Hello and welcome to the fifth post of Talking Points! According to recent reports, Donald Trump is preparing to sign an executive order, which will effectively terminate the Department of Education. This would seem to be an extension of his administration’s practice of reducing the size of the federal government, and an extension of the Republican party’s effort to end it. Considering this, it is critical to understand the Department of Education, the effort to terminate it, and the nature of federalism. In doing so, I hope to demonstrate why the Department of Education should not be terminated, by Executive Order or law.

The Department of Education originated with the Department of Health, Education, and Welfare, to coordinate federal government activity concern healthcare, education, and social security. It continued in this form until 1979, the Department was broken up, into the separate Department of Health and Human Services, and the Department of Education. The Department of Education was formed not to engage in education, but to coordinate various federal programs concerning education. Since its inception, the Department has proven a controversial one, especially among Conservative Republicans concerned about federalism and bureaucracy. For example, the Department was created under President Jimmy Carter, a liberal Democrat, whose successor, President Ronald Reagan, a conservative Republican, attempted to terminate it.

In order to understand the controversy behind this Department, we must understand federalism. The Constitution of the United States grants limited powers to the federal government, powers which apply to everywhere in the United States. At least nominally, any power not granted to the federal government by the Constitution is relegated to the states. Although much debate exists about how the federal powers can be interpreted, education has never been a power that the federal government has been thought to have. As such, each state is solely responsible for overseeing education in their state. However, the federal government has created programs which although they do not control education, do affect education.

Such functions include federal student aid, the collection of statistics about educational performance, the enforcement of civil rights law about education access, the administration of grants to schools for the education of students with disabilities, immigrants, and low-income students, the funding of federally-chartered educational institutions, and other various education-related functions. Note that these functions do not involve the education of students. Whether or not these specific functions are Constitutional is a matter of Constitutional law, but it is clear that that the Department of Education does not take the power to educate from the States. This brings us to the other criticism levied at the Department, that of a lack of necessity.

Without a Department of Education, its functions could be continued among the various other Departments. For example the funding activities could become the responsibility of the Department of the Treasury, the enforcement of civil rights law could become the responsibility of the Department of Justice, and the collection of statistics could become the responsibility of its own agency, or another Department. Thus, the Department has been criticized as an unnecessary Department which creates needless bureaucracy, however I find this argument flawed for several reasons.

In 2024, the Department of Education had a budget of about 238 billion dollars, approximately 30% of the 758 billion dollars that the United States spent on the non-defense part federal discretionary budget. That is to say, of all money the federal government chose to spend on things other than defense, rather than what it was obligated to spend, 30% of it went to the Department of Education. Most of it was spent on federal student aid and grants, which are given on the basis of need rather than profitability. Thus, as a result of its termination, a considerable bureaucracy would still need to exist, to actually administer the grants and loans, which would require more staff and responsibility for the Department of the Treasury, assuming that it would absorb the responsibility. This would also be true for the Department’s other functions.

Even if it is the case that the criticisms levied at the Department of Education are true, it cannot be terminated by Executive Order, as President Trump states he wants to. The Department exists as a result and operates according to the Department of Education Organization Act, a federal law. Thus an Executive Order, which is an instruction by the President on how to enforce federal law, cannot eliminate it. Language on the draft of the Executive Order reported to attempt to eliminate it attempts to bypass this restriction by stating that Linda McMahon, Secretary of Education, should “take all necessary steps to facilitate the closure of the Education Department based on the maximum extent appropriate and permitted by law.” Considering that such an effort to closure would likely impact its operations, this strikes me as an illegal executive order intended by work around Congress.

As such, I contend that the Department of Education does not violate the principle of federalism because it does not provide education. In addition, I would also argue that to eliminate it and transfer its operations to other agencies, would pose more of a bureaucratic problem than is created by its own bureaucracy. Furthermore, because of the fact that the Department was created by law, it can only be eliminated by a law, not by Executive Order. In summary, the Department of Education should be preserved, but if it is eliminated, it can only be legally eliminated by Congress, not President Trump.