03.20.2025

Host: [00:00:00] Welcome to discourse where we cut through the noise and make sense of the chaos. I'm your host Wayne Unger. I'm a law professor and former Silicon Valley nerd. And I've spent years breaking down complex topics into digestible takeaways. And on this podcast, we'll take a deep dive into the pressing issues, shaping our world in law, politics, technology, business, and more.

No echo chambers, no corporate influence, just thoughtful analysis and respectful civic dialogue because understanding different perspectives isn't just important. It's necessary. Let's get started.

All right, welcome back to discourse today. We are recording this on Thursday, March 20th at 11 oh five a. m. And things may have changed since. On today's docket. We have two major stories. The first one is the breaking news that the Donald Trump administration seeks to close the Department of Education.

Well, while that's not necessarily the breaking news, The breaking news is that President Trump will sign an executive order. [00:01:00] So the White House has announced President Trump's intention to sign an executive order that will close the Department of Education. Now we'll talk through how, well, essentially that would be unconstitutional.

Because Congress created the Department of Education and thus Congress has the authority to close it, not the President of the United States, at least, again, under current law. Then that will turn us to this conversation around federal judges and nationwide injunctions. So let's get started with what the Pew Research Center has said about the Department of Education.

Just some facts and figures here to lay the foundation before we get into The legality of President Trump's impending executive order to close it. Now, the Department of Education was created officially in 1979, even though it had existed in other forms prior to 1979. And since 1979, when it was created under the [00:02:00] Jimmy Carter administration, the Department of Education has faced calls for its elimination from conservatives who have generally argued that it gives federal government way too much sway over what should be a state and local matter, public education, that is.

As the main conduit for federal aid to public K through 12 schools, and of course the major lender to college students in the form of student loans, the education department's work directly and indirectly affects millions of American families.

So I turned to the Pew Research Center to answer some of the frequently asked questions regarding the Department of Education. And first, what does the education department do? Well, according to the Pew Research Center, Most of the department's work involves distributing grants and loans to institutions and individuals.

It begins by providing grants to help local public K through 12 schools to educate disadvantaged students and students with disabilities. It assists low and middle income college students and it funds federal work study [00:03:00] programs, rehab services, school improvement efforts, educational research, and much more. The department is, as many know, the largest source of loans for college students, and it also enforces civil rights and equal access laws involving education.

Now, what kind of money does the education department give out? Well, in fiscal 2024, The department's grant spending totaled 150 billion according to its annual financial report.

At the elementary and secondary education levels, the department provides grants to schools, districts, agencies, and other institutions rather than to individuals themselves. In fiscal 2024, its major grant programs included 18. 8 billion for schools with large numbers of poor, neglected, delinquent, and other educationally disadvantaged students.

About 15. 5 billion for special education programs for students with disabilities. [00:04:00] Five and a half billion dollars for wide variety of school improvement programs, such as making teachers more effective, funding high quality afterschool programs, and making better use of classroom technology.

Approximately four billion dollars for adult rehab services, and approximately two billion dollars for career, technical, and adult education programs. 

Now, when it comes to higher education, nearly 33 billion of grant money and fiscal 2024 came in the form of Pell Grants, which is a need-based aid program intended mainly for those first time college students.

 Nationally, the federal government provides approximately 13. 6 percent of the total funding for public elementary and secondary schools as of fiscal 2022, according to Census Bureau data.

So if we want to see which states actually benefit the most from the federal funding out of the Department of Education, the top [00:05:00] 10 states, 8 are solidly red states, and 2 lean red but have been known to swing in recent elections.

So of the states that rely on federal funding for more than 20 percent of their expenditures on public education, those states include Mississippi, South Dakota, Montana, Alaska, Arkansas and North Carolina. Shortly behind those states, Kentucky, Arizona, Oklahoma, and Tennessee. Of the states that I just mentioned, approximately one fifth to one quarter of their expenditures on public education, the amount of money that the state spends on public education, Approximately 1 4th to 1 5th of their funding comes from the federal government, not from their state and local taxes.

