FEATURED
OPINION: The department’s internal court is a vestige of runaway administrative power, siding with the feds in most cases.
As the Trump Administration continues dismantling the Department of Education, it shouldn’t overlook one of its problematic secret weapons: the power to adjudicate education law disputes.
The department’s internal tribunal poses an unmitigated conflict of justice by tipping the scales away from constitutional courts and toward a prejudiced legal system.
In the year following President Trump’s executive order “Improving Education Outcomes,” Secretary of Education Linda McMahon has taken drastic steps to deactivate her department’s functions and renounce its operations.
Much of its responsibilities and oversight of student education now rests with the 50 states. Secretary McMahon has simultaneously outsourced the department’s grantmaking functions and public school programs to departments like Health and Human Services and Housing and Urban Development.
While this marks a welcome shift in power, there is lingering uncertainty over whether the department will fully relinquish its authority. This stems, in part, from its administrative law court, one of 43 federal tribunals governed under the Administrative Procedure Act.
Think of these as the executive branch’s personal court system, scattered across various cabinet departments, subagencies, and independent agencies. These quasi-judicial courts hold evidentiary hearings across a range of policy issues, with a focus on agency enforcement actions toward private parties.
Despite its ongoing deconstruction, the Education Department still runs its own court system via the Office of Hearings and Appeals, which currently has eight administrative law judges. The department relies on them to uphold an array of enforcement actions against educational institutions.
Unlike how federal judges remain detached from the president’s control after their appointment to the bench, the Education Department’s judges remain under the influence of the secretary. Any perception of independence is undermined by how the department approves the judges’ salaries, writes the rules that govern court proceedings, and delegates the types of cases they can hear.
Most of the cases involve the administrative law court upholding civil monetary penalties against colleges and universities. A few others have involved the disbarment of university officials for perceived infractions.
Despite claiming to resolve cases in a “fair, impartial, [and] equitable” manner, administrative law courts rule in favor of the government in 87% of cases, according to a Daily Economy investigation.
And if the court does rule against the department, then the Secretary of Education or a designee can simply overturn the decision on appeal.
In cases involving private parties, there are only rare instances when administrative law courts decide against the department. One example is the 2016 Southwest Baptist University case, which disputed whether the school should return $485,000 in Title IV funds after its contractual partner, Mercy College, withdrew its accreditation.
Chief Judge Ernest Canellos admitted that “based on unique facts and circumstances” the university was not obligated to repay the money to the department. The judge gave Southwest Baptist the benefit of the doubt, seeing as the “requirements unexpectedly changed through no apparent fault of SBU, and with no practical way to rectify the situation.” Cases like these are the exception rather than the rule.
If President Trump’s aim is to permanently close the Education Department, then something needs to be done to end the vestiges of runaway administrative power through these internal courts.
One route is to outsource them to state governments that have their own. Various states rely on these courts to process regulatory matters in-house. The caveat is that state administrative law courts are far less powerful than federal ones. This is primarily because the states’ courts don’t rely on unconstitutionally delegated power that Congress siphoned from the judiciary.
Another possibility is to outsource to peer federal agencies. This is the most likely route, as the federal government already facilitates a hidden exchange of administrative law courts.
The Education Department, according to my research, has already employed two transfer administrative law courts during its 47 year existence, making it no stranger to this process.
The best and most appropriate route would be for these judges to move to the judicial branch. It’s appropriate, given that the power to adjudicate federal issues should only reside with the federal courts.
Congress never possessed the authority to delegate such power to the executive branch in the first place. According to testimony by Mark Chenoweth, president of New Civil Liberties Alliance, “the principle that the Constitution unambiguously vests judicial power in courts resounds over centuries of case law.”
To reinforce this point, federal courts hear myriad appealed administrative law courts cases.
Alternatively, Congress could create a new Article III administrative court to house the Education Department’s judges. Doing so would establish a precedent for other agencies to follow, providing constitutional restoration where only the judicial branch can adjudicate cases.
In either situation, the Education Department should relinquish its court system along with its remaining legal powers. To fully uphold President Trump’s executive order, Secretary McMahon must close down this in-house tribunal. Her department should stop adjudicating higher education cases, especially when the Department of Labor has already taken over most of its college programs.
Ideally, the department will outsource its administrative judges to the Judiciary as it continues to shut down. In the wake of the department’s full dissolution, the higher education community may finally be able to realize the ideal of an impartial judicial system.
Stone Washington is a PhD student at George Washington University. He was a summer 2019 College Fix fellow, where he worked at the Daily Caller. Washington has authored numerous research reports and articles on administrative law courts, including for the Pacific Legal Foundation, the Competitive Enterprise Institute, and the American Institute for Economic Research.
