks for that to happen, with the reduced staff, it took 18 or 19 weeks. In that time period, their spring enrollment period came and went, and so they weren't able to enroll people on federal financial aid, which was 80 percent of their incoming class. So all of a sudden, 80 percent of their students are not there. They're losing tuition as a result. Like, that's devastating. That's absolutely devastating.

Michael: What's missing, I think, is the flip side of that, which is, what about those kids? She doesn't—she doesn't talk about the kids who are all of a sudden not enrolled in college, you know? Like, that's a major fucking problem for them, too, because she's talking about it in a way of, like, "This gives us standing. This is a real harm here that should give this school standing." But it's missing, I think, something humanizing and real. She does a good job of also highlighting how lazy the government is being, how they don't rebut any of these, you know, factual findings from the district court. They don't try to argue that it's legal, right? She's sort of like, "Look, we all—we can all see what's going on here." And she doesn't say this, but implicitly, I think what it highlights is how very different this is from Trump One. I think if you go back and listen to, like, our episode on Trump v. Hawaii, for example, we talked a lot about ...

Rhiannon: The Muslim ban case.

Michael: Yeah, the Muslim ban case. We talked a lot about how the court put them through their paces, and made them keep coming back with better versions of arguments and better versions of the order until they were satisfied with something that they felt was, like, facially plausible. Even though everybody knew it was a Muslim ban, and that was the intention, and that was, like, the desired effect. You know, they could say with a straight face, "It's not a Muslim ban." And then here, you know, they're like, "Whatever. Fucking fire half the DOE. That's fine," right?

Rhiannon: Yeah.

Michael: Like, go wild.

Rhiannon: Yeah.

Michael: What bothers me about this opinion is very early on, she's describing—in her introduction, she's describing about the majority. "It hands the executive the power to repeal statutes by firing all those necessary to carry them out. The majority is either willfully blind to the implications of its ruling or naive, but either way, the threat to our Constitution's separation of powers is grave." And I just want to say that's a false dichotomy. There is a third possibility that I think is far more likely than the two she mentions, is that they're not willfully ignorant and they're not naive. They know what the implications are, and they approve of the implications because they want Donald Trump to close the Department of Education.

Peter: Right.

Michael: And they do not care whether he follows procedures. That's it. They're on board. They're on board with this project, and they're saying, "Fuck it, go for it." So do not do their job for them by pretending they're better than that.

Peter: Right. Like, "Oh, I don't—I don't think you realize the implications of what you're doing." It's like, of course they do.

Michael: What the fuck are you talking about?

Rhiannon: No, no. Yeah, they fully know. They fully know.

Michael: They all read your dissent.

Rhiannon: Exactly. Exactly. Exactly.

Peter: They're making fun of you behind your back.

Rhiannon: And we were talking in prep for this episode about, like, how, you know, in the five years we've done this podcast, like, you know, the conservatives on the Supreme Court do act a little bit differently. But to me, I was thinking about it, like, the liberals really don't. Like, the liberals on the Supreme Court still have yet to say, "You guys are doing policy that you approve of, no matter the procedure or the legal steps to get there. You are doing results-oriented wholesale approval and rubber stamping of what the Trump administration wants every step of the way." You know? They've yet to do this.

Michael: I think Ketanji Brown Jackson has done that. But I think Kagan and Sotomayor are, like, clearly stuck in their ways, I think.

Rhiannon: Yeah. Sad!

Peter: Yeah. That's why it would have been cool for Sotomayor to retire.

Michael: Mm-hmm.

Peter: But here we are. I'm gonna tell you this: if she dies during this term, the episode we're gonna put out is gonna be so disrespectful to her as a human being that it will shock you.

Michael: Yeah.

Peter: Brace yourselves now.

Michael: Yeah. And I like Sotomayor. [laughs]

Peter: Me too. That's why I feel like we need to say it.

Rhiannon: Yeah. The way I just disassociated to prevent myself from thinking of how angry I would be, you know? Like, I just clocked out real, real hard there.

Michael: Yeah.

Peter: If she heard the episode, she would hold it together for a few more years. You know what I mean?

