Trump throws executive orders at constitutional wall, consequences be damned | NOONAN

Paula Noonan
The Trump administration is giving us an advanced placement class in United States civics on the fly. We’re learning about the true power and authority of the executive, the limited power and authority of the judiciary except for the Supreme Court, the ignominy of Congress’s failure to stop President Donald Trump’s usurpations, and the powerlessness of mightily concerned citizens to do anything about these monumental constitutional re-interpretations — in the short term anyway.
Trump and his team have developed a consistent plan of attack: throw executive orders against constitutional walls protecting rights and precedents to see what sticks. So far so good for Trump. His latest victory from the Supreme Court prohibits lower courts from serving national injunctions, forcing many more lawsuits to achieve national answers to national questions. This decision creates an inchoate muddle that will take decades to unwind.
Will babies born in the United States be American citizens? Will public and private education institutions survive assaults on their independence? Can law firms be bullied into taking on pro bono litigation advocating for government actions they don’t support? Can civil rights, including voting rights, be tossed out across the nation by fiat? Can money allocated by Congress sit in an account without dispersal to its targeted recipients until it’s too late? So far, the responses to these questions go like this: who knows, no, yes, yes, and yes.
One piece of our civics education relates to the executive branch’s back-pockets. The president can perform pocket vetoes. They occur when Congress passes a bill, the bill goes to the president for signature, Congress adjourns sine die, and the president sits on the bill in his back pocket past the 10 days allotted for a veto. This non-action causes the bill to fail.
Another back-pocket non-action can occur when Congress appropriates funds the executive doesn’t want to spend. In general, when Congress appropriates money for something, the executive branch must distribute the money unless the executive undertakes a formal rescission. A rescission require a vote of Congress. These policies became law right after the Richard Nixon era because that president liked to sit on money he didn’t want to spend.
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The hitch occurs when money has a year-end allocation deadline on it, and the executive delays disbursement until the funds expire, usually when the fiscal year ends (June 30 for the feds) and a new fiscal year begins (July 1 for the feds).
It’s well known President Trump, his Secretary of Education Linda McMahon of world wrestling fame, and Russell Vought, a self-proclaimed Christian nationalist according to Religion News Service and current director of the U.S. Office of Management and Budget (OMB), do not like the public part of public education and the non-English speaking part of immigrants in the U.S. The trio, or someone within the trio, has decided to use a pocket rescission as a tool to stiff school districts across the nation expecting funds to support their English Language Learning programs and teacher professional development.
This stiffing adds to the long list of other funding stiffs conducted by the Trump administration affecting scientific research, health care, food and nutrition support, climate change preparations, etc. In comparison to these financial impoundments, refusing to fund professional development of teachers (Title II of ESSA, the Every Student Succeeds Act) and English learning for non-English speaking students (Title III of ESSA) may seem unimportant. But these programs are both important and necessary.
According to State Education Commissioner Susana Cordova, the U.S. Department of Education will not distribute $24.6 million-plus to Colorado for various programs for teacher professional development. In contrast, the U.S. Department of Education will allow the state to put $166 million of ESSA Title I funds to schools of choice, that is charter schools, for advanced classes, tutoring, personalized learning and other parent choice options.
This policy-weighting against public school teachers probably satisfies the Christian nationalist bent of Office of Management and Budget director Russell Vought and the so-called anti “woke” political orientation of Trump and McMahon. But the decision disparages teachers and undercuts the administration’s supposed commitment to quality education for the nation’s children.
The U.S. Department of Education will also withhold more than $10 million in support of English learning. This decision parallels others that reduce federal commitments to non-English speakers and immigrant children. However, these non-English speaking students are guaranteed equal access to a quality public education according to the Texas case Plyler v. Doe based on the Equal Protection Clause of the 14th Amendment to the Constitution. Every court that heard the Plyler case, from district court to Fifth Circuit to the Supreme Court, issued the same ruling. That history contrasts with our recent experience of lower court decisions on constitutional questions overturned by today’s Supreme Court.
In March, Trump issued Executive Order 14224 making English the official federal language. He told a Moms for Liberty crowd, “Our country is being poisoned… they’re (immigrant children) going into the classrooms and they don’t even speak English. It’s crazy.” Doesn’t defunding English learning contradict this veneration of our national language?
One would think Trump would hugely welcome every child in our public schools mastering his beautiful version of Queens’ English.
Paula Noonan owns Colorado Capitol Watch, the state’s premier legislature tracking platform.