Will Congressional Republicans Get Up on Their Hind Legs to Defend Themselves from Don Trump?
A man can dream...
Given the choice, most American presidents wouldn’t want to invite comparisons to Richard Nixon, but not only is Don Trump embracing Nixon’s leadership style, the forty-seventh president is also channeling the thirty-seventh president at his worst.
To be fair, Trump has yet to reach a level of scandal comparable to Watergate (although he did during his first term). He fortunately does not have a military debacle he can needlessly prolong for his own political gain, although, like Nixon, he does appear poised to pressure the Fed to artificially goose the economy, long term effects be damned. It goes without saying both Trump and Nixon have rotten temperaments that are ill-suited to the presidency.
But no, what I have in mind this week is something called impoundment, a practice by which the president refuses to spend money appropriated by Congress. As I’m certain you know from your high school government class, the legislative branch (Congress) makes the law while the executive branch (the President) carries out the law. One of Congress’s most important powers—and the first enumerated in Article I, Section 8 of the Constitution—is the “power of the purse,” or the power to tax and spend. This is a major power: A lot of what the government does or might do requires money, and because Congress controls the money, Congress—and not the president nor the courts—gets to decide what the government is going to do.
Once Congress has appropriated that money, it’s up to the president and the administrative agencies to spend that money. There’s often a lot of leeway built into the law regarding precisely how those funds are to be spent, and presidents can assert their own power by finding ways to creatively spend congressional appropriations within the letter of the law. But, absent an emergency, presidents cannot a.) Authorize the government to spend money on undertakings that have not first been authorized by Congress, nor b.) Refuse to spend money appropriated by Congress.
It’s pretty clear why a.) would be a problem: Democracies would rather place major political power in the hands of a deliberative body composed of the representatives of the people than in the hands of one person. It’s less clear why b.) (impoundment) is problematic, but the same principle applies: Power in a democracy ought to reside in the hands of a deliberative body composed of the representatives of the people, and when that body acts, its will—and not the will of another—ought to take effect. Congress would lack the power of the purse if its will could be ignored via an act of impoundment.
That hasn’t stopped presidents from refusing to spend money appropriated by Congress. In fact, most presidents have considered impoundment a legitimate, albeit limited, presidential power, one used if they concluded Congress had appropriated more money than necessary for a specific expenditure. The amount of money impounded was typically small and did not thwart the will of the legislature, although it should be noted Franklin Roosevelt was the president who began to bend those guardrails.
It wasn’t until Richard Nixon became president, however, that impoundment became a major constitutional issue. Nixon—a Republican president whose time in office coincided with solid Democratic congressional majorities and compliant Republican minorities that often went along to get along (it was a different time)—impounded tens of billions of dollars in funding for things like environmental protection programs, highways, public housing, drug rehabilitation programs, and disaster relief. Most famously, Nixon impounded most of the $24 billion Congress included in the 1972 Clean Water Act, a bill Congress enacted over Nixon’s veto. In some cases, Nixon’s impoundment actions—done in the name of fiscal discipline—targeted entire programs rather than specific projects. According to historian Melvin Small, Nixon impounded 17-20% of all congressional expenditures in his first term, and impounded funds for over 100 programs in 1973.
Congress eventually decided to put an end to Nixon’s shenanigans by passing the Budget and Impoundment Control Act in 1974. That bill effectively eliminated the president’s impoundment power and required presidents to seek congressional approval if they sought to impound funds. Nixon, who was knee deep in Watergate by then and therefore sensitive to his standing with the legislative body that might soon decide whether to impeach and remove him from office, reluctantly signed the bill. (In 1975, a unanimous Supreme Court looked skeptically upon the impoundment power in Train v. New York.)
