Credit: (AP Photo/Mark Schiefelbein, File)

WASHINGTON — Two months into his second White House term, President Donald Trump has prioritized shrinking the U.S. government. He has ordered the closure of departments, fired federal workers and frozen federal money Congress had already approved.

Yet actually abolishing a federal department, as Trump and political allies have sworn to do with the U.S. Department of Education, is incredibly difficult.

“A president cannot unilaterally close an agency created by Congress,” Michael Thorning, director of the structural democracy program at the Bipartisan Policy Center, a Washington, D.C.-based think tank, said in an interview.

“It’s Congress’ job to outline what if anything the executive branch will do,” Thorning said. “For the most part, Congress gives the executive branch a lot of leeway to accomplish the goals that it has.” Congress does this, in part, by writing and passing laws to shape federal policy and fund agencies and departments — known respectively as “authorization” bills and “appropriation” bills.

For decades before Trump, modern presidents of both the Democratic and Republican parties have tried to cut the size of the U.S. government, depending on their desires and interests, including by freezing pay, moving federal programs from one department to another, or requesting budget cuts during the federal appropriations process.

Due to support for a given agency or program on Capitol Hill, blowback from the public, opposition from advocacy groups or industry, or a combination, closing a department or ending a federal program is exceedingly difficult.

Downsizing government

“All presidents try to shrink the government to some extent,” Kathryn Kovacs, a professor at Rutgers Law School, said in an interview. “It’s just that every program has a constituency, and every program has a hero on Capitol Hill.”

The president can fire federal workers or issue a “reduction in force,” or RIF order. “The president can order agencies to downsize, for sure,” Kovacs said.

Or the president can freeze pay, as former President Barack Obama did in 2010, a pause that lasted two years.

Credit: (AP Photo/Mark Schiefelbein)

But Trump can’t dismantle a federal department via executive order, such as the one he signed last week that called for the closure of the Department of Education.

“An executive order is simply an instruction to a presidential employee to carry out an instruction,” Kovacs said. “They don’t have the force of law, by and large.”

Targeting the Department of Education

In this case, Trump directed Secretary of Education Linda McMahon to shut down the department. McMahon said earlier in written answers to Sen. Andy Kim (D-NJ) that the department should “be abolished so that we can return education to the states, where it belongs.”

The votes in this Congress to dismantle the department likely do not exist, though Rep. Jeff Van Drew (R-2nd) voted in 2023 for an amendment to a House bill to close the department.

‘I wouldn’t take that as the final word that it’s going to happen. I would encourage everyone to do their homework.’ — Michael Thorning, Bipartisan Policy Center

“I can tell you they do not have the votes in the United States Senate to abolish the Department of Education,” Kim said Friday during a meeting of school principals and supervisors. Kim called the administration’s push to close the department “illegal.”

To pass legislation to end the department or another Cabinet-level agency would require 60 votes, including some from Democrats, for whom the idea is a nonstarter.

Gutting from within

While votes to shutter the department may not exist, it’s being gutted from the inside, Robert Kim, executive director of the Education Law Center, based in Newark, said in an interview.

Robert Kim’s group is representing plaintiffs, including the National Association for the Advancement of Colored People, the National Education Association and public school parents, that filed a lawsuit Monday in federal court in Maryland.

“We are alleging that the White House is illegally dismantling the department,” he said. “Only Congress has the power to determine the future of the agency.”

Of the 4,133 people who worked at the U.S. Department of Education in January, more than 2,000 have been laid off, retired, taken buyouts or in some other way left, said Robert Kim, who worked at the department during the Obama administration.

Seven of the department’s 12 regional offices, including the New York office, which covers New Jersey, have been functionally closed, Kim said.

“The remaining five offices then have to absorb the remaining work,” he said.

What the DOE does

Created by Congress in 1979, the department does not set local reading lists or the curriculum in states.

Instead, it distributes federal money to college students through grants and loans. It also sends funding to K-12 schools and enforces anti-discrimination laws on the federal books, like Title IX for gender discrimination, the Americans with Disabilities Act and the Civil Rights Act and the Elementary and Secondary Education Act of the 1960s.

“This is essentially a civil rights agency that exists to protect the most disadvantaged and underserved student populations in the United States,” Robert Kim said.

Department of Education employees also process civil rights complaints — more than 20,000 a year, according to Kim. “It’s a safe assumption that there are hundreds, potentially thousands of complaints, that come from students, families in New Jersey.”

Paying attention

When assessing the headline-grabbing moves Trump has made since returning to Washington, Thorning and Kovacs recommended citizens pay close attention.

Presidents often announce goals that never happen, Thorning said.

“I wouldn’t take that as the final word that it’s going to happen,” he said. “I would encourage everyone to do their homework.”

Power over the future of federal agencies rests with Congress, Kovacs said, adding that lawmakers do respond to voters.

“If they don’t want the Department of Education to be shut down, they should pick up the phone and call their members of Congress,” Kovacs said. If enough people raise an issue with a lawmaker, she said, “I can’t imagine they’re not going to at least reach out and try to find out what’s going on.”

— Hannah Gross contributed reporting.