So federal funding for local schools varies considerably from place to place. But Mississippi's schools, for example, collectively [00:06:00] get 23. 3 percent of their funding from federal sources, while for comparison, 7. 2 percent of school funding in New York state comes from federal funds.

This shows that actually if The grant programs from the Department of Education go away if they're eliminated in some way, and when I say eliminated, I mean eliminated altogether, because certainly there is the hypothetical that could happen where the Department of Education ends up transferring the Those grant programs to other departments in the federal government in which they will still continue.

But let's say that those federal grant programs that are currently administered by the Department of Education, let's say they go away. The states that actually would be impacted the hardest are again, traditionally and solidly red states, with the exception of perhaps North Carolina and Arizona.

Most of the Department of Education's outlays or funding that they [00:07:00] send out are in the form of student loans to college and university students. 

So keep in mind that here, if those programs go away, which I don't think they would because they are codified in statutes. Well, that would impact the higher education system as a whole. So, what do I expect to happen here after the Trump administration signs this executive order? Almost certainly, it will face a number of lawsuits.

And those lawsuits will claim that what Trump is trying to do in the executive order is unconstitutional because it infringes upon Congress authority to create these federal departments and agencies, or More commonly known as administrative agencies. So Congress created the department of education in its current form in 1979 under the Jimmy Carter administration.

Now that says that only Congress can eliminate the department and they would eliminate it through some [00:08:00] legislative action, some congressional action. They would have to pass a bill to close the department. What will happen here is Lawsuits will be filed to pause or to enjoin the executive order and its implementation.

Those lawsuits will almost certainly lead to preliminary injunctions and temporary restraining orders. Let's talk about preliminary injunctions for a second. A preliminary injunction is when a court orders Everybody to stop to hold the status quo and order for a plaintiff to obtain a preliminary injunction from a court the plaintiff needs to show the court Three things primarily two things though.

The first is an irreparable harm The second is a likelihood to succeed on the merits of the underlying claim. And the third is , in the public's interest, the preliminary injunction should be [00:09:00]implemented. So in this case, at least with the Department of Education, the plaintiffs would have to show, number one, an irreparable harm.

Almost certainly I predict that the lawsuits will be filed as soon as the executive order is signed and almost immediately after those lawsuits are filed, we'll have several hearings in which we will see the plaintiffs move for preliminary injunctions and should they meet their burden again under that legal standard that I just described, then a federal district court judge will most likely meet. a preliminary injunction.

So I expect the executive order to be preliminarily enjoined and that gets us to our next big conversation about preliminary injunctions and what we are seeing.   

 right now we are seeing A slew of preliminary injunctions being issued against the executive branch.

Now, [00:10:00] conservatives are arguing that number one, these are unconstitutional. And number two, the federal district court judges, are exceeding their authority by issuing these nationwide injunctions. But perhaps it's valuable to talk about nationwide injunctions, generally speaking, over the last several years, there's been this broader debate about nationwide injunctions and specifically preliminary injunctions and whether federal district court judges should have the authority, the legal authority to issue these preliminary injunctions . So the thing about preliminary injunctions is both parties have sought nationwide preliminary injunctions to advance their own agendas or to block the agenda of the opposing party.

So I find it a little rich that the conservatives are now complaining about nationwide preliminary injunctions because they have deployed the same strategy that the Democrats are currently deploying, and that strategy is [00:11:00] let's file in certain courts. That would be sympathetic to our claims so that we can get that nationwide injunction.

The big case over the last five years that illustrates this, I think the best is the Alliance for Hippocratic Medicine versus the FDA. Now, just a little bit of history here. On November 18th of 2022, months after the United States Supreme Court overturned Roe v. Wade in Dobbs, a group of anti abortion doctors and organizations called the Alliance for Hippocratic Medicine brought the lawsuit in the United States District Court for the Northern District of Texas.