It’s worth noting the Budget and Impoundment Control Act passed Congress in 1974 by margins of 75-0 in the Senate and 401-6 in the House, so it wasn’t as though it was pushed through on a party line vote. It turned out a lot of the funds Nixon impounded affected programs in Republican districts, upsetting their Republican representatives. Additionally, by using impoundment to chop up legislation, Nixon was shattering the deals bipartisan congressional coalitions had made to fuse the legislation together in the first place, which left members of both parties furious over having supported a bill now gutted of the provisions that mattered most to them.
Finally, there was the principle of it all: Congress as an institution wanted to assert it was Congress—not the president—that finally decided what was included in a bill. It was certainly expected the president would participate in legislative negotiations, since Congress needed his signature to turn their bills into laws, but in doing so, the president would become a party to and respect the results of those negotiations. More fundamentally, though, Congress—knowing its power (and the power of its members) is meaningless if the president could steal the power of the purse—felt it needed to push back and stand up for itself.
That’s how the Constitution’s separation of powers is supposed to work. Many assume our system of separated powers is a way to keep parties in check: If one party controls one branch, then the other party can keep a check on that branch when it controls a different branch, and vice versa. That wasn’t top of mind for the Founding Fathers, however. The authors of the Constitution actually hoped our system of separated powers would keep the branches in check. James Madison explains this in Federalist 51:
[T]he great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition.
The idea here wasn’t to create a limited government by weakening government, but by first separating the powers of government into different branches and then making those branches strong enough to push back against other branches when those branches overstepped. That’s what Congress did in the 1970s when Nixon tried to snatch away the power of the purse.
Flash forward to last week. On Monday afternoon, Trump’s Office of Management and Budget issued a memo ordering a pause in grants, loans, and other federal assistance, freezing up billions or perhaps even trillions in federal funding for state, local, and tribal projects, disaster relief, small business loans, medical research, non-profit groups, food assistance, education grants, transportation projects, etc. (Trump had already frozen foreign aid.) The stated purpose of the pause was to give administrators time to review their agencies’ disbursement of federal funds to ensure they aligned with Trump’s recently issued executive orders. It was unclear what would have happened to the programs that ran afoul of Trump’s executive orders once the pause was lifted on February 10, but given the cost-cutting tone of the memo, it’s reasonable to believe Trump would have put those programs on the chopping block.
The memo sent shockwaves throughout the nation, as organizations that relied on government funding suddenly found themselves facing a very uncertain future. In true Trumpian fashion, however, the memo was written so poorly that no one knew exactly what it meant or what programs it targeted. (For example, agency officials were supposed to review grants to see if they were somehow connected to “green new deal social engineering policies,” but the Green New Deal is just a policy proposal that lacks legal significance.) Most legal experts concluded the memo at a minimum required a widespread funding freeze. Fortunately, a judge put the order on hold. Due perhaps to mounting confusion surrounding the memo or realizing what exactly the memo entailed or out of a desire to wipe the egg from their face, the Trump administration rescinded the order on Wednesday. Based on what happened during Trump’s first term, my guess is someone in the administration will find a lawyer who knows how to write official government directives and we’ll repeat what just happened a few months from now but for real this time.
Make no mistake, what Trump tried to do was impound government funds. While I presume a president could issue an order directing the recipients of federal money to adhere to a directive detailed in an executive order, the president most definitely does not have the authority to institute a widespread freeze on congressional appropriations. Let’s also not pretend Trump just somehow stumbled onto this approach to presidential leadership. First of all, this is what got him impeached back in 2019 when he withheld congressionally appropriated aid to Ukraine. He should know better. Secondly, Trump has a thing for impoundment. In June 2023, he said, “I will do everything I can to challenge the Impoundment Control Act in court, and if necessary, get Congress to overturn it. I will then use the president’s long-recognized impoundment power to squeeze the bloated federal bureaucracy for massive savings.” (There’s even a slideshow circulating within Trump’s budget office about impoundment.) I read Trump’s claim that he’s simply trying to purge the government of DEI programs as pretense; after all, without citing any evidence, he blamed this week’s aviation accident at Reagan Washington National airport on DEI. Trump plans on using DEI as his universal villain, making its eradication his universal justification.