Michael: She would be like, "I gotta avoid ..."

Peter: She would, like, bear down and just power through.

Michael: Maybe now's a good time for a break.

Peter: All right, we're back.

Rhiannon: Okay. So it's these 1,300 jobs we're talking about, 1,300 staffers of the Department of Education who have been fired. And that is sort of technically, in a really narrow sense, what this case is about, certainly. But I think when we're talking about the broader question of the Trump administration dismantling the Department of Education out in the open, telling us that they're doing it. We should talk about what is important about the Department of Education. What does the Department of Education actually do?

Rhiannon: So the Department of Education is largely responsible—is the federal agency largely responsible for oversight of public school education, and enforcing discrimination laws in schools, and distributing aid money for schools that educate low income students and students with disabilities. But also for distributing, like Michael just said, federal student loans, administering aid money to students themselves. So the dismantling of the Department of Education leaves really, really, really big questions about how states will then distribute this federal money that is supposed to be intended to help educate students who are poor, who are disabled, who are still learning English and need extra support.

Rhiannon: Title I, massive, massive federal program. Title I is intended to create an equal playing field in public schooling, is intended to get money to schools that have weak property tax bases, get money to schools in rural areas where there isn't a lot of population to get property taxes from. Those kinds of schools depend on this money to pay teachers, to pay for buses, to pay for classroom technology.

Rhiannon: And what the Department of Education does is not just kind of like hand this money out, but you have to think about it as, like, federal oversight, accountability and administration of these massive, massive millions and millions of dollars. So for example, you know, states like Mississippi and Alaska, they depend on this funding to fund more than 20 percent of school districts' costs in their state. And so without the Department of Education, not just in distributing these funds, but acting in its oversight functions, there's a lot of threat here terms of how now state leaders, local leaders are gonna use this money, could spend the money on anything they want, including vouchers to attend private school, making big moves to really defund in a very serious way public education across the country.

Rhiannon: The IDEA program is a massive part of what the Department of Education does. This is the Individuals with Disabilities Education Act. That is the administration—again, oversight, distribution of money and support to meet the needs of children with disabilities in public schools. Look, the Department of Education sent more than $18 billion in supplemental funding annually to local school districts to provide this kind of extra academic support to schools with high rates of poverty, to schools with children with disabilities, which is all public schools.

Peter: Yeah, and by the way, I mean, just to make this concrete, without this funding, many, many public schools that currently provide services for special needs students will no longer be able to.

Rhiannon: Yes.

Michael: Just that's it.

Peter: That is a simple fact about how this will play out. I don't know exactly what percentage, but substantial percentage.

Rhiannon: Yes. And the Department of Education also has a Department for Civil Rights and its own office for Civil Rights which has been hit incredibly hard by these layoffs. Because of these firings, seven of 12 regional offices for the Department of Education's Office of Civil Rights have been completely de-staffed. That's lawyers who work there, administrative staff, everybody. Seven of twelve regional divisions for the Office of Civil Rights for the federal Department of Education no longer exist, do not have staff. And so what does that mean for students? What does that mean about what the Department of Education used to do? Well, it means that legal protections that hold schools and colleges that receive federal funds accountable, this is legal protections against discrimination from Islamophobia to racism to discrimination against students with disabilities, these offices to enforce that accountability on schools do not exist anymore.

Peter: Which makes sense because after Mahmoud, a lot of that discrimination is just people's religious right anyway. So why have an office to oversee it?

Rhiannon: Yeah, it goes hand in hand, to be honest. You know, there's also Title IX. Massive, massive, very important federal law, a civil rights law that was enacted back in the early 1970s as part of the education amendments, as part of the push to create the Department of Education. And Title IX prohibits sex-based discrimination in any education program or activity that receives federal financial assistance. If you are a woman who played sports in public school growing up or in college, if you are somebody who was able to make a complaint about sexual harassment or sexual assault at a university, and that process laid out according to administrative standards, the Department of Education administers this, you guys. Like, dismantling it has a massive, massive effect—not on curriculum, actually. Not on curriculum, but on the way public schools and universities in this country run. The extent to which they are held accountable to fair standards, the extent to which they fund in a fair way students of all kinds receiving the education that they need. It's a massive stab at American democracy.

