Whether he realizes it or not, he could help restore the system the Founders envisioned.

P resident Trump’s attempted freeze on discretionary federal spending has run into a buzz saw of condemnation in Washington. As with several of Trump’s initiatives, opponents claimed that he had violated the Constitution and threatened the American system of government. They even convinced a federal judge in Washington, D.C., to temporarily block the order. But what critics, and perhaps even Trump, may not understand is the greater significance of this fight: it represents an effort to free the presidency of the Watergate “reforms” that have long handicapped it.

In the disputed order, the White House directed federal agencies to “temporarily pause all activities related to obligation or disbursement of all Federal financial assistance” and “identify and review all Federal financial assistance programs and supporting activities consistent with the President’s policies and requirements.” After the federal court injunction, White House officials backpedaled, at first conceding that they had rescinded the freeze but then claiming that it remained in effect.

Trump’s other moves have received the same treatment. His blizzard of executive orders has sparked cries that he is expanding presidential power beyond its constitutional limits. A federal district judge last week blocked Trump’s order reversing birthright citizenship as “blatantly unconstitutional.” After he removed 17 inspectors general, the New York Times editorial board declared that “many of Mr. Trump’s first assertions of executive power blatantly exceed what is legally granted.” When Trump ended federal diversity, equity, and inclusion programs, government employees and grantees filed suit on the ground that the White House was violating their free speech rights and infringing on Congress’s power of the purse. “In the United States, there is no king,” the lawsuit claims.

But never mind the alarmism and exaggeration. Trump’s broader agenda marks a significant pivot point in the history of presidential power. Ever since the 1970s, liberal scholars, most famously Arthur Schlesinger Jr., have complained that the United States suffered from an “imperial” presidency that had led the United States into the Vietnam War. This critique still echoes today in opposition to “forever” wars, as the American presence in Afghanistan and Iraq came to be called, or to electronic surveillance of terrorists. Tulsi Gabbard, nominated to serve as director of national intelligence, once held this view. I have argued instead that recent presidents have behaved more in keeping with the constitutional system established by the Founders: Article II granted the executive power and the role of commander in chief to the president, balanced by Congress’s power of the purse.

But in response to Richard Nixon’s resignation over the Watergate scandals, Congress enacted a series of framework statutes that unbalanced the separation of powers in its favor. Even though Nixon had wielded presidential power in the same manner as his immediate predecessors, a heavily Democratic Congress used the convenient excuse of Watergate to place constraints on the energetic executive. To stop presidential uses of force, Congress enacted a War Powers Resolution under which any war not sanctioned by Congress would have to end after 60 days. Congress terminated all national emergencies and required presidents to use a new National Emergencies Act and International Emergency Economic Powers Act. To keep an eye on cabinet members, Congress created independent inspectors general within each agency to report back to the legislature on claims of fraud, waste, or abuse. The cherry on top was the independent counsel statute, which enabled the Justice Department to use its awesome power of prosecution against the president, White House officials, and the cabinet.

We can understand Trump’s executive orders — and the outrage that has greeted them — as a broader effort to finally undo these unconstitutional shackles of the post-Watergate era. The fight over spending is instructive. Trump’s order seems sensible as a temporary measure upon coming into office. Each president has constitutional and legal priorities of his own, and a spending pause allows him the time to make sure that agencies follow them, not those of his predecessor. Without temporarily freezing appropriations, for example, President Trump might be responsible for spending that advances unconstitutional race-based affirmative action or pays for abortions.

But suppose Trump had gone beyond a temporary pause to enact a permanent freeze on some spending. Contrary to the claims of Democratic members of Congress, the General Accounting Office (which works for Congress), and media critics, the Constitution does not require the president to spend every single penny in every congressional spending bill. Presidents since the time of Thomas Jefferson have refused to carry out appropriations; the constitutionality of such impoundments depends utterly on the reason. Nevertheless, in the wake of Watergate, Congress enacted the Budget and Impoundment Control Act, under which the president may present Congress with a list of impoundments for legislative approval. If Congress does nothing, the executive branch must spend the money — presidents from Ford to Biden have generally obeyed.

With its federal spending freeze, the Trump White House has two objectives that end this line of executive acquiescence. The first objective is to ensure that the best understanding of the Constitution allows each branch to interpret the law for itself while executing its own unique constitutional functions. Just as Congress made its view on impoundment known in the Budget Act, presidents have the duty to follow their own interpretation of the Constitution, and the courts may eventually weigh in with their own. Our greatest presidents — Washington, Jefferson, Jackson, Lincoln, and FDR — have adopted this “departmentalist” approach to interpretation, where constitutional meaning forever remains the subject of inter-branch competition and conflict.

