1973: Illegal. 2025: Greenlit.
Greetings from Washington, D.C.
Not pictured: An abundance of poorly timed RBG reminders.
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ICYMI
I covered the Supreme Court in my first essay as the NYTBR’s American History columnist.
The next installment of Commanders-in-Heat is coming soon. If you missed the first two, catch up here.
1973: Illegal.
2025: Greenlit.
On June 27, 1973, a federal judge told President Richard M. Nixon he wasn’t a monarch with a line-item veto. He was the head of a constitutional republic.
It wasn't Nixon’s first swing at the Clean Water Act, a sweeping environmental law. He'd vetoed it. Congress passed it anyway.
A year later, he still didn’t like it, so he refused to release the $6 billion Congress had appropriated to fund it.
This wasn’t politics as usual. It wasn’t taken as a disagreement between coequal branches. It was sabotage—strategic, sustained, and coming straight from the Oval.
“The President has no dispensing power,” Judge William B. Jones of the U.S. District Court in Washington, D.C., wrote when slapping him down in State of New York v. Nixon. Nixon could not “frustrate the will of Congress by killing a program through impoundment.”
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In a very different Congress than we know, it wasn’t even a close call. Senator Sam Ervin, Democrat of North Carolina and chair of the Senate Watergate Committee, called Nixon’s tactics “a direct assault on legislative supremacy.” Representative Dante Fascell, a Democrat from Florida and senior member of the House Foreign Affairs Committee, put it more bluntly: “No one elected Richard Nixon to rewrite the Constitution.”
Congress responded the next year by passing the Congressional Budget and Impoundment Control Act of 1974. It didn’t leave much room for ambiguity: the president shall faithfully execute the laws of the United States, even the ones he doesn’t like.
Nixon tried to erase a law with a pen stroke. Congress took the pen away. Yesterday, the Supreme Court handed it back.
The Department of Education, established by Congress, is now as vulnerable as the children of this nation. The Trump administration—under an executive order to dismantle it—is proceeding with mass layoffs and funding cuts after the Supreme Court lifted a lower court’s injunction and cleared the way.
If Congress wanted to stop this, it could—right now. Off the top of my head: It could pass binding legislation, block appropriations, haul officials into hearings, even impeach them for defying statutory law.
But the Congress we know isn’t defending anything. It’s already surrendered.
On a Related Note
Congress is so much worse up close.
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The contrast really shows the difference between a spineless Congress and one with a spine. A great article. I want my country back.
Good point. The man who did more than anyone to design the Constitution (Madison), and the man who did more than anyone to get the Constitution passed (Hamilton), and who had worked as firm allies, fought bitterly after it became law about what it meant. Nor were Washington and Jay immune, or, for that matter, the public. I’m not sure how I should feel about the six “Originalists” on SCOTUS wielding power for the Original understanding. I’m torn from irony, anger, and futility. In the Times on June 9, J. Joel Alicea wrote that the Court was not lawless (an oblique shade on Leah Litman’s book) but committed to a Constitutional theory. It seems to me that if these Originals fought with such vigor it nearly tore the country apart, it is a poor theory to ground interpreting the Constitution. Your post highlights that.