The Alliance A. K. A. the plaintiffs in this case sought a preliminary and permanent injunction ordering the U. S. F. D. A. to withdraw its two decade old approval of misdipristone, which is one of the drugs used as part of the medication abortion regime, and it's the most common form of abortion in the [00:12:00] United States.

The plaintiffs, the Alliance, alleged that the FDA's approval process for Mr. Pristone violated what's called the Administrative Procedures Act, which I'm not going to get into for the purposes of this episode. But on April 7th, 2023, Judge Kusmark of that court issued a nationwide injunction that suspended the FDA's drug approval of Mr.

Pristone. Hours later, Judge Rice of the United States District Court for the Eastern District of Washington granted a dueling injunction that enjoined the FDA from changing its guidance and approvals in 17 States and the District of Columbia. So not quite a full nationwide injunction. But nonetheless, still one that reached coast to coast from Washington to Washington, D.

C. Professor Nicholas Bagley asked, Judge Kismaric is the single judge in a small courthouse in Amarillo, Texas. Does he really have the [00:13:00] power to dictate national policy about If so, should he have that power?

Constitutional Law Scholar and Dean of UC Berkeley Law, Dean Erwin Chemerinsky, explained how the case reveals the underlying problems in the judicial system. And he argued that litigants should not be able to handpick a judge who can then issue a nationwide injunction throwing out or throwing the entire country into chaos.

Here, conservative organizations purposefully filed this lawsuit in the Northern District of Texas, and specifically in Amarillo, Texas, where they were all but guaranteed To get Judge Kismarck on the case, and they knew Judge Kismarck would be sympathetic to the anti abortion sentiment, and of course, he ruled in their favor.

Didn't surprise anyone. The problem here [00:14:00] is, That sparked a whole conversation about nationwide injunctions, which have been ongoing since. Now, in this case, because the injunction was against an abortion causing drug, or abortion inducing drug, we saw liberals and Democrats condemning the nationwide injunction.

We see that flipped today, where you have nationwide injunctions being issued against a Republican administration, Donald Trump, and we see liberals parading that around, and we see conservatives condemning that. So here's the hypocrisy, which is, depends on which side you are on. With respect to these nationwide injunctions, so both parties have sought nationwide injunctions, both parties have obtained nationwide injunctions, and both parties have condemned nationwide injunctions, depending on if they're on the winning or the losing side of those injunctions.  

 The criticism of nationwide injunctions, [00:15:00] some scholars, jurists, attorneys, and policy makers criticize the practice of district courts issuing nationwide injunctions as an inappropriate abuse of power. Others defend nationwide injunctions as a powerful way to check federal agency overreach and ensure robust relief for plaintiffs.

All of this that I just described I must give credit to the Harvard Law Review for articulating this in such a way that I was able to communicate it to you all in a concise, articulable manner. So now I want to just play a quick clip from the Charlie Kirk show where Senator Josh Hawley of Missouri is criticizing nationwide injunctions.

Joining us now is Missouri's own Josh Hawley, Senator Hawley. Senator, welcome to the program. Thank you. Thanks for having me. Absolutely. So, Senator, you have a great background in the legal world, [00:16:00] Attorney General of Missouri. What is your comment on this now pattern of wide ranging, nationwide injunctions, 64 of them, that have been issued against the Trump administration?

Senator, your thoughts. Yeah, I think it's an abuse of the, of the Article 3 power to be honest with you, Charlie. I just don't think that these district courts, and that's what we're talking about here. Let's just be clear. So everybody listening understands these are district courts, which are basically local federal courts who are trying to say, okay, I'm not just going to issue an order that says what the executive branch can or cannot do inside my district.

I'm going to issue an order that binds the executive branch for the entire. Nation Nation and my view is absent some really extraordinary circumstances, that's just not a power I think district courts have and we are seeing it on, as you said, on a mass scale. A mass scale. 