The second, and more modest objective, for Trump is to freeze spending to set up a challenge to the constitutionality of the Budget Act. Critics of impoundment incorrectly claim that the Supreme Court has already upheld the ban on impoundments in Train v. New York (1975). Train, however, interpreted a federal water-project law to require that the EPA disburse all appropriated funds. The Supreme Court did not address the Budget Act at all, nor did it reach the constitutional question of impoundment. But even if it had, President Trump has the right to create the factual and legal setting for the Supreme Court to reconsider an earlier precedent.

Should Trump succeed in driving a case against the Budget Act to the Supreme Court, there are several grounds on which the Court could uphold a presidential impoundment power. First, the president should not carry out appropriations that violate the Constitution. Trump should refuse to spend funds, for example, that require federal agencies to favor one race over another. Such a law — and perhaps grant programs that require racial and gender diversity in applicants — would violate the 14th Amendment’s equal protection clause and the Supreme Court’s recent decision in Students for Fair Admissions v. Harvard. This rule is a corollary of the principle that the president should not execute any law that violates a constitutional provision. Article II, Section 3 of the Constitution declares that the president “shall take Care that the Laws be faithfully executed.” As Alexander Hamilton observed in Federalist No. 75, “the execution of the laws and the employment of the common strength either for this purpose or for the common defense, seem to comprise all the functions of the executive magistrate.” In Marbury v. Madison, Chief Justice John Marshall held that courts had to strike down unconstitutional laws; because the Constitution was the highest form of law, a statute inconsistent with the Constitution was no law at all. A congressional appropriation that violates the Constitution is also no law at all.

Second, the president should refuse to spend funds that violate the separation of powers, especially in cases where Congress interferes with the constitutional authority of the executive branch itself. Trump could refuse to spend appropriations, for example, that undermine Israel or bolster Iran. Presidents have long refused to execute appropriations that interfere with the president’s primacy in matters of war, national security, and foreign policy under his authority as commander in chief and chief executive. In 1803, for example, Jefferson refused to spend funds to construct gunboats to patrol the Mississippi River because it would have provoked Napoleon during the secret negotiations that produced the Louisiana Purchase. In the 20th century, President Harry Truman refused to spend $735 million on more Air Force groups than he requested, while President Dwight Eisenhower refused to carry out appropriations for at least a half-dozen weapons systems he did not want.

Third, presidents may exercise the authority to reduce spending for reasons of efficiency or to respond to changed circumstances. Indeed, the Founders created an executive branch with a single head in order to reap the gains from the “decision, activity, secrecy and dispatch” of one man, as Hamilton wrote in Federalist No. 70, which they believed would bring “energy in the executive,” the very “definition of good government.” Suppose Congress appropriates $100 million for the construction of a bridge, but the agency can build it for $75 million thanks to lower labor and material costs. Or suppose circumstances change and the agency discovers a new route for the bridge that reduces costs even further. The Founders created a constitutional system that gives the president the necessary means — and the incentives — to administer it effectively. Critics of impoundment want, in Hamilton’s words, “a feeble executive,” and, as he wrote, “a feeble executive implies a feeble execution of the government. A feeble execution is but another phrase for a bad execution. And a government ill executed, whatever it may be in theory, must be in practice a bad government.” If Congress does not directly mandate the spending of a set amount of money on a singular item, but rather provides the agencies with discretion to select worthy grants and projects, the Constitution should allow an energetic executive to save taxpayer money in the interests of efficiency and effectiveness. Officers of the United States should fly coach even if Congress wants them to fly business.

This is not to argue that presidents have discretion to pick and choose among the spending laws that they like. Because the duty to execute the laws is placed upon presidents, the executive branch has an obligation to carry out spending laws that fall outside of these three categories of impoundment. Nixon triggered Congress to enact the Budget Act because, upon winning a massive reelection in 1972, he announced wholesale moratoriums on specific programs in order to reduce overall government expenditures and, he hoped, inflation. Nixon could not claim that he was refusing to execute unconstitutional appropriations, protecting the national security, or managing programs more efficiently. A simple policy disagreement with Congress does not provide the grounds for refusal to execute a law.

Many have compared Trump to Nixon, especially in their running battles against government bureaucracy, the political establishment, and the media. But in this case, Trump would do well to disregard the Nixon example. Instead of claiming a broad right to reduce all federal spending, he can target appropriations on grounds of unconstitutionality or inefficiency. Rather than accept the congressional intrusions of the Budget Act, enabled by Nixon’s political weakness during Watergate, Trump can drive an impoundment case to the Supreme Court while still occupying the political heights. Future presidents, both Republican and Democrat, will thank him if he can begin to break the bonds of Watergate and restore the presidency to its original energetic design.