Michael: Yeah.

Peter: That's just like a glance at what the Department of Education actually does.

Rhiannon: Yeah, brief summary.

Peter: I would like to give you a glance at how the conservative political movement talks about the Department of Education. I'm gonna read a quote from Project 2025 to you. Here goes. "In contrast to DOJ's long history, the Department of Education is a creation of the Jimmy Carter administration. The department is a convenient one-stop shop for the woke education cartel, which as the COVID era showed, is not particularly concerned with children's education. Schools should be responsive to parents rather than to leftist advocates intent on indoctrination. And the more the federal government is involved in education, the less responsive to parents the public schools will be. This department is an example of federal intrusion into a traditionally state and local realm. For the sake of American children, Congress should shutter it and return control of education to the states. Short of this, the Secretary of Education should insist that the department serve parents and American ideals, not advocates whose message is that children can choose their own sex, that America is systemically racist, that math itself is racist, and that Martin Luther King Jr's ideal of a colorblind society should be rejected in favor of reinstating a color conscious society."

Rhiannon: My God!

Peter: So now a couple things. Obviously, they are advocating for the abolition of the department, but you can see, based on their subsequent caveat and in fact, the longer chapter on the Department of Education, which I read too, they're not really anticipating that it would be shut down. And so they're like, "All right, but here's how we weaken it even if it's not shut down."

Rhiannon: Yeah.

Peter: Right? Which is interesting in part because I think that this means that Trump is to the right of Project 2025 in some respects. At the very least, he sort of understood that this is something where you could move ahead. And why not? Why not just go for it all? No need to do this incrementalist shit.

Rhiannon: Yeah, exactly.

Peter: Let's just try to wind down the Department of Education and see how it goes.

Rhiannon: Yeah. Which should be—you know, we talk about how this is, like, blatantly illegal, right? And you see kind of in Project 2025 how they're doing the, like, little piecemeal thing, like you're saying, Peter. Like, not outright talking about dismantling it explicitly. And then Trump takes it explicitly to the dismantling stage himself. There's also years and years of the conservative attack on the administrative state in general. We know that conservatives over the past 40 years, they don't like the Department of Education. They say it's like a woke Jimmy Carter creation agency, right? And yet—and yet federal court decisions over years, including by conservative judges—there's a memo that later Supreme Court justice William Rehnquist wrote when he worked for the federal government. All of these things over the past 40 years, despite their hate for the Department of Education and the administrative state in general, where they're saying, like, "There's not really a legal argument that the president can completely dismantle a federal agency that Congress created." So what you have here is Trump kind of like pushing, like being a bit of a vanguard, and then the rest of the right wing movement just getting in line and completely supporting it.

Michael: Yeah. You know, and I do think—I think this is—this is very much a result of the Supreme Court itself, this Trump getting to the right of Project 2025. You know, I saw this described once, the way Trump operates, as something like—they called it, I think, "active intelligence gathering." Which makes him sound very strategic, and he's not. But the concept, I think, is useful. And it's like, imagine if you're, like, laying siege to an old time-y fort or something, right? You want to know where their defenses are strong. You could try to sneak in and look around, or you could try to intercept a message or something. But one thing you can do is just attack it and see where you get a lot of resistance and see where you don't, and then back off and reformulate your strategy based on that information.

Michael: That's the idea of active intelligence gathering, that you learn about your opponent by just pushing them and seeing how they respond. That's what Trump does. He just pushes. He pushes, he pushes. And if you push back, he might stop, he might even back up a little. But if you give, well, then he takes that space and he pushes more, right? And so, you know, the Supreme Court, they gave him fucking immunity. They gave him more than he asked for in the immunity case. They gave him a polite suggestion to make every effort to get the people back from CECOT, but did not order him to do so. They signaled very strongly to him that they were not going to get in his way. So why wouldn't he go further than Project 2025? Why wouldn't he go nuts? He's gonna go nuts until somebody tells him no. This is what's happening with the universities, right? You negotiate with him. There was a quote from a UCLA person saying within hours of them "settling," quote-unquote, with Trump, the DOJ was on their back. Like, you give ground, he takes it, and he goes for more. It's only by standing together and refusing to budge do you have any hope of resisting this guy. And the court isn't interested in resisting him.

