The Supreme Court ruled on Monday that the Trump administration may fire more than half of the Department of Education’s workforce — mass terminations that, in Education Secretary Linda McMahon’s words, are “the first step on the road to a total shutdown” of the entire department.
The Court’s decision in McMahon v. New York, was handed down on the Court’s “shadow docket,” a mix of emergency motions and other expedited matters that the justices often decide without full briefing or oral argument. As is often the case in shadow docket decisions, none of the Republican justices explained their decision. Justice Sonia Sotomayor wrote a dissent, which was joined by both of her fellow Democratic justices.
Technically, the Court’s decision in McMahon is temporary — it permits the Trump administration to fire most of the Education Department’s workers while this lawsuit is still pending in federal court. But it is far from clear how the Education Department could unwind a decision to fire more than half of its over 4,000 employees.
The McMahon decision is particularly unnerving because it suggests that President Donald Trump is allowed to “impound” federal spending — unilaterally refusing to spend money or to continue federal programs that are mandated by an act of Congress. While McMahon does not explicitly authorize impoundment, it allows the Trump administration to fire so many federal workers, in so many key roles, that the practical effect is to cancel entire federal programs.
Impoundment is unconstitutional, and even some of the Court’s Republicans have previously said as much.
As Justice Brett Kavanaugh wrote in a 2013 opinion when he was still a lower court judge, “even the President does not have unilateral authority to refuse to spend the funds. Instead, the President must propose the rescission of funds, and Congress then may decide whether to approve a rescission bill.”
If the president had the power to impound funds, he could effectively cancel any federal law by cutting off the spending authorized by that law or cutting off the money necessary to enforce it.
Until recently, the argument that the president may impound funds was considered so ridiculous that even Republican legal luminaries rejected it out of hand. As future Chief Justice William Rehnquist wrote in a 1969 Justice Department memo, “it is in our view extremely difficult to formulate a constitutional theory to justify a refusal by the President to comply with a congressional directive to spend.”
The plaintiffs in McMahon, a coalition of states and a school district which stand to lose funding because of Trump’s mass firings, argued that only Congress may abolish an entire federal department, or otherwise cancel federal spending programs that are mandated by federal law. And, as Sotomayor explains in her dissent, the mass firings her Republican colleagues just greenlit effectively destroy many such programs.
The Trump administration, for example, seeks to fire “the entire Office of English Language Acquisition, which Congress tasked with administering the Department’s ‘bilingual education programs.’” It also seeks to eliminate “all employees within the Office of the General Counsel that specialize in K–12 education funding and IDEA grants; 7 of 12 regional divisions of the Office of Civil Rights; most of the Federal Student Aid office responsible for certifying schools so that their students can receive federal financial aid; and the entire unit of the Office of Special Education and Rehabilitative Services charged with providing technical assistance and guidance on complying with” the Individuals with Disabilities and Education Act.
All of these firings, moreover, are the first step in implementing a Trump Executive Order with a section entitled “Closing the Department of Education and Returning Authority to the States.”
Thus, the Republican justices appear to have ruled that Trump may do indirectly what the Constitution forbids him from doing directly. Even if they will not ultimately permit him to impound the Education Department’s funding — thus closing the department by permitting Trump to strip it of all of its money — it appears that the GOP-controlled Court will permit Trump to achieve the exact same outcome by firing the department’s employees.
McMahon solves a mystery that is less than a week old
Last week, in Trump v. American Federation of Government Employees (AFGE), the Supreme Court issued a similar decision reinstating a different Trump executive order which called for mass firings. That order required federal agency leaders to come up with aggressive plans to fire agency employees, but did not provide many details on who will be fired.
Significantly, the Court’s decision in AFGE split the three Democratic justices. While Justice Ketanji Brown Jackson wrote a dissent saying that Trump cannot engage in a grand restructuring of the federal workforce without congressional approval, Sotomayor wrote a concurring opinion arguing that judicial intervention in the AFGE case is premature.
According to Sotomayor, while the executive order at issue in AFGE required agencies to come up with plans for mass firings, “the plans themselves are not before this Court, at this stage, and we thus have no occasion to consider whether they can and will be carried out consistent with the constraints of law.”
Sotomayor, in other words, would have waited for the agencies to release their plans, and then she would have determined whether any of these plans make such deep cuts that they amount to something like an unconstitutional impoundment.
The McMahon case, by contrast, presented the same issue that Sotomayor anticipated in her AFGE concurrence. Secretary McMahon has already come up with a plan to fire more than half her department’s employees, and that plan was before the Supreme Court. So Sotomayor and her colleagues could determine whether any of these cuts are so deep that they effectively eliminate federal programs mandated by Congress.
Now that this issue was properly before the Court, however, Sotomayor’s Republican colleagues appear to have come out in favor of impoundment.
So why did the Republican justices reach this conclusion?
Because the justices in the majority did not explain their decision in McMahon, it is impossible to determine with any certainty why they ruled in favor of Trump. But Sotomayor’s dissent summarizes the Trump administration’s legal arguments, and thus offers some window into why this decision may have come down the way that it did.
The administration’s primary argument was that the plaintiffs in this case lacked “standing” to challenge the mass firings — before a party can bring a federal lawsuit, they must show that they were injured in some way by the defendant they hope to sue. Trump’s lawyers argued that the plaintiffs in this case “failed to demonstrate an ‘actual or imminent’ harm fairly traceable to” Trump’s executive order.
But, as Sotomayor argues, this “claim is belied by both the record and common sense.” The plaintiffs named several specific injuries that have already resulted from terminations that have already taken place. A state college, for example, “did not receive recertification for one of its campuses in time for the start of the spring 2025 semester” because the Education Department office that provides that certification was so understaffed. Because of this failure, “the school was forced to forgo admitting students eligible for federal financial aid, and the total enrollment for the term was less than one-fifth of the expected size, costing the college lost tuition funds.”
The Trump administration also argued that its decision to fire many Education Department employees may only be challenged at the Merit Systems Protection Board, a defunct agency that is currently unable to do anything at all because it lacks the quorum it needs to operate. And it argued that the lower court’s order swept too broadly.
Because the Republican justices did not explain their decision, however, we cannot know which, if any, of these arguments persuaded them. These justices’ failure to explain themselves may also have needlessly sabotaged the plaintiffs’ case.
If the Republican justices believed that these plaintiffs lack standing, for example, their lawyers could have found a different plaintiff or filed an amended complaint alleging additional injuries resulting from the mass firings. If the GOP justices believed the lower court order halting the firings was too broad, that court might still issue a narrower order.
Instead, the Court’s Republican majority gave the thumbs up to mass firings, without any explanation whatsoever. That decision, moreover, suggests that the Republican justices may fundamentally alter the balance of power between Trump and Congress — effectively giving Trump the unilateral authority to repeal federal laws.
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