Calling an unlawful transfer of statutory functions a “partnership” does not make it legal.
The U.S. Department of Education announced on June 16 that it would move the Office of Special Education and Rehabilitative Services to the U.S. Department of Health and Human Services and the Office for Civil Rights to the U.S. Department of Justice. Officials described the moves as creating routine partnerships that would change no one’s rights. That framing is the problem. An interagency partnership is not a lawful substitute for the structure that the U.S. Congress built, and describing the relocation as housekeeping does not make it one.
Start with first principles. An agency may act only within the authority Congress confers on it. Congress did not merely permit the special education and civil rights offices to sit inside the Education Department. It placed them there by statute. The Individuals with Disabilities Education Act requires that the office administering federal special education law exist within the Education Department. The Department of Education Organization Act created the Office for Civil Rights and established the Office of Special Education and Rehabilitative Services, both inside the Department. When a statute locates a function in a particular department, an agency cannot relocate that function on its own initiative.
That is the threshold defect, and it is independent of any harm to any single student. The executive holds no freestanding power to move statutory functions from one cabinet department to another. The presidential reorganization authority that once allowed structural changes by plan lapsed at the end of 1984. Even while it existed, it never authorized transferring an entire department’s functions out of that department. A recent Congressional Research Service analysis confirms that no current statute supplies the authority the Administration would need. Absent that authority, the relocation is action in excess of statutory authority under the Administrative Procedure Act.
The partnership label does not cure this problem. Instead, “partnership” raises a second and distinct problem. Even if the Education Department retained nominal ownership of these programs while routing their day-to-day operation to other agencies, an agency may not hand a statutory responsibility to an outside entity it does not control without congressional authorization. The U.S. Court of Appeals for the D.C. Circuit drew exactly this line in United States Telecom Association v. Federal Communications Commission, holding that an agency cannot subdelegate its statutory functions to outside parties absent an affirmative grant of authority from Congress. The Department of Health and Human Services and the Justice Department are not subordinate components of the Education Department. They are separate departments, outside its chain of command. Routing special education and civil rights enforcement to them is the precise move the bar on subdelegation forecloses.
Then there is the rationale. Agency action is unlawful when it is arbitrary and capricious, and that includes action resting on a pretextual justification. Under the Supreme Court’s decision in Department of Commerce v. New York, a reviewing court need not accept an agency’s stated reason when the record reveals that the explanation does not match the action. Here, the record undermines the stated reason in an unusually direct way. The interagency agreement reportedly concedes that the Education Department must retain management and leadership of these programs because the law requires it. That concession is fatal. An agency cannot describe a change as a routine partnership that alters nothing while acknowledging, in the operative document, that the law forbids it from giving the functions away. The admission converts the housekeeping defense into evidence of the violation.
The same record reveals what the partnership framing is built to hide. The defect is not only that the executive lacks authority. The problem is, instead, that the action is a designed weakening of disability enforcement rather than neutral administrative tidying, and the design shows in the decision itself. The two moves were bundled and announced together, and the disability functions were routed to the two departments least able to carry them out: civil rights enforcement to the Justice Department, which does not run school accommodation and discipline investigations at scale, and special education to the Department of Health and Human Services, which does not administer it. Courts infer discriminatory purpose from precisely this kind of circumstantial record, including the sequence of events leading to a decision and departures from the expected course. Routing a protected group’s enforcement machinery to the agencies that cannot operate it is evidence of purpose, not coincidence, and it is the same pattern that exposes the neutral-partnership rationale as pretextual. The discrimination and the pretext are not competing theories. Each is proof of the other.
None of this depends on predicting downstream effects. The structural illegality is complete at the moment of the move. A court reviewing the relocation does not have to wait for a child to be denied services or for an investigation to stall at an agency built for other work. The question on review is whether the executive had authority to act, and on the face of the statutes and the agreement, it did not.
That is also why the usual practical defense—that rights remain on the books—misses the point. A statutory right is only as durable as the institution Congress assigned to administer and enforce it. Congress built this enforcement structure and located the expertise in one place. Scattering it across departments Congress never tasked with the work is not a neutral reshuffling. It is the dismantling of that structure, accomplished without the legislative action such a change requires.
The parties best positioned to test this are the states, which administer these programs and have standing to challenge unlawful federal action that disrupts them. Such a challenge would not ask a court to weigh the wisdom of the reorganization. It would ask the narrower and more answerable question that the Administrative Procedure Act poses: whether the action exceeds the authority Congress granted and whether its stated rationale survives contact with the agency’s own record. On both, the answer is available now. The partnership label is not a defense to the defect. It is the defect, and the defect is not an accident of administration. It is the design.