Okay, so Senator Hawley is correct in his description about district court judges.

He says that district courts [00:17:00] are local federal courts, which is true. District courts are located across the country in all the states. And they handle all sorts of cases. So, for example, they can handle cases in which the dispute is between citizens of different states.

They can handle cases in which there is a federal question at issue. In other words, a federal law, like the federal constitution. So those are the type of cases in a nutshell that federal district courts handle. they're the first court in the federal court system, meaning that the cases are initially filed in those district courts, and then those are the trial courts.

So the initial court of decision, and then they can get appealed to what's called the Federal Circuit Courts of Appeal, which we commonly refer to them by their number and then the word circuit. So the 9th Circuit, the 5th Circuit, the 2nd Circuit Court of Appeals, etc. And then of course, above them, Um, [00:18:00] those federal circuit courts of appeal.

We have the United States Supreme Court, which I think we all are quite familiar with today. Here we have Senator Josh Hawley criticizing federal district court judges from having this authority to issue nationwide injunctions, but it's rich in my opinion that he's criticizing it now, but he was not criticizing it.

After the FDA's case in Alliance for Hippocratic Medicine versus the FDA. I did not hear any criticism from conservatives after the Alliance for Hippocratic Medicine. That preliminary injunction was handed down by Judge Kusmark. I find it Interesting and intriguing and also hypocritical that again, the party that complains about nationwide injunctions is the party that is on the losing end of those nationwide injunctions.

And that just flips. That just flips depending on who's winning and [00:19:00] who's losing in those nationwide injunctions. So the conversation about nationwide injunctions is Essentially on both sides in that both sides have criticized the deployment of or the issuance of nationwide injunctions. And so perhaps we will get some level of reform over the next several years about nationwide injunctions.

But because the nationwide injunctions today are being issued against the Trump administration, we see a concerted attack from conservatives like Senator Hawley, like Charlie Kirk, and others that attack these nationwide injunctions and somehow now arguing or trying to get this public narrative out there that this is somehow a political activism or political agenda to stop the Trump administration.

And that's just not true. Because, again, preliminary injunctions have been issued against all administrations. The [00:20:00] thing here is, yes, if you look at the numbers, there weren't as many preliminary injunctions issued against the Obama administration and the Biden administration than have been issued against Trump 1 and Trump 2.

As I mentioned in a previous episode, perhaps the reason why past administrations, both Republican and Democrat administrations from Obama to Biden, from George W. Bush to Ronald Reagan, perhaps the reason why those administrations have not faced the same number of preliminary injunctions as Trump has is because they did not egregiously abuse the rule of law.

In law, we have prescribed processes, protocols, and procedures. And when we do not follow those, well, yes, that could result in a preliminary injunction because, again, the law says you have to follow these processes, these procedures, these protocols. And the Trump administration, at [00:21:00] least to me, seems to have snubbed its nose at those prescribed processes, protocols, and procedures.

The Trump administration has rather attempted to, with the stroke of a single pen via executive order as an example, do a lot of things related to its agenda without following the proper processes, protocols, policies, procedures. So, yes, when you don't follow the law in trying to advance or implement your agenda, you are going to be enjoined by the courts.

And you're going to face more injunctions than those administrations that did make every attempt, or every reasonable attempt, to follow the proper policies, procedures, etc. That's why I think we have more injunctions being issued against the Trump administration than past administrations on both sides.

 Now Charlie Kirk has also posted on social media other [00:22:00] attacks on the federal judiciary. For example, on March 19th, he tweeted out, So, if it takes a majority of the Supreme Court to rule on a case, why can a single district court judge overrule the president and the will of 80 million voters?

Do Democrats really think a single federal court judge should wield more power than a Supreme Court justice or the president? Well, See, see, Charlie Kirk, if you actually went to law school, you would understand this part, which is, one, you're complaining about it only when you're on the losing end. You did not complain about it in the Alliance for Hippocratic Medicine versus the FDA when Judge Kosmarik issued his nationwide injunction of the FDA approval of Mr.

