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Notes -
The DoE was made in the fires of Congress. Only there can it be unmade.
But seriously though, it’s one thing for the President to fire anyone who serves at his pleasure, to leave the office of a cabinet secretary vacant indefinitely, or even to axe entire orgs that were created under executive authority. However, constitutionally, how can a federal department—or any other entity created by Congress—be legally dismantled, except by legislation to that effect? Seems like a blatant violation of Article 2, Section 2
I am aware that Musk is likely exaggerating for effect—in fact, he might not even be exaggerating, but describing the truth on the ground rather than as a legal fiction: if the DoE exists on paper but has no personnel, no money, no responsibilities, and no authority, then (when restricted to 280 characters) it’s quite fair to say it “doesn’t exist”. But my question is precisely about the legal fiction of the matter, the collective delusion if you will: to truly end the DoE in the eyes of the law, doesn’t Congress need to do something?
I mean, I often wondered these things when the Biden admin turned border patrol into a concierge service for illegals. But nothing happened. I think I remember a bunch of states suing, especially all the fights between Texas and and the Biden Admin, but broadly every court deferred to Federal discretion on the matter. There were no emergency stays, no ex-parte hearings, no random judge in Alabama declaring the entire program illegal giving Border Patrol the pretense they needed to go rogue and ignore the lawful orders of the duly elected President of the Unites States. They tried to impeach Mayorkas for dereliction of duty, but that went nowhere.
So at this point, I'm pretty much OK with Trump doing whatever the fuck he wants, and telling the courts "You've made your ruling, now enforce it."
Reminds me of the Russian MoD uniform regulation that was ruled unconstitutional. Some officer was caught wearing his tracksuit when using the jungle gym at a military base. He insisted he was off duty, so uniform regulations didn't apply to him, but was still reprimanded by the base commander because the regulation said uniforms were mandatory on military bases. He sued, reached the Constitutional Court, it struck down the whole document as violating the officer's right to something. The MoD didn't even bother to release a new regulation without the offending clause, just went on as if nothing had happened.
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