The Volokh Conspiracy
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New in Civitas: Trump Is Refighting The "War" That Congress and the Burger Court "Waged" Against President Nixon
"The Burger Court approved this war. Trump is now successfully refighting that war."
Civitas has published my new essay, titled Trump Is Refighting The "War" That Congress and the Burger Court "Waged" Against President Nixon. This essay brings together several threads about Trump, the Roberts Court, the Burger Court, and the fallout from Watergate.
Here is a snippet:
The epochs of constitutional law in the twentieth century are well known. During the so-called Lochner Era in the early twentieth century, the Court carefully scrutinized federal and state economic regulations. The New Deal Court reversed course and largely deferred to these laws. The Warren Court is well known for expanding civil and criminal rights, while reinforcing democratic processes. The Burger Court, if it is remembered at all, unleashed Roe v. Wade (1973) on our polity. But over the ensuing three years, the Burger Court decided three landmark cases that drastically and hastily transformed the structure of the federal government. All of these decisions resulted directly from the Watergate scandal. First, United States v. Nixon (1974) permitted a federal prosecutor to issue a subpoena to President Nixon to produce the Watergate Tapes. Second, Train v. City of New York (1975), found that President Nixon could not "impound," or withhold certain funding. Third, Buckley v. Valeo (1976) largely upheld the Federal Election Campaign Act, as well as the Federal Election Commission that enforces the Act.
There is a fourth decision that bears mentioning. The Ethics in Government Act (1978) created the independent counsel statute as a means to prevent future Watergates. This provision empowered a prosecutor to investigate the executive branch with sweeping authority and broad independence. The Rehnquist Court upheld this statute in Morrison v. Olson (1988) over the vigorous and legendary dissent of Justice Antonin Scalia.
The Supreme Court has already taken steps to deconstruct many of these precedents. Citizens United v. FEC (2010), followed by McCutcheon v. FEC (2014), more or less rendered Buckley a nullity, as vast amounts of money can now indirectly flow to the political process. Both Republican and Democratic politicians have benefited from these rulings. Trump v. United States (2024) granted President Trump broad immunity from criminal prosecutions and scaled back the import of the Watergate Tapes case. I have called on the Court to reconsider United States v. Nixon, which was an early manifestation of lawfare. And this term, the Supreme Court is poised to undermine Morrison by overruling Humphrey's Executor v. FEC, a New Deal era precedent that upheld so-called "independent" agencies.
I write that the Supreme Court's recent decision in the AIDS Vaccine Coalition case should not be viewed as a narrow, one-off. Rather:
This ruling is part of a series of cases in which the Court is scaling back Congress's efforts to control the presidency in the wake of Watergate. An entire structural edifice of government was created to constrain the executive. And the Roberts Court is now dismantling those structures.
I think this framing helps to understand why Justice Kagan referred to Congress as waging a "war" against President Nixon:
In dissent, Justice Kagan charged that the majority misread the Nixon-era statute. But more importantly, Kagan faulted the conservatives for ignoring the context in which the Impoundment Control Act arose. She reminded everyone that the "ICA [was] enacted after Congress waged war with President Nixon over impoundments." Kagan added that "Congress w[o]n its confrontation with the President." It is unconventional for a Supreme Court opinion to describe Congress as waging a war and winning a confrontation with the president. Supreme Court Justices are not political commentators. Yet Kagan, perhaps unintentionally, identified the reason why so much of constitutional law went awry.
Trump is now successfully refighting that war.
