In Federalist No. 70, Founding Father Alexander Hamilton championed the concept of “energy in the executive,” arguing that a strong, decisive president was essential for effective governance.[1] More than 200 years later, President Donald J. Trump’s leadership appears to embody this principle through his aggressive approach to decision-making. Within just the first 100 days of his second term, Trump has unilaterally declared a record-setting eight national emergencies[2] and issued 142 executive orders,[3] invoking sweeping executive authority over issues ranging from border security to international tariffs.

However, to argue that Hamilton would justify Trump’s recent actions is not only historically misconstrued but also constitutionally unsound. What began as a robust constitutional framework for limiting presidential authority has, over time, eroded under the weight of unchecked delegations of power. The nondelegation doctrine—once a central constitutional guardrail—now functions as a hollow formality, no longer enforcing the separation of powers envisioned by the Framers in the Vesting Clause of Article I.

This essay will explore the historical developments and precedents that have enabled Trump’s quasi-legislative powers—specifically, how the normalization of emergency-driven governance, paired with the erosion of the nondelegation doctrine, has rendered both the separation of powers and system of checks and balances virtually obsolete in the modern presidency. 

Background

The Founding Fathers were acutely aware of the dangers of consolidated and unlimited power. Driven by the desire to shed its monarchical past, the Framers were determined to create a constitution grounded in the separation of powers and checks and balances.
The Founders’ deliberate division of powers is evident through the first three articles of the Constitution, which explicitly delegates the distinct roles of the legislative, executive, and judicial branches.[4]

For example, the Vesting Clause (art. I, § 1) states, “All legislative Powers herein granted shall be vested in a Congress of the United States.”[5] This language not only defines Congress’s authority but also suggests that the legislative branch cannot transfer its powers to the other branches. Early American jurisprudence formalized this limitation through the nondelegation doctrine, prohibiting Congress from commissioning its core legislative powers to other entities.

The doctrine was first established in 1825 with Wayman v. Southard.[6] Here, the court examined Congress’s delegation of rulemaking authority to federal courts under the Process Acts of 1789. In his landmark opinion, Chief Justice Marshall drew a critical distinction between delegations of ancillary powers (such as judicial procedures) and unconstitutional transfers of core legislative authority, affirming that “the legislature makes, the executive executes, and the judiciary construes the law.”[7] This framework would be foundational for future debates about congressional delegation.

Over a century later, J. W. Hampton, Jr. & Co. v. United States (1928) built on Wayman by introducing the “intelligible principle” test—the standard determining if Congress has handed off its powers unconstitutionally.[8] In J.W. Hampton, the Supreme Court reviewed the Tariff Act of 1922, which gave the president power to adjust tariffs if he found that another country was placing a disproportionate tariff on U.S. goods. As a result of this act, customs importer J.W. Hampton Jr & Co. was forced to pay a higher dutyon their imports than they would have under the original rate set by Congress. Despite the company’s constitutional challenge, the Court unanimously ruled that if Congress defines clear boundaries of its delegation, it could freely transfer discretion.[9] The court reasoned that the executive acted merely as “the agent of the lawmaking department” when operating.[10]

This decision marked a clear departure from the originalist interpretation of the Vesting Clause and a shift towards governmental efficiency over strict separation of powers. Though J.W. Hampton codified a functionalist approach to applying the Constitution, Congress had long before normalized delegating its legislative authorities to the president.

The Birth and Development of Emergency Powers

Abraham Lincoln’s use of emergency powers during the Civil War marked the first time in which the Vesting Clause was fundamentally challenged. Facing existential threats to the Union, Lincoln suspended the writ of habeas corpus, raised a national army without Congressional approval, and implemented a blockade on Southern ports[11]– arguably manifesting Hamiltonian thinking. When Chief Justice Roger Taney ruled that only Congress could suspend the writ of habeas corpus in Ex Parte Merryman, Lincoln famously ignored the ruling and claimed necessity to legitimize overstepping legal boundaries.[12] His noncompliance would later be validated by the Habeas Corpus Suspension Act of 1863[13], completely abrogating Ex Parte Merryman’s original judgment and setting a powerful precedent for executive overreach in times of crisis.[14]

Lincoln’s presidency is the archetype of a “constitutional dictator”—a leader who, facing existential threats (the Civil War), expands executive authority beyond normal limits but does so intending to restore democratic governance.[15] However, while Lincoln’s use of emergency powers were wartime exceptions, Lincoln would substantially alter the discretionary authority of the executive branch, laying the groundwork that would construct future presidential emergency powers. While Lincoln’s decisions ultimately preserved the Union, he also established that constitutional limits on presidential power become negotiable in times of national crisis.

