Preface: Although I am committed to avoiding personality, policy, politics, and party in these blogs, I must cross that line in considering President Trump’s March 25, 2025, Executive Order entitled “Improving Education Outcomes by Empowering, Parents, States, and Communities.” I do so because I am offended by the stark incompetence demonstrated in the document, which actually does not address empowerment of anyone and does not provide any indication of how outcomes will be improved. After law school, I joined the Department of Justice as an Honors Employee. My major task was supervising investigations, which revealed my hidden competence in planning and organizing activity. After that experience, I became a planner for the State of Michigan, serving in the Executive Office of Governor William G. Milliken. I became head of a State Planning Agency, implementing federal law and state policy through writing and administering plans for and distribution of federal appropriations (and state and local matching funds). That experience colors my judgment about the President’s Executive Order, which attempts to close the federal Department of Education without providing any planning whatsoever.
Closing the federal Department of Education has been a favorite topic among conservatives, who assert a need to return control of education to the states. President Trump’s Executive Order of March 20, 2025,1 not only failed to acknowledge that closure would be a planning challenge, but also failed to make the major case–which would be that the concept of federal involvement educational policy is unconstitutional.
That case is easy to state because the Constitution of the United States and the Bill of Rights that amended it contain neither the word “education” nor “educate.” The Constitution does not include control of education as one of the powers delegated to Congress in Article I, Section 8. Nor is control over education reposed in the President or his cabinet, who are the executive officers of the United States. The Tenth Amendment to the Constitution says “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” So, the President has no authority regarding education; neither does Congress.
The discussion of federal involvement in education goes back at least as far as the Johnson administration–that’s Andrew, not Lyndon.2 The federal tactic, even before the first President Johnson, apparently was to avoid the constitutional implication with a “bribe” to the states through benefits–think the Morrill Act of 1862.3 The history of federal involvement in education is beyond the scope of this blog piece, but that history should be considered in justifying closure of the federal Department of Education.
What does this order do–at least beyond arguably fulfilling campaign rhetoric? Like many of the President’s recent documents, it asserts presidential authority under the Constitution;4 the order cites neither a specific constitutional provision nor any particular law that give him authority to act.
This blog piece focuses on the content of President Trump’s Executive Order of March 20, 2025, which has only three sections: (1) Purpose and Policy, (2) Closing the Department of Education and Returning Authority to the States, and (3) General Provisions. But the order states no plan and includes no strategy.
Taking the third section first, the President makes a broad disclaimer–the order does not impair or otherwise affect the authority of any executive department or agency (“or the head thereof); it does not affect the functions of the Director of the Office of Management and Budget (including legislative proposals); it requires that the order be “implemented consistent with applicable law and subject to the availability of appropriations,” and it “is not intended to, and does not, create any right or benefit . . . by any party against the United States.”5
In Section 1, President Trump offers little justification for his concern about education and fails to mention that the possibility exists that the present system is arguably unconstitutional. He asserts that the federal program and dollars have “plainly failed,” that much money has been spent, that the Department of Education is “one of the newest Cabinet agencies,”6 that the President who urged its creation (Carter) received the endorsement of the nation’s largest teachers’ union, that the Department has become entrenched, and that it maintains a public relations office. He concludes both that the Department is failing and that test scores are low.
The President asserts that closing the Department of Education would “drastically improve program implementation in higher education,” but does not say how. He adds that the Department is not a bank. Then, he concludes that the Department’s “main functions can, and should be returned to the States,” a conclusion that does not follow from his stated support for closing.
In Section 2 of this order the President mandates two things: (1) that the Secretary of Education take all necessary steps to facilitate the Department’s closure and return authority over education to the States, and (2) that “illegal discrimination” labelled “diversity, equity, and inclusion” be terminated.7
The President posited no role for Congress. Nor did he address the question of reauthorizing either the Higher Education Act or the Primary and Secondary Education Act. He did not say he would veto an appropriation of funds to continue current funding levels for the Department. He did not designate or form a group to plan an orderly transition of control to the states.8 He did not recommend planning a transition of current federal appropriations to cover transition of current federal educational efforts to the states.
What seems likely is that the President’s advisors recognized the complexity of undoing what Congress, former politicians, past political leaders, and his predecessors as President have done. Awareness of the challenges, realization of his limited authority, and a desire to fulfill his campaign promises limited his alternatives. His campaign rhetoric made some sort of action necessary. This order was a political alternative to actually doing something.
No person with experience as a planner could be satisfied that this Executive Order was a plan.
About the Author: Don LeDuc is the retired president and dean of Cooley Law School. His book, Michigan Administrative Law, is revised and published annually by the West Group. He is a member of Scribes, the American Society of Writers on Legal Subjects, and received the Golden Pen Award from the Legal Writing Institute. This article is part of a multi-part series discussing the meaning of the U.S. Constitution's words.
1 The Executive Order is entitled “Improving Educational Outcomes by Empowering Parents, States, and Communities.” This objective remains undeveloped in the order.
2 For those interested in that history, and related discussion, I recommend the several items that can be found on the Internet, particularly within Wikipedia.
3 12 Stat. 503 (1862). Note that Abraham Lincoln was President then.
4 He has no authority under the Constitution other than asking the head of the Department of Education to provide an opinion.
5 Although this or similar language seems to be included in most of the President’s orders, this section is as close as this order comes to acknowledging that closure is a challenging endeavor.
6 This assertion is relevant only to an argument that the system is unconstitutional.
7 Section 2 begins with the following language: “to the maximum extent appropriate and permitted by law.” Arguably, the President already illegally impounded considerable appropriations made by Congress to the Department. See Constitutional Power of the President to Impound Appropriations, Cooley Law School website.
8 Perhaps that approach is implied by the second section of the order.