In his defense of the proposed Constitution, James Madison warned in Federalist No. 47 that the accumulation of all powers—legislative, executive, and judicial—in the same hands may justly be pronounced the very definition of tyranny. Elsewhere, he observed that of the three branches, the executive was the one most to be feared, as it concentrated power in a single individual. And in Federalist No. 8, he presciently noted that war “is the true nurse of executive aggrandizement.”
With the United States functionally at war for more than two decades—against terrorism, against drugs, against invisible viruses, and against geopolitical rivals—the presidency has accrued a staggering array of emergency powers. These powers, initially intended for rare and exceptional circumstances, have become permanent features of executive governance. As recent presidents—Bill Clinton, W. Bush, Barack Obama, Donald Trump, Joe Biden, and now Trump again—have each pushed the boundaries of executive authority, a troubling pattern has emerged. What one party celebrates as strong leadership under “their guy” becomes an established and dangerous precedent when the other side takes the reins.
No one who favors liberty and limited government should be cheering this on, but as shall be shown the trend toward increasing executive power goes back over a century.
Indeed, arguably the clearest example of the abuse of emergency power in American history remains the suspension of habeas corpus during the Civil War. The Constitution allows for suspension only in cases of rebellion or invasion, and vests that authority in Congress (Article I, Section 9). But in 1861, President Abraham Lincoln suspended habeas corpus on his own initiative. When Chief Justice Roger Taney ruled this unconstitutional in Ex parte Merryman, Lincoln ignored the ruling. The episode set a precedent for executive overreach during wartime—and for the courts’ reluctance or inability to stop it.
Nearly a century later, in Youngstown Sheet & Tube Co. v. Sawyer (1952), the Supreme Court reasserted limits on presidential power when it struck down Harry Truman’s attempt to seize steel mills during the Korean War. Justice Robert H. Jackson’s concurring opinion laid out a still-influential framework for evaluating presidential authority based on whether the executive acts with, against, or absent congressional authorization. Yet even this framework has proven to be a speed bump, not a roadblock.
The National Emergencies Act of 1976 (NEA) was intended to rein in the proliferation of presidential emergency declarations. Ironically, it has done the opposite. Under the NEA, presidents may declare national emergencies and thereby unlock specific powers embedded in over 120 statutory provisions. These include the International Emergency Economic Powers Act (IEEPA), which allows the president to freeze assets, block financial transactions, and even control communications infrastructure.
Another powerful tool in the presidential arsenal is the Communications Act of 1934, particularly Section 706, which grants the president control over “any station or device” during wartime or a declared emergency. While never fully tested in the digital era, this statute theoretically allows the executive to seize control of internet and telecommunications infrastructure—an alarming possibility in an age of cyberwarfare and information control.
Perhaps the most controversial recent expansion of executive power came via the National Defense Authorization Act (NDAA) for Fiscal Year 2012, signed by President Obama. Sections 1021 and 1022 authorize the indefinite detention without trial of individuals—including, potentially, U.S. citizens—who are deemed to have substantially supported al-Qaeda, the Taliban, or associated forces.
Civil libertarians sounded the alarm immediately. Though Obama issued a signing statement asserting he would not use the law to detain U.S. citizens, the statute itself contains no such limitation. In Hedges v. Obama (2013), a group of journalists and activists sued the administration, arguing that the vague language could encompass their work. While a district court initially agreed, the Second Circuit overturned the ruling on standing grounds, not on the merits.
The NDAA’s detention provisions rest on the 2001 Authorization for Use of Military Force (AUMF), passed just days after 9/11. That single-page statute has served as the legal basis for an ever-expanding global conflict, including drone strikes, special forces operations, and covert activities in countries never named in the original resolution. Every president since Bush has cited it as the foundation for their counterterrorism actions—without returning to Congress for updated authorization.
In theory, Congress is supposed to check executive power. In practice, it has abdicated this role. War-making, once a core congressional prerogative under Article I, has been effectively ceded to the president. The War Powers Resolution of 1973, which sought to restore balance by requiring the president to notify Congress within forty-eight hours of deploying troops and to withdraw them within sixty days absent authorization, is routinely ignored or sidestepped.
Meanwhile, Congress continues to rubber-stamp sprawling defense authorizations, granting vague and open-ended powers while avoiding accountability. This dynamic has contributed to the rise of a bureaucratic national security state that answers primarily to the executive. The intelligence community, the Department of Homeland Security, and a labyrinth of interagency task forces all operate with considerable autonomy and opacity, shielded by classifications and executive orders.
Supporters of strong executive action often assume their preferred candidate will wield these powers wisely. But as history repeatedly shows, power once gained is rarely relinquished—and often repurposed by the next occupant of the Oval Office. As President Trump pushes the boundaries of emergency powers and administrative control, he does so on the foundation laid by his predecessors. And should another populist executive return to power, they will inherit an apparatus even more robust and unaccountable than before.
To cheer for unchecked executive power is to forget the basic design of the Constitution: to separate and limit authority precisely to avoid tyranny. Madison’s fear was not misplaced. In times of war, the executive grows fat on necessity and fear. And America, for all practical purposes, has been at war for a generation.
The imperial presidency is not a Trumpian innovation. It is the logical consequence of decades of congressional surrender, judicial ambiguity, and public acquiescence. But as the cycle continues, the stakes only grow.