The consequences of this expanded authority became apparent during World War II. In 1942, FDR famously issued Executive Order 9066, authorizing the military to designate “exclusion zones” for Japanese Americans for the purpose of “national security.”[16] Notably, the policy was bolstered by the decision in Korematsu v. United States, which upheld Japanese internment.[17] The majority ultimately applied the strict scrutiny standard, writing, “Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can.”[18]

In both Lincoln and Roosevelt administrations, the suspension of the writ of habeas corpus under the grounds of necessity illustrated a troubling truth. While Lincoln is celebrated for preserving the Union, FDR is condemned for discrimination and violating civil liberties. Both presidents leveraged the same rationale for decision-making, but public perception of their prerogative diverges dramatically. Herein lies the issue: “necessity” is an inherently subjective, vague, and fluid standard. This flaw perpetuates executive overreach and congressional abdication.

Initially, the judiciary resisted this trend. Years prior to Korematsu, the Supreme Court struck down FDR with Panama Refining Co. v. Ryan, asserting that Roosevelt could not regulate interstate oil transportation without clear policies and standards.[19] By effectively applying the nondelegation doctrine, the judiciary limited the abuse of executive discretion. Similarly, in A.L.A. Schechter Poultry Corp. v. United States, the Court struck down the National Industrial Recovery Act (NIRA), a key component of economic policy in the New Deal.[20] The Court ruled that the NIRA was unconstitutional because it improperly delegated legislative power to the President.[21] In the unanimous ruling, the court further reasoned that Congress exceeded its authority under the Commerce Clause by regulating intrastate activities that were not directly related to interstate commerce.[22] However, while both cases clearly restricted presidential power, the New Deal ultimately eclipsed this brief judicial resistance.

As the single largest economic crisis of its time, the Great Depression overpowered nondelegation through the need for executive efficiency. Consequently, the New Deal—at the time representing an unprecedented expansion of federal economic intervention— was launched on the basis of this necessity. It also drove FDR’s infamous court-packing plan, which the Supreme Court struck down as unconstitutional. Nevertheless, it contributed to the court leaning towards a more deferential stance, and the nondelegation doctrine has not been applied since.[23]

Emergency Powers fueled through the NEA and IEEPA

Central to the expansion of emergency presidential powers is the gradual abdication of power by Congress through the National Emergencies Act (NEA) and the International Emergency Economic Powers Act (IEEPA). Enacted in 1976, the NEA aimed to restore Congressional oversight by requiring presidents to publicly declare national emergencies, report to Congress every six months, and automatically terminate the emergency after one year unless renewed.[24] While the NEA was enacted to curb the president’s emergency powers, it neither limited nor targeted broad discretionary power.[25] Rather, it further confirmed the deterioration of the nondelegation doctrine, normalized emergency governance, and provided the president broad bandwidth statutory laws.[26]

Similar in essence to the NEA, the IEEPA grants the president authority to regulate international commerce during a declared national emergency marked as an “unusual and extraordinary threat” outside of the U.S.[27] Once declared, the president may block transactions, freeze assets, and impose sanctions on foreign entities and individuals without prior congressional approval. Although ostensibly a tool for economic defense, the IEEPA’s broad and vaguely defined language has enabled presidents to bypass the traditional legislative process under the guise of protecting national security. Likewise, INS v. Chadha (1983) abated Congress’s ability to reject national emergencies by ending one-house vetoes, adding yet another obstruction to congressional oversight.[28]

In this light, the NEA and IEEPA codify a framework of emergency governance that, while constitutionally permitted, is structurally vulnerable to exploitation. Their vague statutory language—paired with the collapse of nondelegation enforcement—has enabled successive presidents to wield quasi-legislative powers with minimal constitutional constraint. As a result, the line between lawful delegation and unlawful aggrandizement of executive power has grown dangerously thin.

