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For its potential to provoke a constitutional crisis, Donald Trump’s attempted freezing of trillions of dollars of federal funds pending a “review” evoked the darkest days of Watergate.
Monday’s memo from the White House office of management and budget (OMB) ordering a “temporary pause” on a vast array of spending activities across the US federal government convulsed official Washington in a manner arguably unseen since the Saturday Night Massacre of 1973.
Richard Nixon sparked frenzied accusations of a presidential coup and assaulting the rule of law when he tried to fire Archibald Cox, the special prosecutor appointed to investigate Watergate, before dispensing with the attorney general and his deputy after both declined to follow his order to carry out the sacking.
Similarly apocalyptic warnings greeted the OMB memo, which followed an onslaught of radical executive orders from the returning president that had already had an electrifying effect, including one that attempted to end constitutionally guaranteed birthright citizenship, and the pardoning of about 1,600 rioters convicted of the January 6 insurrection.
“It’s an attack on the constitution and a blatant violation,” said Rob Bonta, California’s attorney general, one of a coalition of Democrat state attorneys general who filed a legal suit to prevent the freeze from taking effect. Jamie Raskin, the ranking Democrat on the House of Representatives’ judiciary committee, called it “a breathtaking attack on the American people, the constitution and the rule of law”.
Yet where Nixon’s – counterproductive and ultimately doomed – attempt at halting the Watergate inquiry was unrehearsed and born of desperation, Trump’s assault on spending programmes has been thought through and was months in the planning.
Its brainchild is Russ Vought, who headed the OMB in Trump’s first presidency and has been nominated to the post again. Vought, founder of the rightwing Center for Renewing America thinktank has commissioned a series of policy papers arguing, in effect, that the president is empowered to seize funds authorised by Congress for different spending priorities, even though the law states differently.
In Vought’s crosshairs is the Impoundment Control Act of 1974, passed, weeks before Nixon resigned, in response to the president’s aggressive practice of impounding funds appropriated by Congress. The law has been in place since and “establish[es] a procedure providing congressional control over the impoundment of funds by the executive branch”. But Vought’s thinktank has called it “norm-breaking, unprecedented, and unconstitutional”, and argues there is nothing illegitimate about such impoundments.
An article on the centre’s website calls the right to impound “merely the President’s constitutional power to decline to spend the full amount of what Congress appropriated”.
This argumentation has been flatly contradicted by some constitutional scholars who say it would, if carried to conclusion, negate the very purpose of Congress by overlooking its spending role as enshrined in the US constitution.
The Trump impoundment bid raised a “fundamental issue” about the nature of US government, wrote Steve Vladeck, a law professor at Georgetown University. “If presidents can impound appropriated funds at any time and for any reason, then there’s not much point to having a legislature.”
The sheer audacity of Trump’s power grab may have the effect of shocking the Democrats out of their apparent post-inauguration disorientation – a state of mind that seemed apparent on Monday, hours before the memo’s emergence, when senior party figures, including the Senate minority leader, Chuck Schumer, issued earnest appeals to the new administration to reduce “the price of eggs”.
The party’s congressional membership now has a more animating target. Even if the Democrats were to retake control of the House or Senate in the 2026 midterm elections, victory would be rendered hollow were the Trump view to prevail because he could simply undercut any spending decisions by withholding funds.
With the White House initiative now temporarily stalled by the ruling of a US district court judge, the issue appears destined for the US supreme court – which, coincidentally, is where Nixon’s instigation of the Saturday Night Massacre eventually led, to his ultimate cost.
Even with a six-to-three conservative majority that last year handed Trump extensive immunity from prosecution, the state attorneys general who filed to block the memo’s implementation voice confidence that their arguments will prevail if the matter reaches the bench.
“Those justices took an oath to uphold the constitution of this nation,” said Matt Platkin, the New Jersey attorney general. “I’m confident that the supreme court – even this supreme court – will see this case for what it is, which is an unlawful, unconstitutional and un-American attempt to hurt people to score political points.”
Some commentators were less sure – reflecting the fact that three of the court’s current justices were appointed to the bench during Trump’s first presidency, while others have known sympathies with his administration’s goals.
“The Trump administration wants to be sued over this,” wrote David Dayen in the American Prospect.
“They think the supreme court will uphold unilateral impoundment and consign Congress to merely ministerial functions. At some level, you have to ask yourself: Why is the White House so confident to push impoundment in so many ways in their first week on the job? Who have they talked to on the court? Is this hubris or foreknowledge?”