Pristone, so one, notice your own hypocrisy, but two, Charlie Kirk, the point of the federal judiciary is very, very important. is to keep other branches of government in check. That's one of its [00:23:00]constitutional duties. And furthermore, the fact that federal district courts even exist is because Congress created them.

So the only court that is created by the constitution is the United States Supreme Court. Article three of the United States constitution says that Congress can create all inferior courts to the United States Supreme Court. So district courts around the country exist because Congress created them by law, by congressional action.

That said, yes, the fact that they have some legal authority to issue nationwide injunctions is because Congress hasn't restrained that power. If Congress were to pass a law that says no district court judge can issue a nationwide injunction, well then that would constrain the power [00:24:00] of these federal courts, but Congress hasn't done so.

So, perhaps your blame is misplaced, and it should be on Congress as a whole if you do not wish these federal district court judges to have the authority to issue a nationwide injunction.

So to Charlie Kirk, who complains about these federal district court judges having the authority to issue nationwide injunctions. If you want to see reform, if you want to see federal district court judges not having the power to issue nationwide injunctions, then your comments should really be aimed at Congress saying that Congress, you need to restrain the authority of federal district court judges from issuing nationwide injunctions, but that's not what you're doing here.

You're taking aim at Democrats specifically. But the thing is both parties have criticized nationwide injunctions. So your criticism of quote, [00:25:00] do Democrats really think a single federal court judge should wield more power than a Supreme Court justice or the president?

Well, Charlie Kirk, if your tweet was actually intellectually honest, you would know, and you would state, that nationwide injunctions have been deployed by both parties, and that if we really wanted to constrain federal district court judges from issuing nationwide injunctions, That Congress needs to act.

But that's not what you said here.

Yeah.

So to end today's show, I just have to play this one clip that I found on Twitter, and this clip, I have to give credit where credit's due, was created by TKyleMac.

Or at T Kyle Mac on Twitter. So I thank you for creating this because it has made my day. And I think with all of the seriousness and frustration that we may [00:26:00] have in the world, in politics, in the news, sometimes it's nice to hear something that gives us a little levity. 

There are such funny words in like, I love

so I, so I absolutely love this clip and it's, I, I, and I think sometimes when we have such frustrations about our national politic, we need some levity in life. [00:27:00] If you don't know this clip, if you don't understand the reference. So this is Parker Posey. She plays, a wealthy mother of.

A North Carolinian family. They are vacationing in Thailand. And the show is The White Lotus on HBO. It is quite the show. Mike White, the creator and writer is very gifted and I recommend the show because it is, it is, it is quite well done. Uh, so Parker Posey has this Southern accent and it is just absolutely hilarious to see, and to hear her pronounce these words.

And that is what she's imitating here is that Southern accent that she uses while acting on the show. And that ends today's episode. So I thank you all for joining us here on discourse.

That's it for today's episode of [00:28:00] Discourse. Thank you for tuning in and being part of the conversation. You can catch future episodes of Discourse wherever you get your podcasts. If you found this discussion insightful, be sure to subscribe, leave a review, and share it with others who value thoughtful analysis over the noise.

You can also join the conversation by visiting DiscoursePod. org and following me on X and Blue Sky at Prof Unger for more insights and updates. Until next time. Keep thinking critically, stay curious and engage with respect. We'll see you soon.

Discourse is a commentary podcast for informational and educational purposes only, and does not constitute professional advice or legal advice. The opinions expressed are solely those of the host and any guests and do not reflect the views of any employer institution or organization. This podcast is not journalism and does not adhere to journalistic principles.

It offers analysis, opinion, and discussion on current events, but should not be relied upon as a new source. Listeners should consult qualified professionals for legal or otherwise expert advice specific to their situation. Thanks for [00:29:00] listening.

 Like I love