Implications for Trump’s America

The modern presidency faces fewer practical checks than ever before, and President Trump has clearly demonstrated that he is not afraid to exploit the incremental growth of executive powers. In February 2019, Trump declared a national emergency under the NEA after Congress refused to fully fund his border wall.[29] He sought to redirect $6.1 billion in military funds (via 10 U.S.C. § 2808 and other statutes) to build the wall, bypassing Congress’s appropriations power.[30] However, the Sierra Club and others sued the president, arguing that there was no real national emergency and that he violated the Appropriations Clause (art. I, § 9).[31] The Court never officially examined the merits of the declaration because Trump left office, but the Court still signaled executive deference when they allowed construction to proceed while appeals were pending.

Most recently in his second term, President Trump issued his eighth national emergency through the IEEPA, declaring that persistent trade deficits have eroded domestic manufacturing, weakened critical supply chains, and left the defense-industrial base reliant on foreign adversaries.[32] As part of his “Liberation Day” initiative, President Trump imposed a baseline 10% tariff on all countries, marking a significant change in U.S. trade policy.[33] Despite the president’s justification that trade deficits have jeopardized economic and national security, experts remain dubious over the validity of his national emergencies.

In fact, most economists agree that trade deficits are a natural aspect of the economy and point out that the United States economy was outperforming every other nation as of January 2025.[34] The vice president of general economics at the Cato Institute even stated that calling the trade deficit a national emergency is “beyond a stretch.”[35] Similarly, Trump’s energy and immigration emergencies have also been questioned by experts. The U.S. is already the world’s largest producer of oil and gas, yet the activation of a national emergency would allow the president to expedite fossil fuel production and directly bypass Congress’s funding approval to build a wall.[36]

Though it is increasingly evident that the president drives his political agendas by leveraging national emergencies, the odds remain favorable for President Trump. With both chambers of Congress under Republican control and statutory emergency powers already expansive, President Trump faces few institutional constraints. The uncomfortable reality is that crisis now defines presidential authority, and the separation of powers, a cornerstone of American democracy, operates as a conditional aim. In a government founded on deliberate friction between branches, the Constitution and its seemingly distinct delineation of powers are increasingly silent when “necessity” becomes the sole justification for executive action.

Contextualizing Trump’s Actions within Historical Precedent

It is crucial to recognize that Trump’s executive overreach did not originate in the last six months, or even since he first took office in 2017. Rather, his powers have been derived from an incremental accumulation of executive powers, dating back to Lincoln’s Civil War policies. For years, scholars and policymakers have warned of the dangers inherent in unchecked emergency powers, fearing what might happen when a president fully exploits them. Trump has made that fear a reality, and the danger lies not just in the power itself, but in the ambiguity that surrounds it. It is the vagueness of “necessity” and “emergency” that fuels Trump’s overreach. Because while his actions may erode democratic principles, they remain technically constitutional.

What ultimately distinguishes Trump’s executive expansion from FDR or Lincoln is the historical momentum behind them. Trump wields generations of precedent that have slowly shifted the balance of power toward the presidency. His abuses are not anomalies, but logical conclusions of a system that has increasingly tolerated, even embraced, executive aggrandizement.

Weighing Presidential Nondelegation in Modern Democracy

The world in which the Founders created American democracy—a world of slow communications and a world that idealized limited foreign affairs—no longer exists. Nor does the world in which the nondelegation doctrine was conceived. Thus, applying a strict, originalist interpretation of the Constitution is no longer practical or desirable. Indeed, modern governance requires speed, accuracy, and flexibility that the Framers could never have fully anticipated.

The terrorist attacks on September 11, 2001, underscored this reality. In response to the attacks, President George W. Bush invoked the IEEPA to freeze U.S. assets of 27 terrorist organizations and individuals, including Al-Qaeda and the Taliban, within hours.[37] He further blocked financial transactions linked to terrorist groups, disrupting their funding channels.[38] Had the courts rigidly enforced the nondelegation doctrine, such swift and decisive action would have been impossible. Accordingly, presidential agility in crisis can be vital for national security, even if it requires Congress to cede some control.

