In this episode, Derek Black of the University of South Carolina School of Law and Neal McCluskey of the Cato Institute join to discuss this recent emergency docket decision and explore the history of federal involvement in education.
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Today’s episode was produced by Bill Pollock and Griffin Richie. It was engineered by Bill Pollock. Research was provided by Gyuha Lee, Griffin Richie, Cooper Smith, Trey Sullivan and Tristan Worsham.
Participants
Derek Black is a professor of law and the Ernest F. Hollings Chair in Constitutional Law at the University of South Carolina School of Law. He also directs the law school’s Constitutional Law Center. He is the author of a leading education law casebook and Dangerous Learning: The South’s Long War on Black Literacy.
Neal McCluskey is the director of the Cato Institute’s Center for Educational Freedom. He is the author of several books, including Feds in the Classroom: How Big Government Corrupts, Cripples, and Compromises American Education.
Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also professor of law at The George Washington University Law School and a contributing editor of The Atlantic.
Additional Resources
- McMahon v. New York (2025)
- Scott Harris with Derek Black, “Trump’s Targeting of Education Department Could Eliminate Dozens of Federal Programs for Millions of Students Nationwide,” Counterpoint (Feb. 10, 2025)
- Derek Black, “Dangerous Learning: The South’s Long War on Black Literacy,” (2025)
- Neal McCluskey, “Right Supreme Court Call on Downsizing the US Department of Education,” Cato at Liberty (July 14, 2025)
- Neal McCluskey, Feds in the Classroom: How Big Government Corrupts, Cripples, and Compromises American Education, (2007)
Excerpt from Interview: Neal McCluskey argues that most opposition to the Department of Education is rooted in constitutional concerns about federal overreach and emphasizes that while civil rights enforcement is essential, it does not require a dedicated education department.
Jeffrey Rosen: Neal, in Derek's book Dangerous Learning: The South's Long War on Black Literacy, he argues that opposition to the Education Department and federal support for education is centrally connected with race. He talks about the violent lengths that Southern leaders took to repress black literacy, and he argues that this opposition to federal involvement in education continues today to have a racial dimension. To what degree is he right, and to what degree is he wrong?
Neal McCluskey: In terms of the matter of race, I think we need to be clear. I can only speak for myself, but I think this speaks for probably a lot of people who oppose the Department of Education. But I think most or everybody maybe, I can't say everybody, who supports eliminating the Department of Education. I haven't run into anyone who said that the federal government doesn't have a role and an important role in enforcing civil rights. The question is, do you need a Department of Education that does a whole lot of other things in order to do that? My answer is no, we have a Department of Justice for that. But certainly civil rights enforcement is something that the federal government should do. And I think that when you look at a lot of the opposition to the federal Department of Education, a lot of it is grounded, I think, in the Constitution. People saying, look, this is not something that the federal government is authorized to do, so it shouldn't. And then there are a lot of concerns of, do you end up having this federal entity that if you look at the debates about having the federal government first enter in sort of a large way into education in the 1960s with a lot of funding, there were concerns of people who said, look, once you get the federal government doing funding, which it shouldn't do, you then get control.
And what you see with the Department of Education is people are concerned, well, now you're heading even deeper into this dangerous area of federal control. And then actually you can see where we get a lot of federal control, which kind of reaches its peak around 2010 with something called the Common Core, which was not federal, but was sort of coerced adoption of states all in an already existing no child left behind framework where the federal government was on the verge of saying, okay, we're going to tell you that your education systems have to have at their core state standards and state tests and schools are held accountable based on those state tests. And now we're going to tell you what those state tests have to be on. And oh, by the way, you have to use common tests among a whole bunch of states. So we actually were very close to that federal control. And I think a lot of the concern about a Department of Education is about that federal control, which one, many people think is unconstitutional and two is dangerous because you have a very diverse country diverse states, communities, and people.