Rhiannon: Exactly.

Michael: They want to open the gate. They want him to run wild, and that's what he's doing.

Rhiannon: Yeah. Tell us where you want to go, we'll give you the ticket. Yeah.

Peter: You know, I think this also kind of fits in the tradition of a longstanding conservative strategy, where you deprive the government of resources, and you thereby make it an unreliable provider of jobs and resources, which lowers people's opinions of the government and also creates room for private actors to step in.

Rhiannon: Yeah.

Peter: So, like, there's a long-time conservative policy strategy called "starving the beast," which is where you cut taxes repeatedly, and if you cut them enough, the theory goes, you essentially force the government's hand. You force the government to become smaller because it can no longer sustain itself. You could see this as a similar approach where they just gut these agencies, the Supreme Court lets them do it, at least for long enough that it sticks, right? And then even if ultimately the court says, "Oh, this is unconstitutional," it's too late, right? They've already starved the beast. They've weakened the government function permanently, at least for the foreseeable future.

Rhiannon: Yeah. Are they just gonna, like, start up another agency with 4,000 employees? Like, it's not going to happen.

Michael: Yeah. A lot of those people will not come back because of the instability. But even assuming you could get 1,000, 1300 people back, the hiring process, the screening, the interviews, the training.

Peter: Incredibly cumbersome. Not to mention who—forget the Department of Education specifically, who wants to go get a government job now if every four years some lunatic is gonna come into office and fire you, right? Make your department a shell. No one wants that job. So what was previously a really nice, stable career no longer is. This is very explicitly part of the strategy, right? This is something that conservatives talk about when they talk about hollowing out the administrative state. They talk about making the position of a civil servant unstable.

Michael: Yeah. And I think what this really starts to highlight too, is like Peter just said a minute ago, what are you gonna do even if the court says it's unconstitutional a year later? But that makes me think, like, what's a good remedy for this type of harm? And how do you conceptualize the harm is important. One person being unjustly fired, the remedy is something like reinstatement or back pay or both. One remedy for an institution like this college that lost a bunch of tuition is to reimburse them for their lost tuition. But what do you do when the harm is this large and this diffuse?

Rhiannon: Yeah. It's societal. Yeah.

Michael: Because we are all harmed by this. That's the thing. When our representatives are drained of power, when our laws, the laws that were duly passed by our representatives and signed by the president and have been in effect for 50 years are just torn up on the whims of some senile freak, we're all harmed by that. And a court can't order a remedy appropriate to that harm. That's the thing. The only appropriate remedy here is a political one that does involve perhaps courts, but it's something like the next Democratic administration sends a lot of people to jail, and disempowers a lot of people and drives them from public life. And that includes people like Chief Justice John Roberts and the five associate conservative justices. I think it should include the organizations that were arguing for this, whatever—Heritage and the Federal Society and all of that. There's no rectifying this without a serious reckoning for the people who are rending the social contract. When you tear up the social contract, the remedy for that is you no longer get to participate in public life and maybe you go to jail. That's it.

Rhiannon: Yeah. Accountability for tearing up the social contract basically looks much bigger than, you know, like, some people get their jobs back or something like that, right?

Michael: Right. Some people get bought out.

Rhiannon: Right. The harm is way, way bigger than that.

Michael: Yeah. Anything short of that is just—it's not good enough. It's not good enough.

Peter: Yeah. One last point I'll make before we wrap up. I want to talk a bit about this unitary executive theory. Now that a Republican is in office, the Court is increasingly enamored with this idea, this legal theory, that the president has a certain level of unfettered authority within the executive branch, right? This is something that, like, Clarence Thomas is a big proponent of, and the other conservatives appear to be warming up if you just sort of like, read between the lines in cases like this.

Rhiannon: Yeah. They're not saying the words "unitary executive theory," right? But, like, all of these decisions—immunity included—like, all add up to, like, this is their vision of how they think the executive branch should be operating.