This trade-off lies at the heart of the modern nondelegation debate. As concerns about unchecked delegation have resurfaced in recent years, Justice Neil Gorsuch’s dissent in Gundy v. United States (2019) has become a focal point in potentially reviving nondelegation. In Gundy, the Court upheld a provision of the Sex Offender Registration and Notification Act, which authorized the Attorney General to determine how the law would apply to pre-act offenders.[39] Gorsuch’s dissent argued that this delegated too much legislative power. He proposed a revised “intelligible principle” test, under which Congress may only delegate factual determinations—not broad policy judgments—to the executive.[40] However, the “Gorsuch test” would drastically curtail modern administrative governance and could invalidate significant areas of federal regulatory law.[41]

The imbalance of power is not irreversible, however. Restoring equilibrium among the three branches of government requires Congress to take a modern approach in checking the president’s power. Historically, the nondelegation doctrine has been tried in cases involving Congress’s delegation of power to federal agencies, but modern times prompt rethinking this limited application. Current legal discussions focus narrowly on agency rulemaking, overlooking how modern presidents can exploit delegated powers under statutes like the NEA and IEEPA. This conventional framing ignores a fundamental constitutional insight: a modern application of the nondelegation doctrine may need to evolve to reaffirm restrictions not only on agency authority, but also on presidential authority—both of which are central to the doctrine’s historical purpose and the structure of administrative law itself.⁴³

Equally critical is the judiciary’s willingness to uphold these boundaries and reject a deferential stance to the president. As such, reclaiming checks and balances and the separation of powers involves recognizing that the solution lies within the very framework of the problem. By applying a modern approach to outdated but constitutionally correct doctrines and refining existing statutory frameworks, Congress and courts alike can reestablish their power—even in times of national emergency. The belief that the other branches must cede power during crises is itself an outdated way of thinking—one that underestimates the ability of a functioning democracy to uphold both constitutional order and national security without collapsing into executive overreach.

The notion that reviving the nondelegation doctrine must involve an originalist approach is narrow. Rather than ignoring the realities of modern governance, the doctrine should evolve as a historically informed standard that is grounded in democratic and congressional accountability. As Thomas Jefferson wrote, “…with the change of circumstances, institutions must advance also to keep pace with the times.”[42]

Conclusion

Just as George Kennan denounced the misapplication of his containment theory to justify U.S. involvement in Vietnam,[43] Alexander Hamilton would recoil at the distortion of his call for “energy in the executive” in Federalist No. 70. What Hamilton envisioned was not the unrestrained authority that is proliferating at present times; instead, he hoped for a decisive presidency anchored in constitutional boundaries. With the nondelegation doctrine effectively abandoned, broad statutory frameworks like the NEA and the IEEPA, and a judiciary that increasingly defers to the executive, the modern presidency has eclipsed the structural safeguards embedded in the Framers’ original design of democracy. In a nation founded on constitutional separation of powers, the defining question is no longer whether the president is too powerful, but whether the Constitution can still restrain that power at all.

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[1] Hamilton, Alexander, James Madison, and John Jay. The Federalist. Edited by Jacob E. Cooke. Middletown, CT: Wesleyan University Press, 1961.

[2] Chris Walker, “Trump Has Issued 8 ‘National Emergencies’ Since Reentering the White House,” Truthout, April 18, 2025, https://truthout.org/articles/trump-has-issued-8-national-emergencies-since-reentering-the-white-house/.

[3] Fin Daniel Gómez and Anne Bryson, “Trump Sets Executive Order Record in His First 100 Days,” CBS News, April 29, 2025, https://www.cbsnews.com/news/trump-executive-orders-record-first-100-days/.

[4] U.S. Const. art. I–III.

[5] U.S. Const. art. I, § 1.

[6] Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 41 (1825).

[7] Id. at 23.

[8] J. W. Hampton, Jr. & Co. v. United States, 276 U.S. 394 (1928).

[9] Id.

[10] Id. at 411.

[11] Patterson, James T. “The Rise of Presidential Power before World War II.” Law and Contemporary Problems 40, no. 2 (1976): 39–57. https://doi.org/10.2307/1191370.

[12] Martin, David L. “When Lincoln Suspended Habeas Corpus.” American Bar Association Journal 60, no. 1 (1974): 99–102. http://www.jstor.org/stable/25726554.

[13] Habeas Corpus Suspension Act of 1863, ch. 81, 12 Stat. 755 (1863).

[14] See Tichenor, Daniel J. “Historical Set Points and the Development of U.S. Presidential Emergency Power.” Perspectives on Politics 11, no. 3 (2013): 769–88. http://www.jstor.org/stable/43279646.

[15] See Clinton Rossiter, Constitutional Dictatorship: Crisis Government in the Modern Democracies (Princeton, NJ: Princeton University Press, 1948), 224.