And it's very worrying that you might have one education answer imposed on them all. So I think that that's the big driver. And I haven't seen that most of the people who are opposed to this are opposed because they think that it is somehow going to do something in race that they don't like. In fact, one of my major concerns is that the current administration is using the power of the federal government to eliminate things that people think are good for correcting lots of problems that we have that are remaining vestiges of terrible discrimination. So when the administration says, well, we're going to get rid of DEI offices, we're going to punish any institutions that have them, that's the sort of thing I worry about the federal government doing, and I wish it wouldn't, but it can because it got heavily involved in funding education.
Excerpt from Interview: Derek Black outlines the dissent’s argument in McMahon v. New York, highlighting concerns that the staffing cuts within the Department of Education may violate g the Take Care Clause or exceed statutory limits on executive authority.
Jeffrey Rosen: Well, let's begin with the Supreme Court's order. The majority opinion was unsigned. We do have a dissenting opinion from Justice Sotomayor, joined by Justices Jackson and Kagan. So perhaps we'll begin with that. Derek, the dissenters talked about the fact that the order might violate the Take Care Clause and the Administrative Procedure Act, and that it was titled “An Effort to Eliminate the Education Department,” which only Congress can do. Tell us more about Justice Sotomayor's arguments in the dissent.
Derek Black: Yeah, I mean, there's this sort of generalized obligation of the Constitution, of course, for the president to take care to execute the laws and do so in good faith. And so there's the argument that rather than implementing the laws, the president's doing something else. But that really gets down to sort of two, I think, sort of key pieces. And one is this idea of usurping Congress in a couple of ways. One would be around spending. Congress has allocated money for various programs to do various things, and now they're saying the president's not doing those, so you are usurping Congress's ability to spend money and to create programs. And then there's also this statutory organization or reorganization. So what Congress originally did with the department was to bring together some functions from health, education, welfare, treasury, and agriculture and bring them all together under the department. And there is a provision that allows the president to engage in certain reorganizations inside the Department. And so the argument here is that Congress put all these in one place, right, and said if the president's going to change the organization, well, there's a limited scope of things that he can do to reorganize within, and he cannot sort of eliminate those that are put there.
Because Congress gives the president certain funds for the president to take care, to sort of do his job to enforce things, right? And so how the president sort of deals with his staff, how many staff precisely he has, like those seem to me to be things that are within executive power. At the same time, if Congress says that anyone who meets these criteria for a Pell Grant, right, are eligible to receive funds to help them go to college, well, the president has no authority to not spend that money, right? That would be a usurpation both of Congress deciding that money should be spent on private individuals and also a violation of individual rights. And there's so much that's been going on in the department. I think you could put some of it in the bucket of saying, yeah that's in the president's wheelhouse of how many employees, but these other things, right, really are sort of spending of money and issues. Same thing with the reorganization. You had these sort of gray areas. Could the president tell all the employees of the Office of Civil Rights to pack up their bag, go over to the Department of Justice, and answer to Attorney General Bondi?
The answer is no, right, that they are statutorily assigned to be in a specific place. But he didn't tell them to pack up and go work for Attorney General Bondi. He let some of them go. He closed some offices. And so I think the question then becomes, is he expressing an intent to do something illegal, or has he already done something that's illegal? And you sort of see Justice Jackson talking about that. And then there's this sort of key factual question, right, which is has the president let go of so many workers that the department cannot discharge its duty? And, I mean, that's in my mind, the answer to that, and I just say my mind from my perspective, the answer is, yeah, he has let go of so many people in the Office for Civil Rights that I cannot imagine a set of circumstances under which they can respond to the civil rights complaints in the timely matters that Congress has set out by statute. At the same time, like could he have let go of X number of employees and that not been a problem?
Surely he could have, right? And so there is this sort of difficulty, this sort of the Goldilocks problem is like how much is too much? And my estimation is that some of this is too much, but not that every single action was per se unconstitutional.
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