Peter: And this is an argument that the Trump administration has been making very consistently.

Rhiannon: Yeah.

Peter: Not just that Donald Trump has, like, I don't know, some statutory power to do this or whatever, but that courts have no constitutional power to intervene.

Rhiannon: Yeah.

Peter: This is the sole prerogative of the executive branch. The administration has been, in cases like this, pushing the idea that the president has unilateral discretion to make staffing decisions within federal agencies. But you can see in this case just how awkward and clumsy that formulation is because Congress created those agencies. You cannot fulfill Congress's intent while allowing the president to hollow out whatever agency he wants to, right? Those things cannot really, actually coexist. So the idea of this, like, unfettered president who can just sort of suck the life out of these agencies that are, in fact, created by Congress, it just doesn't make a ton of sense. It's sort of conservatives just sort of wishcasting an authoritarian.

Rhiannon: Yes. Wishcasting an authoritarian. Yes. [laughs]

Peter: They conjure up a legal theory to bolster it, like, "Oh, it's—no, it's not authoritarianism. It's just like the unitary executive theory."

Michael: Yeah.

Peter: But it doesn't really make sense. The system relies upon these, like, power-sharing arrangements, and you can't really get away from it with the whole system collapsing. And I think you see that very clearly in this case.

Rhiannon: Yeah.

Michael: Yeah.

Peter: Anyway, enjoy educating your own kids, everyone. That's how it's gonna be from now on. And look, I might have kids, so I'll be just, I guess, mandatory homeschool for them.

Rhiannon: Oh, my God. Can you imagine Peter homeschooling you?

Michael: Oh, my God!

Peter: Prepare to be smart as fuck if you get homeschooled by me. Prepare to be so fucking smart, dude. Oh my God.

Rhiannon: Can you do math okay, Peter?

Peter: I used to be, like, a gifted math student until they started throwing letters in there. I was like, "What is this?" It's a true story that I was, like, truly an elite math student. I got, like, pulled into, like, a class that just had, like, three other kids in it. One of them ended up being the high school valedictorian. The other one went to Yale. And then there was me. And when calc hit—like algebra, I started to fade a little bit. When calc hit, I was bombing. It was the first time I ever was bad at school.

Rhiannon: Uh-huh.

Peter: It's also a twofold problem. I also went off Ritalin this year. So it was—it was really a perfect storm. But I'm telling you, no amount of Ritalin would have helped me with that. I was just like, all of a sudden I had my friends being like, "Yeah, this makes natural sense to me. Like, I understand cosines intuitively." And I was like, "What are you talking about? What is going on?"

Rhiannon: We know Michael is good at math.

Michael: Yes.

Peter: Point being up until, like, eighth grade, I'm good. I got these, kids. After that, you might as well join the Amish because you're on your own.

Rhiannon: [laughs]

Michael: Well, if it gets there, I was an algebra teacher.

Rhiannon: Yeah. Michael will homeschool your kids for math, at least.

Peter: That is all I ask.

Rhiannon: I'll teach them Marxism, radical Islamic thinking, you know, Sharia law, things like that.

Peter: Yeah, I'll call you, for sure.

Michael: [laughs]

Peter: All right, folks. Next week we're taking off, but then we are coming back with Medina v. Planned Parenthood, another case from this past term, about whether Planned Parenthood can sue when a state excludes them from the Medicaid program. Follow us on social media @fivefourpod. Subscribe to our Patreon, Patreon.com/fivefourpod—all spelled out—for access to premium and ad-free episodes, special events, our Slack, all sorts of shit. We'll see you in a couple weeks.

Rhiannon: Bye y'all.

Michael: Bye, everybody.

Michael: 5-4 is presented by Prologue Projects. This episode was produced by Dustin DeSoto. Leon Neyfakh provides editorial support. Our website was designed by Peter Murphy. Our artwork is by Teddy Blanks at CHIPS.NY, and our theme song is by Spatial Relations. If you're not a Patreon member, you're not hearing every episode. To get exclusive Patreon-only episodes, discounts on merch, access to our Slack community and more, join at Patreon.com/fivefourpod.