[16] Conrat, Maisie, compiler. Executive Order 9066; the Internment of 110,000 Japanese Americans. [San Francisco]: California Historical Society; [distributed by Serimshaw Press], 1972.

[17] Korematsu v. United States, 323 U.S. 214 (1944).

[18] Id. at 323.

[19] Panama Refining Co. v. Ryan, 293 U.S. 388 (1935).

[20] A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935).

[21] Id. at 537.

[22] Id. at 542.

[23] See Rachel Jessica Wolff, Whose Constitutional Authority Is It Anyway? Nondelegation, the National Emergencies Act, and the International Emergency Economic Powers Act, 21 The Georgetown Journal of Law & Public Policy 2 (2023).

[24] National Emergencies Act, Pub. L. No. 94-412, 90 Stat. 1255 (1976) (codified at 50 U.S.C. §§ 1601–1651).

[25] See Rachel Riegelhaupt, “Manufactured Emergencies: The Crisis at the Core of the National Emergencies Act,” New York University Journal of Legislation and Public Policy 23, no. 1 (2020).

[26] Elizabeth Goitein, “The Alarming Scope of the President’s Emergency Powers,” Brennan Center for Justice at New York University School of Law, August 15, 2019, https://www.brennancenter.org/our-work/research-reports/guide-emergency-powers-and-their-use. (123 laws can be unilaterally called upon. The other 13 are available to the President’s discretionary powers through congressional declaration).

[27] International Emergency Economic Powers Act, Pub. L. No. 95-223, tit. II, 91 Stat. 1626 (1977) (codified at 50 U.S.C. §§ 1701–1707).

[28] INS v. Chadha, 462 U.S. 919 (1983).

[29] White House, “Declaring a National Emergency Concerning the Southern Border of the United States,” Federal Register 84, no. 35 (February 20, 2019): 4949-4951, https://www.federalregister.gov/documents/2019/02/20/2019-03011/declaring-a-national-emergency-concerning-the-southern-border-of-the-united-states.

[30] Id.

[31] Sierra Club v. Trump, No. 19-16102 (9th Cir. 2020).

[32] The White House, “Fact Sheet: President Donald J. Trump Declares National Emergency to Increase our Competitive Edge, Protect our Sovereignty, and Strengthen our National and Economic Security,” April 2, 2025, https://www.whitehouse.gov/fact-sheets/2025/04/fact-sheet-president-donald-j-trump-declares-national-emergency-to-increase-our-competitive-edge-protect-our-sovereignty … /.

[33] Talya Minsberg, “A Timeline of Trump’s On-Again, Off-Again Tariffs,” The New York Times, March 13, 2025, https://www.nytimes.com/2025/03/13/us/politics/trump-tariffs-timeline.html. (One week later, President Trump reversed reciprocal tariffs for 90 days, with an exception for China).

[34] Alan Rappeport, “Trade ‘Emergency’ Follows Decades of Trump Anger That America Has Been Ripped Off,” New York Times, April 3, 2025, https://www.nytimes.com/2025/04/03/us/politics/trump-tariffs-trade-deficit-manufacturing.html.

[35] Id.

[36] Eileen Sullivan and Coral Davenport, “Trump Sees National Emergencies Where Experts Say There Are None,” New York Times, January 22, 2025, https://www.nytimes.com/2025/01/22/climate/trump-national-emergencies.html.

[37] George W. Bush, “Executive Order 13224: Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism,” Federal Register 66, no. 186 (September 24, 2001): 49079-49082, https://www.state.gov/executive-order-13224/.

[38] Id.

[39] Gundy v. United States, 588 U.S. 128 (2019).

[40] Gundy v. United States, 588 U.S. ___ (2019) (Gorsuch, J., dissenting).

[41] See Johnathan Hal, “The Gorsuch Test: Gundy v. United States, Limiting the Administrative State, and the Future of Nondelegation,” Duke Law Journal 70 (2020): 175–215.

[42] Thomas Jefferson to Samuel Kercheval, July 12, 1816, in The Writings of Thomas Jefferson, ed. Andrew A. Lipscomb and Albert Ellery Bergh (Washington, D.C.: The Thomas Jefferson Memorial Association, 1905), 15:40-41.

[43] George F. Kennan, Memoirs: 1950-1963 (Boston: Little, Brown, 1972), 322-325.