Presidential executive power has expanded notably in recent Supreme Court terms, with rulings favoring the White House on agency control, limited criminal exposure for official acts, narrowed nationwide injunctions, and frequent success on the emergency docket. Less noticed is that this trajectory began decades ago in the realm of foreign affairs, a history that now informs the broader domestic shift and, as the current conflict in Iran underscores, offers a cautionary lesson.
The contemporary move toward a stronger, less constrained presidency traces at least to the Reagan era, the rise of originalism, and the Federalist Society’s influence. A key early thread was the unitary executive theory, which posits that Congress has little authority to restrict the president’s control over the executive branch. Justice Antonin Scalia’s dissent in Morrison v. Olson objected to statutory limits on removing an independent counsel. Over time, dissents like Scalia’s gained traction, and majorities increasingly endorsed broader executive authority beyond the unitary executive frame.
Donald Trump’s presidency marked a sharp escalation in claims of presidential authority. The Supreme Court often agreed. Last term, Trump v. Slaughter held that Congress cannot restrict the president’s plenary removal power over agency heads, overturning Humphrey’s Executor v. United States, a 91-year-old precedent. The court also recognized elements of presidential immunity from criminal prosecution, curtailed nationwide injunctions used to halt executive actions, and repeatedly sided with the administration on the emergency docket, even when it later ruled against the president in a tariff dispute.
Founders’ fears and the imperial presidency
There is irony in the court’s embrace of a more unchecked presidency while a president simultaneously tests boundaries in unprecedented ways. The shift is also defended as reflecting the founders’ design, a claim Justice Sonia Sotomayor challenged in her Slaughter dissent. She pointed to historical concerns voiced even by executive-leaning Alexander Hamilton, who warned that leaders who flatter the public can become tyrants.
This pattern is not new. Nearly a century ago, courts began carving out greater deference to the executive in foreign affairs.
Founding-era debates emphasized separated powers to prevent majoritarian overreach in state legislatures. In domestic governance, that meant strengthening the national executive and judiciary to check Congress’s “impetuous vortex.”
In foreign affairs, however, the founders feared concentrated executive power, especially with the president as commander in chief. They echoed Aristotle’s warning that tyrants foment war to consolidate leadership. Figures like James Madison cautioned that a standing army paired with an overgrown executive threatened liberty. To counter that risk, the Constitution blended authority across branches abroad as at home: the president negotiates treaties with Senate approval, the judiciary interprets treaties as supreme law, the president commands the military, and Congress declares war, regulates, and funds the forces, with courts adjudicating resulting disputes. The presidency was not intended to be imperial at the outset.
This balance largely held into the 20th century. As the United States grew from regional actor to global power, presidents of both parties asserted greater exclusive authority. For decades, the Supreme Court resisted. In Youngstown Sheet & Tube Co. v. Sawyer, the court rejected President Harry Truman’s bid to seize steel mills during the Korean War.
With the Cold War and the national security state, the court’s resistance ebbed. Two developments illustrate the turn: who interprets treaties, and who controls wartime operations.
The Constitution makes treaties the “supreme Law of the Land.” Many are self-executing and need no further congressional action, which suggests courts should interpret them. For nearly a century, courts gave no deference to executive treaty interpretations, even when the United States was a litigant. As America rose in global stature in the late 19th century, the Supreme Court began according the executive’s views special weight. A century on, that nominal deference has become nearly dispositive.
Wartime conduct raises even higher stakes. Scholarship indicates the founders expected Congress to be involved in initiating hostilities, aside from narrow defensive exceptions. Historically, courts played an active role once conflicts began. Chief Justice John Marshall invalidated executive actions that exceeded congressional authorizations, relied on international law to interpret statutes and judge military actions unlawful, and blocked executive seizures of enemy alien property when international law limited Congress’s war authorization. By contrast, modern courts have more often accepted expansive executive wartime claims.
Recent decades show how the court has broadened presidential latitude in foreign affairs through a robust state secrets doctrine, stricter standing and justiciability barriers, and skepticism toward international and human rights norms. Trump v. Hawaii exemplifies this. The court upheld travel restrictions on several Muslim-majority countries. The dissent argued established doctrine permitted consideration of the president’s own statements branding it a Muslim ban. The majority, citing foreign affairs and national security, declined to credit those statements and sustained the policy. Over time, such rulings have shifted constitutional power toward the executive in war and national security, a tilt that would likely alarm the founders and that enables a president to initiate hostilities with scant institutional constraint.
This foreign affairs experience should warn against similar trends at home. The founders opposed concentrated power anywhere, casting doubt on claims that the Constitution’s original understanding embraced a monarchic presidency. The growth of unchecked authority often occurs incrementally, with each step seeming manageable until the cumulative effect is plain. The current degree of presidential authority in foreign affairs suggests the public and institutions should react early when the temperature rises.
These risks might be mitigated by a chief executive who honors the unwritten norms established since George Washington. If a president disregards those norms, and if legislative and judicial checks remain weak, then, as Hamilton cautioned, demagogues can end as tyrants.
Some of these concerns have surfaced in recent immigration and national security cases, including when the Supreme Court dismisses immigration case set for October, reflecting the court’s ongoing role in shaping the scope of executive authority.
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