Is Trump the New Richard Nixon? | Opinion

This article originally appeared on Dorf on Law.

Donald Trump had not even been in office for ten days before he had his first "Nixon moment," firing acting Attorney General Sally Yates for refusing to carry out his unconstitutional executive order to ban Muslims from entering the United States. Sacking Yates brought back uncomfortable echoes of Richard Nixon's infamous Saturday Night Massacre, in which the soon-to-be-ousted president fired the Attorney General and the Deputy Attorney General for refusing to obey Nixon's orders.

Almost fifteen months later, Trump is apparently no closer to being driven from office. Indeed, the few detractors in his party have largely silenced themselves, and Republicans are even trying to whip up support for the midterm elections by telling Trump's base that liberals would impeach Trump (as if that would be a bad thing). The Yates affair is merely a distant memory, not even in the top half of Trump's outrages.

Donald Trump U.S. President Donald Trump speaks during a meeting with the Emir of Qatar Sheikh Tamim bin Hamad Al Thani, in the Oval Office at the White House, on April 10, 2018 in Washington, DC. Mark Wilson/Getty Images

We continue to hear that some congressional Republicans actually do have limits beyond which Trump should not dare to go. That theory might soon be tested, as Trump—in his most extreme "l'etat c'est moi" moment yet—has denounced an FBI raid on his lawyer's offices as an "attack on our country" and is reportedly again seriously considering firing the special counsel, the attorney general, and the deputy attorney general.

There is no getting around the fact that such a move by Trump would create an immediate constitutional crisis—one that, in Trump's favored phrasing, would be "bigger than the world has ever seen before." But there are other Nixonian aspects to Trump's behavior that are also worth thinking about, just in case we never face the political Armageddon that on some days seems inevitable.

news report last week suggested that Trump wants to use "an obscure 1974 law" to eliminate spending items from the recent budget bill that Congress passed and that Trump—after supporting it but then threatening to veto it—grudgingly signed, warning (in what might be his least credible threat ever) that he would never sign such a bill again.

Trump was predictably unhappy with the bill, both because it actually included things in it that Democrats like (notably some increases in domestic spending—although such increases were still less than the increases in military spending) and especially because it did not include any funding to build Trump's ridiculous wall. He quickly took to lying about the wall funding, but he seems in any case to be incensed that the spending bill that he signed includes evidence of compromise by both sides.

Enter that obscure 1974 law, the Congressional Budget and Impoundment Control Act, 2 U.S.C. §§ 601688, which was actually a pretty major piece of legislation (creating the Congressional Budget Office as well as the House and Senate Budget Committees, just for starters). But the "impoundment control" part of the law is the issue here, and it is very much a story about Richard Nixon and the dangers of an imperial presidency.

In a battle to expand the powers of the presidency, Nixon had been "impounding" funds, which means that he was forbidding the executive branch from spending money that the legislative branch had appropriated through duly-enacted legislation. Nixon essentially said that such appropriations amounted to nothing more than upper limits on his ability to spend and that he could unilaterally decide not to spend all—or any—of the money that Congress had approved.

Understandably, Congress was incensed, because Nixon's approach essentially allowed him to undo legislative compromises that had been carefully crafted to pass the legislation. A farm-state senator, for example, might have reluctantly agreed to vote for a bill that included spending that he disliked (money for anti-poverty programs, for example) in return for the promise that money would be spent on farm subsidies. This is what legislative compromise looks like. If a president can cancel parts of a compromise, it is not a compromise but rather a sham.

Among other things, Nixon's approach would thus make it nearly impossible to get anything passed in the future, because every legislator would know that the president might simply cancel the spending that made the overall bill palatable. Congress challenged Nixon and won in the lower courts, but the Supreme Court never took up the case because the Impoundment Control Act (which Nixon signed while consumed by the threat of impeachment) seemed to make the matter moot. The Court did, in any event, later interpret that Act as removing the president's discretion not to spend appropriated funds.

What does the Act do to prevent presidential overreach? A president may request "rescission" of appropriated funds, at which point Congress has 45 days to respond. If both houses have not by that point approved the rescission, however, then the president must spend the money. All of the money. Congress is not even required to take a vote.

In the end, the Impoundment Control Act simply gives the president the ability to say to Congress, "Are you sure?" It gives the president the limited power of short delays, but it also gives Congress the power to ignore the request. The separation of powers is (mostly) respected, at least when one takes into account that an executive already has the power to delay payments within certain narrow limits in the ordinary course of governing.

What does Trump want now? The Washington Post reports that House Majority Leader Kevin McCarthy (the man who, by the way, would have been Speaker of the House if he could only have shut up about the Republicans' real reason for pursuing the Benghazi inquisitions) is working with the Trump Administration to try to use the Impoundment Control Act to undo the recent budget law.

Nixon U.S. President Richard Nixon seated at his desk, with family photos and the Lincoln bust visible behind him, in the White House Oval Office. Nixon ordered Attorney General Elliot Richardson to fire special prosecutor Archibald Cox for refusing to curb his investigation of controversial White House tapes.  Reuters Pictures

What makes this interesting is that, as far as I can tell, approving the rescission requests would only require 51 votes in the Senate, effectively eliminating the 60-vote rule that constrained Republicans in passing the spending law in the first place. If that is true, then Trump could get a de facto version of his cherished "nuclear option" for this type of legislation, with only 50 of the 51 Republican senators needed to do the dirty work (with Mike Pence supplying a tie-breaking vote, if needed).

It seems, however, to be very unlikely that the Republicans would get those 50 votes (or, for that matter, the 218 needed in the House), as a matter of simple politics. Rather than arguing over what to include in a spending bill, these votes would require Congress to take away things that it has not only promised to do but has actually already done. A bill that says, "Congress agrees to take away $1 billion dollars out of the $5 billion that it appropriated for ______," is very different as a matter of political perception from a bill that says that Congress is spending $4 billion rather than $5 billion on that program.

Moreover, just as we saw with unencumbered impoundment under Nixon, using the rescission rules would completely poison the waters for any cooperation on future legislation. Any legislator who votes for a bill would have to be sure that the items in it that she cares about would be safe from rescission, or nothing would pass.

At best, that would mean that the Republicans would have to pass spending laws with the votes of people who are sure that Trump and the Republicans would honor their commitments. And since no Democrat would fall for that, this would mean that Republicans would have to go nuclear after all. That is, they would have to pass spending laws with only Republican votes and then keep their word to each other. Would they even do that, knowing that Trump is volatile and that no one in Congress has a spine?

In the end, this little story is likely to go the way of Trump's request for a military parade on Pennsylvania Avenue. He spouts off about a lot of absurd things, but his ability to follow up is, shall we say, highly questionable.

But the very fact that Trump and the Republican leadership are even thinking about impoundment—and are willing to admit it publicly—tells us that Trump's inability to believe that there are win-win situations remains as strong as ever. In order for Trump to feel that he has won, he not only must get everything he wants, but his opponents must get nothing. Come to think of it, even Nixon was not that much of a sociopath.

Join the Discussion