Since becoming president again, Trump has taken actions that have expanded the power of the president at the expense of Congress in ways that extend beyond impoundment. Trump is not enforcing a law passed by Congress that would shut down TikTok. He also fired numerous inspectors general at federal agencies without providing Congress with the required thirty days’ notice of his intentions. (Sen Lindsey “Goose” Graham dismissed concerns about the legality of Trump’s actions by stating, “Just tell [the administration] they need to follow the law next time.”) Most Americans won’t get riled up over these controversies. Many are probably glad Trump preserved their access to TikTok, while Trump’s impoundment scheme and his firing of the inspectors general sound like procedural kerfuffles that only matter to Washington insiders. They matter in the constitutional scheme of things, however, as they not only represent an effort to concentrate political power in the hands of one branch but in the hands of one person. Once that power gets entrenched—that is, after it becomes accepted that presidents can ignore legal mandates or edit laws to their liking—it’s hard to claw it back. (Sorry Lindsey, but there might not be a next time.)
There’s a potent way to combat this power grab: Congressional Republicans can get up on their hind legs and fight back. Assert government funding for all grants, loans, and assistance programs is to stay in place even as the executive branch reviews those programs’ DEI policies. That’s how this whole separation of powers thing is supposed to work. It’s not a matter of Congress agreeing or disagreeing with the substance of what Trump is doing but of defending their own institutional prerogative. If congressional Republicans start ceding their share of the federal government’s power to the executive branch, they’ll have a much harder time wielding it when they feel the need to assert themselves. Their rollovers on TikTok and the inspectors general aside, they’re already off to a terrible start: When Trump asked the Senate to confirm an inexperienced alcoholic cable news anchor credibly accused of sexual misconduct to run the Pentagon, Republican senators refused to exercise their power of “advice and consent” by telling Trump to find someone more qualified. Instead, all those tough-talking Republican senators (like Joni Ernst of Iowa) proved they had the fortitude of a rubber stamp.
There’s some reporting from The Hill suggesting Republican senators contacted the White House directly to complain about the funding freeze, which may have led to its revocation. I’m unconvinced that’s a cause for hope, however, as their complaints seemed more focused on how confusing the order was than on the fact that the president had frozen congressionally-appropriated funds. To date, the Republican majority has not taken any steps to keep Trump from impounding funds in the future.
Don Trump is exhibiting Nixonian levels of contempt for democratic governance. Both Nixon and Trump longed to wield power instrumentally and loathed the give-and-take of domestic politics. Both also harbored a dangerously expansive view of presidential power. As Nixon famously told David Frost in 1977, “When the president does it, that means that it is not illegal”; Trump’s lawyers echoed that sentiment before the Supreme Court last year when the Court basically affirmed that idea, handing Trump an infinite deck of near-absolute get-out-of-jail-free cards.
Congressional Republicans may believe they’re only acting in accordance with the wishes of their constituents by allowing Trump to pursue his agenda. What they’re actually doing is handing over their political power to a dangerous man and dismantling the United States’ system of separated powers. For not only the country’s sake but their own sake, Republicans ought to do what Congress did in the 1970s when Nixon tried to steal the legislative branch’s power: Push back hard. Unfortunately, that may require more courage than those cowards can muster.
Further reading:
“White House Eyes Fight to Expand Trump’s Power to Control Spending” by Tony Romm and Jeff Stein (Washington Post)
“Trump Kicks Congress to the Curb, With Little Protest From Republicans” by Carl Hulse (New York Times)
Signals and Noise
“The Problem With $TRUMP” by Danielle Allen (The Atlantic)
“RFK Jr., Trump and the Triumph of Coronavirus Surreality” by Philip Bump (Washington Post)
“What’s Guiding Trump’s Early Moves” by David A. Graham (The Atlantic)
“Is There Anything Trump Won’t Blame on DEI?” by Jonathan Chait (The Atlantic)