The Supreme Court orders fish soup

Congress’ power to control the administrative state in any substantial way seems to be hanging by a thread.

By Kim Lane Scheppele

Monday, the Supreme Court gave the green light for the Department of Education to be dismantled.

The case had come to the court on the emergency docket, which is where procedural motions are decided in advance of a case being heard for its substantive point. Here, the question was whether an injunction issued by the federal district court in Massachusetts blocking President Donald Trump’s plan to dissolve the Department of Education should stand. In a one-paragraph order that gave no reasons at all, the court stayed the injunction – meaning that the plan to dissolve the agency can move forward even before the question of the lawfulness of that plan has been decided.

In issuing injunctions, courts are supposed to assess which party to a lawsuit is most likely to win the case and allow that party to prevail in the interim before the case is decided on the merits. There are other factors a court should consider in issuing an injunction as well – but the idea that the party most likely to win should prevail in the interim allows that party to ensure that whatever it is she had hoped to win is still there when the time comes.

In this case, the lower court had assessed, based on clear existing law, that the president would not be lawfully permitted to dissolve an agency that had been created by Congress without going back to Congress. As a result, the district court kept the Department of Education in place by issuing an injunction freezing the status quo pending the final decision. Given the legal standards for imposing and ending injunctions, the Supreme Court would only have stayed the injunction if it believed that the department could probably be dissolved on the president’s say-so. With today’s brief order, the court signaled that it had already decided to remove the last barrier to the president’s absolute control over the organization of the executive branch.

Today’s decision provides a preview that the court will probably rubber-stamp the president’s power to organize the executive branch as he sees fit, thus gutting Congress’ constitutional power to create and dissolve agencies. Until now, Congress’ absolute power in this regard was a constitutional commonplace so obvious that challenging it would have seemed folly. But now, by allowing the plan to move forward, the court tipped its hand that it is ready to go all in on the view that the president has absolute control over the executive branch. Congress’ power to control the administrative state in any substantial way seems to be hanging by a thread.

And the court, in this 15^th out of 15 emergency orders issued so far on Trump’s slash-and-burn agenda, has allowed Trump to win all 15 times. The court will not allow Congress to rein in the president’s assertions of absolute power, and it won’t stand in the way if the president decides to consolidate all of the powers of all administrative agencies in his own hands.

Of course, we are only at the preliminary stages of this case. So far, nothing has been officially said on the merits of the substantive question of whether the president can dissolve executive branch agencies with a Sharpie. But it matters what happens until that question is settled. Allowing the president to move forward with his constitutional revolution pending formal assessments of whether all of this is legal permits destruction of existing institutions before the court decides whether the president must not damage them.

A metaphor might help to see what is at stake.

Think of the executive branch before January 2025 as an aquarium in which various agency fishes were swimming around acting like a government. Trump inserted a blender into the fish tank because he asserted that he has the constitutional power to create fish soup. It matters if the court allows the blender to be turned on while it decides the legal question of whether the Constitution permits the president to make fish soup. Though it’s easy to turn an aquarium into fish soup, the reverse operation is impossible. So, the allowing Trump to turn the blender on while waiting for an answer about the soup decides the case.

In every case in which the lawfulness of Trump’s executive orders has reached the Supreme Court on a procedural motion about whether the blender is on or off while the courts decide, so far, the Supreme Court has allowed the blender to be turned on or at least readied for immediate use. In each case, the lower courts had ordered Trump to put down the blender, but the Supreme Court is ordering soup.

Given the extraordinary changes we already face from the executive orders, even before they have been legally certified, the court is creating a situation in which a return to a pre-January 2025 world is impossible. We are witnessing a constitutional revolution carried out in plain sight, with the Supreme Court ordering soup.

Kim Lane Scheppele is the Laurance S. Rockefeller Professor of Sociology and International Affairs in the Princeton School of Public and International Affairs and the University Center for Human Values at Princeton University.

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